Is bias one-sided? Bill Oliver

Muriwhenua Land Report
Waitangi Tribunal
GP Publications, $99.95

If academic historians need a reminder that they do not have a corner on the past, they could not do better than read this report.  It is a formidable and elaborate intellectual construct and merits lengthy examination. It continues the Waitamgi Tribunal’s sustained effort to read New Zealand history in a way which places the Maori experience and the Maori memory at its centre. The recent Taranaki Report did this too but dealt with the simpler matter of confiscation and is less relevant to the large number of pending claims based upon land purchase policy.

I have no problem with a design that puts Maori at the centre of the story nor with the policy positions that result from it (and in fact I made a small contribution in this direction as a witness before the Tribunal). But I am concerned about the strength of some of the structural elements in the design which, it seems to me, are asked to carry too heavy a load.

The tribunal is painstakingly transparent about the kinds of evidence it has marshalled to support its conclusions. First, there are the insights drawn from anthropology as to the values, norms and laws of Maori, Polynesian and comparable indigenous peoples, as they relate to the land and its inalienability. Second, there is the oral tradition preserved among Muriwhenua Maori. Third, there are documentary records, chiefly in government archives. The second is understood in the light of the first and the third in the light of the first and the second taken together.

Although for the most part empirical evidence is carefully rehearsed and dissenting views noted, especially in relation to specific situations, the report’s core argument is inevitably (given this kind of prioritisation) schematic to a degree and verges on the dogmatic. A general view less inflexible in spirit and more empirical in method would have been more convincing and, politically, probably more serviceable.

The central assertion is simple, though its elucidation is more complex. It is that all pre-1865 transactions in the Muriwhenua rohe by which land was transferred from Maori to pakeha hands were understood by the Maori parties to be conditional grants of use rights, not irrevocable transfers of ownership. They had (in the terminology of British law) more or less the character of leases and not of sales. The tribunal contends that this Maori understanding was so persistent and unshakeable that the transactions lack the mutuality necessary to their being considered as sales in the British sense.

The case for this reconstruction rests upon four major lines of argument. The first is that Muriwhenua Maori preserve a tradition that the transactions were of this kind. The second is that this tradition is confirmed by anthropological study of Maori and Polynesian beliefs about the inalienability of ancestral land. The third is that all the evidence to the contrary is one-sided and in the main either ill-informed or self-serving, because it derives from pakeha and mainly governmental sources. And the fourth is that the Maori words used in the land deeds should be given a meaning in line with the values revealed by tradition and by anthropology and that this interpretation is confirmed by recorded Maori actions and utterances.

All these positions are contestable; to some extent they were contested (but not exhaustively) before the tribunal. Is the anthropological witness so unanimous and is the structuralist theory which emphasises the near-immutable nature of cultural norms so universally held? Is oral tradition quite as impeccable? May it not also exhibit one-sidedness, misinformation and self-interest? Is official archival evidence so entirely unreliable? One-sidedness should be taken into account but should it be relegated to the realm of “error and bias”? And is information about the contemporary meanings of Maori words used in land deeds sufficient to encourage certainty?

These questions are put forward in order to note that they pose some problems which have not been discussed at any great length by historians and anthropologists. The report’s references bear this out. Almost all are to submissions made before the tribunal on behalf of either claimants or the Crown. The tribunal hearings, which became seriously bogged down in disputes about the meaning of such words as tuku and hoko, were inevitably partisan and inconclusive. They provided a valuable starting point for an important discussion which will certainly continue but no more than that.

It is unfortunate that the tribunal felt obliged to make such a premature pronouncement so emphatically — and the more so because this element of overkill weakens a good case for remedy. The overall conclusion that successive governments dealt with Muriwhenua Maori in ways which were detrimental to their wellbeing and which now call for redress can be established by considerations which do not suffer from such contestability. Certainly, these less contentious arguments are rehearsed in the report; indeed they are effectively summarised in a brief paragraph on “the broad nature of the claims” on p7. But for the most part they are obscured by being absorbed into the assertion that there were no real sales of land from the 1830s to the 1860s.

Two sets of transactions are involved. First, there are the “old land claims” deals of the pre-1840 period, by which early settlers acquired substantial pieces of land. Second, there are the lands acquired by the Crown after 1840. The former preceded the introduction of colonial government; they were then investigated by Crown commissioners who, in a number of cases, made limited awards to the settlers. The balance of land claimed but not awarded was taken over by the Crown and not returned to the original Maori owners. The second set represents the far north’s share of the governmental land buying spree initiated by George Grey and carried on by Donald McLean. Taken together, the two phases cost Muriwhenua most of their better land by 1865; the process was to continue into the twentieth century.

The argument to which the report constantly returns is that all these transactions are invalid because in the mind of the Maori “sellers” they were not relinquishing ownership and final control. However, at the same time it advances arguments which do not depend upon this contentious position. Even within its own terms of reference, the Crown could have returned the surplus from the old land claims to the original Maori owners. It would have been sound policy as well as simple justice to have done so; to some extent Maori were led to believe that this would be done.

The tribunal is also well aware that the Crown’s purchasing policy in the 1850s and 1860s can be faulted on a number of grounds, including defective surveys and underestimated acreages, undue pressure and exploitation of poverty, administrative haste, carelessness and sharp practice, failure to provide and secure reserves, the extinguishment of Maori title whatever the prospects of subsequent settlement and a persistent refusal to take Maori interests and protests seriously. The report puts a good deal of emphasis upon the way in which Maori were encouraged by Crown purchase agents to transfer their lands in the expectation that they would share in the benefits of settlement and economic growth. It goes on to suggest that the state thereby placed itself under an obligation to promote development in the far north but that is unrealistic. The gravamen of the charge to be brought against the Crown is that its agents, whether sincerely or not, made promises which it lacked both the power or the right to fulfil. Quite without the help of the assertion that no real sales ever took place, such arguments provide a basis for findings favourable to the claimants — possibly a more secure basis.

This can be illustrated by a simple example. The report notes the refusal of Muriwhenua Maori to join the anti-land selling movements of the 1850s and the insurgency of the 1860s and convincingly attributes this to a belief that they would benefit from partnership with government and settlers. But it goes on to assert that this partnership goal reinforced their determination never to sell land but simply to let settlers use it under conditions. There is no necessary connection between the two; the partnership programme could have been carried through by selling land quite as much as by allowing it to be used.

More research and debate will clarify the issues discussed here. Maybe, even, some sort of consensus will emerge — though it is the kind of argument which, for want of evidence one way or the other, is likely to remain disputed ground. The “no sales” argument is likely to remain vulnerable. In addition, it may weaken the report’s policy impact. The business of resolving claims is shifting from loss from confiscation to loss brought about by land purchasing. It is well enough known that there is a good deal of resistance to arguments based upon the extent and nature of land acquisition by state purchase. “After all, they sold it, didn’t they?” is a common response from politicians, officials and members of the public. It is not likely that this attitude will be sufficiently met by an argument that they did not in fact sell it at all.

Settlements thus far have been limited to situations which arise from identifiable one-off state actions in the past of a patently unjust kind, especially punitive confiscation. Such actions were limited in number; the government seems ready enough to write them off as unfortunate aberrations. But in the Muriwhenua claim and in major North Island claims waiting in the wings, the government is being asked to accept as grounds for remedy the results of deliberate policies consistently pursued for the best part of a century. Muriwhenua is the first of the really hard cases; government (and public) agreement to the propriety of remedy in these claims will require arguments of the greatest possible cogency. Hence it may prove to have been imprudent, as well as incautious, of the tribunal to place so much reliance upon an argument which is sure to prompt a good deal of doubt and dissent.

For that reason it is all the more important to emphasise that the report also presents an array of less vulnerable arguments which lead to the same conclusion — that in Muriwhenua the actions of the state in purchasing land were severely prejudicial to Maori interests and wellbeing and that it is now time for this damage to be mitigated — for it can never be undone — by redress on a major scale.

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

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Posted in Maori, Non-fiction, Politics & Law and Review
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