Getting facts on your side, Bill Oliver

Waikato Raupatu Claims Settlement Act 1995

For the most part history is published in books and journals and the people who do it are named. Anyone who reviews a historical publication is expected to keep a sharp lookout for errors and fallacies and, if they are found, make them public in a statement to which a name is also attached. The names are important, for part of the reviewer’s job is to detect and expose ideological vested interests and to tell readers about them.

But if history turns up without any names attached and in a kind of publication which would usually not be noticed in the reviews, it becomes difficult to discharge this duty. Even so, it should not be allowed the immunity from criticism which, in this instance, the form of publication would appear to invite. The publication in question is a statute which began but, significantly, did not finish its career as the Waikato‑Tainui Raupatu Claims Settlement Bill. (For good reason, the word Tainui was dropped, though most journalists and politicians do not seem to have noticed that.) Specifically, it is the three‑page preamble to the bill, introduced by the apparently innocent formula “WHEREAS”, a phrase defined in the OED as “taking into consideration the fact that”. Some of the “facts” are rather unlikely ones.

Facts have a comfortable feel about them; everyone wants them on their side. Some people are prepared to go to unusual lengths to enlist them. I once heard a Roman Catholic theologian discuss the question of whether papal infallibility could encompass certain historical facts as well as theological doctrines. He was inclined to believe that it could, because doctrine is an explanation of events and so entails the reality of the events being explained. Such events have to be established beyond the vagaries of evidence, for facts, after all, are slippery customers. In this instance Parliament seems to be following the Vatican rather than the Westminster model.

This brief note is written not to question the justice of the Waikato settlement or of any future settlement which brings some redress to the victims of confiscation. It looks at only a small and non‑substantive part of the measure, but it does so in order to identify a fault which could have more serious consequences in other cases. Around the time the Waikato settlement was drawn up the government issued the Crown Proposals (reviewed in New Zealand Books, March 1995) in which it emphasised that the standard of “historical verification” underpinning such settlements should be as high as that required by the Waitangi Tribunal. Here, if only in a minor way, that standard has not been achieved. (Not that there was any great need for fresh research to establish the general injustice of the invasion of the Waikato and the confiscations. There has been a sufficient historical consensus on that for at least a quarter‑century.)

Indeed, if the bill had to have an historical preamble ‑ and one should ask who insisted upon this unusual feature – it would have been sufficient to note the existence of this consensus. Instead, we are given a rather surprising version of some crucial events. Did those chiefs who pledged their land to the King give up to him “ultimate authority” over it and “ultimate responsibility” for their people? Were they not, much more conditionally, conferring upon the King a kind of veto to prevent further land sales?

Second, if less explicitly, a rather bland sentence gives the impression that in 1863 the military forces of the Crown quite abruptly “initiated hostilities” by invading the region. But the situation was pretty disturbed in 1862 and Kingitanga Maori were not without a share in the responsibility for that. Of course, the government failed to explore the possibilities of peace and the crossing of the Mangatawhiri was entirely out of proportion to the situation. But the government’s forces did not all of a sudden burst in upon a peaceful scene.

These matters are well enough known; here the preamble is simply (but seriously) misleading. But a third item in the preamble, because it makes a bold assertion about a matter which has not (even for the purposes of the settlement) been carefully researched, will take a little more space to explore. This is the return of some confiscated land to Maori ownership and use, about a quarter of the 1.2 million acres originally taken in the Waikato region. The question is: to whom did it go back?

The bill, as given its first reading, was both unambiguous and incorrect. Paragraph F of the preamble stated that it was returned “to individuals (other than those who had fought for the Kingitanga)”. The attention of the Crown Law Office was drawn to some evidence indicating that a significant amount of the returned land was awarded to “returned rebels”. The bill emerged from the committee stage (and went on to pass its second and third readings) stating that the land in question had been “returned … generally not [italics added] to those who had fought for the Kingitanga.” This is a curious, even an evasive, phrase; “generally not” can only mean that those not included within the formula were too few in number to matter.

But was this so? There has been little written on the question and the research commissioned for the purposes of the settlement makes no reference to official reports of the early 1870s which suggest that a considerable amount of land was returned to a considerable number of people designated “returned rebels”. This, too, was pointed out to the Crown Law Office, which responded by saying that there was no time for further changes and that the phrasing “generally not” was “fairly flexible … in the context of the preamble as a whole”. (I am still wondering what that statement could possibly mean.)

The evidence which makes it likely that “generally not” is at best a risky and at worst a deceptive phrase is not hard to find; in fact I stumbled upon it when looking for something else in the widely accessible Appendices to the Journals of the House of Representatives (AJHR).

Briefly, if one looks at AJHR 1873 C‑4B p4, one finds a statement that while 15% of the land originally confiscated was returned to “natives (loyal)” as much as 10% of it went to “natives (otherwise)”. This 10% is said to comprise nearly 120,000 acres. An earlier report, AJHR 1871 F4, under the heading “Lands allotted to Returned Rebels”, lists some 473 grants and notes (p3) “In most cases certain named chiefs or heads of families hold possession of these lands in trust for their people.” The phrase “generally not” is at variance with both the 10% and the 473 grants. This was pointed out to those responsible for the drafting.

I do not know if further research would confirm that land was in fact returned in this quantity to this body of Kingitanga supporters. But nor do those responsible for drafting the bill know that it was not; they do not have the right to pretend that they do know the answer. For, in spite of the Government’s insistence upon thorough research before a settlement is finalised, this settlement was effected without adequate research on this issue.

It seems that early in the negotiation process three pieces of research were commissioned: one on the general shape of government policy and its implementation, one on the work of the Compensation Courts (appointed in the 1860s to make awards to Maori from the area confiscated) and one on “block histories” ‑ a kind of blow by blow, or block by block, account of what actually happened to the land. There is no indication that the second and third of these were ever completed. But it is precisely in these fields, the Compensation Court and the block histories, that the truth of this matter could be revealed.

The first report was completed by Ann Parsonson and it is for the most part an excellent piece of work. Unluckily, it is less than excellent in a brief chapter dealing with the award of land to “returned rebels”. No item of evidence before 1877 is examined and the items which are examined do not bear upon the question of what actually happened to the land. One should sympathise with Parsonson; this matter was probably outside her original brief and she may have had to scramble to cover the ground left vacant by the reports never completed (or, if completed, not made generally available).

All this would be more serious than it is (and it is not merely pedantic to insist that it is quite serious) if the overall rights and wrongs of the Waikato war and confiscation had not already been established independently of research commissioned for the settlement. But other cases are in the offing for which the existing research base is much less adequate ‑ the Taranaki wars and confiscations are a great deal more complicated. If the research base for a future Taranaki settlement is not as thorough as the Crown Proposals lead us to expect we could end up with a real mess.

Why, it has to be asked, did those responsible for the settlement not take the trouble to get the history right? There is no shortage of money for historical research within the claims resolution process. The Crown Law Office and the Office of Treaty Settlements, as well as the Tainui Maori Trust Board, have access to the services of capable and experienced historians. They, at least, should have been aware of the fragility of some of the assertions in this preamble. One can only conclude that they spoke and were not heeded.

But why should that be so? Perhaps because the Government is in a hurry to get these confiscation‑based claims out of the way and is ready to accept a mere prima facie argument ‑ something the Crown Proposals specifically rejects. Perhaps because of another kind of hurry‑up ‑ the Queen was on her way and the trust board made clear that it wanted her signature on the act. Probably the minister was also keen on that: another fine photo opportunity. In such a context, careful history could go by the board, luckily in this case without unduly extreme consequences. Politics rules ‑ OK?

But one little mystery remains. It seems fair to assume that the Waikato negotiators wanted the version of history given in this preamble; after all, it canonises their ancestors and demonises former governments. That is understandable enough, even if a little saddening. But why, in the process, did they not see that they were maximising the number of Walkato people who could be charged with failure to support the Kingitanga cause? For, according to the preamble version of history, there must have been enough of them to absorb almost all, not just some, of over a quarter‑million acres of land.

Bill Oliver is a historian who wrote Claims to the Waitangi Tribunal in 1992 and currently works on tribunal claims.

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