Crown Proposals for the Settlement of Treaty of Waitangi Claims
Hon Douglas Graham,
Department of Justice
Though the text of the Crown Proposals is a good deal less euphoric in tone than the hype which accompanied their release in December, it still manages to promise a great deal more than any realistic government should have hoped it could deliver. “The Government,” says the minister in his foreword to the “Summary” booklet, “on behalf of the Crown has to resolve the claims honourably so that the injustices [of the past] can be put behind us once and for all.” (p5) And later in the same booklet: “All proven historical claim will be settled from the envelope…” (p25) Further: “There will have to be a final date for claimants to file historical claims…” (p25) And most emphatically: “The Crown believes that for its proposals for the settlement of all historical grievances to be acceptable to all New Zealanders, settlement will have to be full and final.” (p27)
But in the event the proposals have had precisely the opposite effect. Maori responses have been uniformly hostile and run the whole gamut from the dignified rejoinder formulated at the Turangi hui to the disrespectful rejection at Waitangi. Pakeha backlash is mounting daily. A policy aimed at the full and final settlement of all grievances has succeeded in sharpening the conflict prompted by those grievances. For the Government that is probably an unexpected and a disappointing outcome. But if Government is surprised, it has no one but itself to blame. It should look to its own apparent historical ignorance and that of its advisers.
The 51-page booklet setting out the Government’s “Detailed Proposals” reveals a lack of historical analysis and of any statement of general principles. Not far off half of the document is devoted to the processes to be followed once negotiation has commenced. Substantial sections are allocated to ways in which the Government will deal with three kinds of Crown property – the conservation estate, natural resources and lands gifted to the Crown. These sections are more concerned with what the Government will not do than with what it will do. Still, from these sections it may be deduced that the Government is almost wholly concerned with historical situations in which the Crown broke a contract or confiscated land unjustly (pp 19 and 23; other minor situations are also noted at these places).
The minister’s public statements have also limited the range of grievances which the Crown proposes to consider well-founded. Breach of contract and confiscation on the part of the Crown would justify redress in three big claims (Ngai Tahu, Waikato and Taranaki). He has given the impression that some such small number would exhaust the list of justifiable claims. Because, perhaps, someone told him that there were extensive confiscations on the east coast, he has subsequently extended the number to half a dozen.
But in fact Maori claims cover a much wider range, from intellectual property to natural resources; much of the hostility that has greeted the proposals probably stems from this procrustean limitation. Of course, Maori are told repeatedly in these proposals that they can have as many grievances as they like and of whatever kind they like and that the tribunal can go on inquiring into them. But they need not expect any concrete result for, as already noted, “all proven historical claims will be settled from the envelope” and the envelope is going to encompass only a very narrow range. As this argument will go on to show, even within the restricted scope of claims concerning land, confiscations are less significant than purchases. (The only notice taken of the effect of land sales is a perfunctory comment on p22 of the “Detailed Proposals”; this does not suggest that they will be taken seriously.
Though the Crown proposals are for “the settlement of Treaty of Waitangi claims”, they do not contain any general analysis of such claims; by implication they severely narrow the definition of claims which the government will consider valid.
Under the legislation setting it up and defining its functions the tribunal may hear claims from Maori (soon to be redefined to exclude individuals and non-tribal groups). To succeed, claims must have three characteristics: they must arise from acts or omissions of the Crown; the acts and omissions must be shown to be prejudicial to Maori interests; they must be shown to be in breach of the obligations to Maori which the Crown acknowledged through the Treaty of Waitangi.
These criteria may at first glance appear clear and simple. If a Crown agent bought land for the Crown and signed a deed in which Maori were promised reserves and the reserve were not made, this would clearly be prejudicial to Maori interests. So would the confiscation of land in the 1860s to punish so-called “rebels”. Both acts of the Crown could readily be held to be in breach of the treaty. But few claims are as simple as that; most identify a wide range of Crown acts and omissions. In few, if any, cases is there a simple correlation between the area covered by the claim and any one identifiable Crown action, such as confiscation.
For example, a claim may be supported by arguments designed to show that through a long series of Crown purchases and private purchases effected through legal machinery set up by the Crown, though they were individually more or less legally carried through, they must be judged in terms of their cumulative and long-term effect. Those consequences are revealed by conditions of near-landlessness, economic decline and social deprivation. Such arguments derive their cogency not from any one specifiable act of official impropriety but from a demonstration of the prejuciidal effects of public policy consistently and legally implemented over a long period of time.
In this way, it is argued that the manner in which colonisation was carried out, if not quite colonisation itself, was prejudicial to Maori and in breach of the protection promised to Maori by the Crown in the Treaty. However, colonisation itself is not immune from attack within at least the arguable parameters of the treaty. In the second article of the Maori version (as translated by Hugh Kawharu) the Queen promises to “protect” the “chieftainship” (tino rangatiratanga) of Maori. This can become the basis for an argument, not just against the mode of colonisation, but against the institution of colonial government over the whole country and so against the legitimacy of successor governments.
While it is unlikely that the tribunal would consider itself competent to base any finding upon the view that colonisation itself was a breach of the treaty, it does pay serious attention to the kind of public policy arguments which question the mode, though not the fact, of colonisation.
Arguments of both kinds are common enough among Maori. They range from assertion of sovereignty of Maori over the whole country, through demands for separate and equal Maori political institutions, to arguments for constitutional reform to bring about effective power-sharing.
The purpose of this excursus is to show, first, that Maori claims are wider than treaty claims, and second that Treaty claims in their turn are wider than those endorsed by government in the Crown Proposals. The claims and grievances which the Government there acknowledges are entirely at the “clear and simple” end of the spectrum of Maori demand. It is altogether too easy to mistake this bit of the spectrum for the whole; the Government appears to have done just that. It appears to assume that this is all that Maori are really concerned with – or more likely, that this is the only kind of concern that merits attention.
In effect the Government has said, or allowed itself to give the appearance of saying: “There are only a few big claims that matter. They arise from clear and simple injustices. They can be settled in short order and at no great cost.” Had it been better advised, had it refrained from overselling its proposals as “full and final”, it could have aimed at a rather less elevated target, one which it may well have managed to hit. Almost everyone (except those, both Pakeha and Maori, who are convinced that conflict should continue) would welcome an effort by the Government to speed up the settlement process and get a few simple claims out of the way. That could have been done, and it seems to have been done already in the Tainui negotiations, without making absurd statements about settling everything that needs to be settled, in a few years and at moderate cost.
If the Government had tried to make the few modest gains which are all its proposals really encompass, it would probably not have been enthusiastically acclaimed, but it would surely have excited less hostility than it is now receiving. It might have actually done some good. Its chances of doing so are by now quite remote. But it may not be too late, even at the risk of alienating its redneck fringe and of dashing the hopes of those looking for a quick fix, to retreat to this more pragmatic position.
As these proposals deal only with claims and settlements, they can hardly be expected to deal with the problems of powers arising from the basic fact of colonisation and colonising policies pursued by past governments. Not that considerations of power are absent from the Proposals, even if the word is seldom used. Power, it is made quite clear, is something which the Crown has and will use to control the entire negotiation process and its results. (Take a single page almost at random: “The Crown will recognize…”, “The Crown will not accept…”, “…the Crown will not recognize…”, “The Crown does not accept ” (Detailed Proposals, p22).
But the two initial Maori responses to the proposals, at Turangi and at Waitangi, despite vastly differing styles, fastened upon the problem of power. They said that fiscal and time constraints upon the settlement process were unacceptable and that the real matter at issue was power. That message was not new; however little Pakeha may have heard it, it has been the constant burden of Maori demand for more than a century. Especially over the last quarter century, Maori have devoted a great deal of attention to power – understandably, because in a general political sense they do not have any. Their arguments are varied – for Maori sovereignty, for self-determination, for constitutional reform. Which form they eventually take, if in fact they do cohere into a broadly supported programme, is a matter best left to Maori, uninterrupted by Pakeha expressions of opinion as to what is or is not possible, appropriate or desirable. It is more important for Pakeha to try to understand the situation from which the demand in its various forms arises than to rush to judgment about whether this or that will work.
In fact, Pakeha discussions of the matter seem almost invariably to conclude nothing will work, especially if the proposal is for a territorial partition. But there is no need to go on from that unremarkable conclusion to the assertion that no constitutional change of any kind is feasible. That is simply a Pakeha way of trying to determine what the future will be in order to remain in control of it.
We are all inclined to second-guess the future – to say that something we want to happen must happen and that something we do not want to happen cannot happen. Both attitudes are common among Maori as well as Pakeha. They are ways of expressing either contentment or discontent with the present. The only thing that can be confidently said about the future is that we do not know what it will be. In the meantime, we should have enough on our hands trying to understand the present.
The current talk, in the Crown Proposals and prompted by them, of “full and final” settlements – and on and off we have had them for at least a century – is no more than the Government’s way of second-guessing the future. By the time this particular future was no more than a few weeks old it was already clear that it was going to take a very different shape. There is some rough justice in that; such defective history does not deserve any kind of future at all.
Could one expect the Government to pay heed to the basic Maori demand for power and the Maori quarrel with colonisation? One could certainly not expect it to agree that the demand was reasonable and the quarrel a just one. But one could surely expect the Government to recognise the reality of both the demand and the quarrel. It would then at least have avoided giving the impression that it knew better than Maori what Maori wanted. And that would have saved it the disappointment and hurt which it (or at least its best intentioned members) were sure to suffer from rejection of a gift they should never have valued so highly.
For if the essential Maori quarrel is with colonisation and with the Crown as the dominant colonising agent, no “gift” from the Crown is ever going to be welcomed as sufficient to bring the quarrel to an end. Nothing, quite possibly, ever will be enough to bring that quarrel to an end. But a less ambitious proposition – to settle a few obvious injustices, to work more effectively on the less obvious and to talk about the matter of power – might have done us all a bit of good. As it is, the Crown Proposals have undoubtedly done us quite a bit of harm.
The quarrel, then, is not with a few injustices committed by Crown agents as they went about the otherwise legitimate business of colonisation. It is with the transfer of power from one people to another, with the consent of the former if it could be secured by this or that inducement, but by force of arms and force of law if need be. Colonisation was imposed by the colonisers; the fact that some of the colonised consented does not alter the fact of imposition.
Maori, like colonised peoples generally, responded in a diversity of ways to colonisation. Two broad responses may be identified. The first was to take whatever opportunities were permitted by the colonising power, perhaps from idealistic principle, perhaps from an uneasy conscience, and more likely from both at once, to secure at least marginal advantages and so to moderate the effects of colonisation. The gains were chiefly of an economic kind – in our times a share in the fishing industry, a few thousand acres of land, an injection of cash resources. The Waitangi Tribunal for the greater part operates within this limited context.
The second response is to pay less attention (but not none at all) to such marginal gains and to concentrate on the matter of power at the heart of colonisation. It is to attempt to secure, at least in some measure, its transfer back to the descendants of its original possessors. It does not matter, even if Pakeha who should know better advance this nonsequitur, that pre-colonial power was exercised in a form of tribal polity, the essential concern is who held it, whatever the form then, or the form which might emerge later.
These two responses are not so very far away from each other. Gaining economic resources is a way of getting into a position to bid for a share of political power – anyone who has muscle within the economy will enjoy, even if informally, a share of power within state institutions. That approach is not inconsistent with a claim for a direct share of power through institutional reform. Either way, the goal is power, and the structures which are to be (at least) modified are those of a post-colonial state and society.
Pakeha are likely to become more accustomed to these kinds of political demands in the future than they have been in the past. Though political demands have been made, continuously, for more than a century, the operations of the Waitangi Tribunal, for the most part concerned with claims for economic resources, have directed Pakeha attention to this kind of demand. At least this merit mark may be awarded to the Crown Proposals – they have prompted from Maori a level of political demand that commands Pakeha attention. There is a reasonable prospect that in future Pakeha will avoid false hopes of a speedy and near-total solution.
Such facile hopes are deeply entrenched in Pakeha expectations. They arise from a genuine but delusive conviction that this country has been uniquely characterised by a prevailing spirit of racial harmony. Pakeha too readily believe that their colonial story is one of a kind within the history of colonisation, much more decent than anything that went on in Australia and Africa. It is true there were few atrocities on a major scale. But, less spectacularly, large numbers of the colonised suffered and died from disease and malnutrition. Colonisation is always lethal to the colonised, whether by quick means or slow.
Consequences of that kind are certain to generate among the survivors a lasting rejection of their incapacity to determine their future, or even to influence in a major way. But it is a rejection limited to the control of the instruments of power. It does not entail, either in logic or in fact, a rejection of everything else, such as medicine, agriculture and technology, that came in the baggage of the colonisers. The essential quarrel is with the way in which colonisation brought about a transfer of power, it is not with the way in which it also brought a whole range of skills. An invasive culture is not, from the vantage point of the invaded, a package deal including everything from eating habits to political institutions. No one, surely, supposes that Japan is a colony because it has symphony orchestras and KFC? If, then, we want to understand what is going on in New Zealand today we should fix our attention on matters of power and place our situation within the general history of colonisation and attempts at decolonisation.
Decolonisation is a term usually applied to the retreat of direct and formal imperial power systems in Africa, Asia and the Pacific, and the re-transfer of power to those from whom it was taken. The demand for that re-transfer, whether realistic or not, lies at the heart of Maori assertion, as it has since the first establishment of colonial government. It does not imply any wish to revive the political and economic norms of pre-colonial times. That supposition is simply a variant of the grass skirts rhetoric – it is odd to find it proposed by people whose own inherited institutions have evolved in quite recent times from absolute monarchy to representative democracy. Possibly the implication is that “primitive” societies cannot evolve and change and that only “civilised” societies can.
Even a passing acquaintance with Maori history over the last century and a half would reveal the emptiness of that notion. In the face of colonisation Maori society has displayed consistent inventiveness and adaptability, often by adjusting to Maori purposes techniques and forms taken over from the colonisers. There is no reason to believe that this creativity and its capacity to adapt have come to an end.
Colonisation is a complex and untidy process. While it deprives the colonised of power it transmits to them models and methods which can be employed to resist that process and to mitigate its consequences. To that extent colonisation is indeed irreversible – both the objective and the means of achieving it are post-colonial. What is reversible is the goal towards which these means are directed.
The argument set out here, that the core of Maori protest is directed against the political results of colonisation, runs directly counter the view implicit in the Crown Proposals, that “reasonable” protest will be satisfied if limited remedies are provided for specified injustices. For their part, Maori leave us in no doubt that, as they see it, colonisation itself (for some) or the overall mode of colonisation (for others) was unjust and that this institutionalised injustice, not a small number of abuses, must be dealt with. An equivalent candour could not probably be expected from this or from any other conceivable government. Yet these proposals do imply, though they do not express, the view that give or take a few aberrations, colonisation was itself right and proper and its general results beneficial to all New Zealanders.
These days Pakeha are less likely to point, as their predecessors did, to the civilising mission of the British race as the justification for being in New Zealand. They are more likely to assert their own tangata whenua status when contesting Maori claims to special status. The whole business is, of course, faintly preposterous – both Maori and Pakeha are in fact here to stay and no other starting point is remotely conceivable. Still, debating points of this kind have an element of symbolic significance.
It is of interest that Pakeha turn to a Maori concept to prop up their presence. But it is more significant that in Pakeha rhetoric this borrowing serves the same purpose as the earlier “civilising mission” stance. Both confirm the rightness of the Pakeha presence in New Zealand and, because that presence remains politically dominant, confirm the rightness of Pakeha power. Pakeha as tangata whenua (or, as Keith Sinclair used to put it, as “native-born”) are still Pakeha as the residual legatees of colonisation.
That pursuit may be a little counter-productive if taken too seriously. Pakeha are not going away, they will not cease to be a substantial majority of the population; they will remain, if they want to be, politically dominant. They would do better to examine their past and consider their future in as dispassionate a manner as possible, and not be deflected from this task by responding defensively to suggestions that they have no right to be here.
In particular, the present-day successors to the settlers should be constantly aware that they are the major beneficiaries of a colonising process which inflicted suffering and lasting loss upon the people among whom the settlers came, a people whose descendants are neighbours still experiencing the long-term disadvantageous results of that process. These results (which run from bulldozers ripping through wahi tapu and urupa to employment, health and education levels), constitute the dark and too often hidden side of the benefits the Pakeha majority has inherited.
From this perspective the requirement upon Pakeha is that they recognise this situation and accept responsibility for at least the mitigation of its persisting consequences. Whether they agree or disagree with the kinds of Maori demand they hear is beside the point; they should at least try to see those demands as embedded in a history they have shared with Maori, and shared inequitably.
The Crown Proposals have at least this merit – they acknowledge that through the punitive confiscation of land in the 1860, colonisation was effected by unjust means, that Pakeha still benefit and Maori still suffer from that injustice and that something should be done to rectify it. It is unlikely that a Pakeha minister of the Crown has been as candid as Douglas Graham on a matter of such considerable (if limited) importance. But while his candour should be applauded, he must be urged to approach other colonial consequences with the same candour and the same readiness to make redress.
Though there is no general statement on the matter in the Crown Proposals, the section on natural resources sets out conditions for “establishing a well-founded grievance” (pp22-23) which surely invite extension. Of the five conditions set out, two are pre-eminent: “the Crown broke a contract” and “the Crown confiscated a resource wrongfully, eg, as part of a land confiscation”. Despite the limiting context, it is surely reasonable to conclude that the Government sees breach of contract and punitive confiscation on the part of the Crown as unjust and so providing an occasion for redress. That conclusion is supported by statements made by the minister in relation to Ngai Tahu (breach of contract) and Waikato and Taranaki (confiscation). Here attention will be directed to confiscation as a test case.
There has been a historical consensus for some decades that confiscation as a punishment of “rebels” was unjust in principle and inequitable in execution. It now has official endorsement. But though it provides an obvious example of injustice enacted in a conspicuously legal manner, it is not the only one or even the major one. Crown land purchases, the operations of the Native Land Court and the compulsory acquisition of land for public purposes provide further examples, taken together much more significant than confiscation. Those other forms of acquisition were all effected in a legal manner, they can also be shown in many instances to have led to lasting injustice.
The major ideological innovation in the Crown Proposals arises from the acknowledged conjunction of strict legality and patent injustice in the Crown’s actions effecting confiscation and, arguably, in a number of other devices employed by the Crown to secure land from Maori.
Confiscation was effected by valid colonial laws which received the assent of the Imperial Government. One could hardly imagine a higher or more explicit level of Crown action. It was implemented by duly appointed administrators and judicial officials who, except occasionally and often inadvertently, were not breaking the law. The same could be said in general of the laws and agencies by which land was acquired from Maori through purchase, Native Land Court determinations and seizure for public purposes.
While many arguments brought before the Waitangi Tribunal are concerned with illegal actions on the part of Crown agents – in effect, the Crown breaking its own rules – many others relate to the essential injustice, especially in terms of their cumulative consequence, of their perfectly legal actions, for example as land purchasers for the Crown, or a judges of the Land Court. Here, too, the conjunction of legality and injustice is characteristic.
If the Government persists in singling out confiscation for privileged attention, it will seriously misrepresent the true historical situation. That would divert attention away from the most important official strategies employed to part Maori from their land and so away from the major social and economic impact of colonisation. That impact is that by the early twentieth century most tribes had so little land left that their condition was near-landlessness. In New Zealand as a whole confiscation was a minor, though a more readily recognisable, contributor to this result.
The major contributors were: first, until 1865, the Crown exercising its monopoly of land purchasing under the preemption provisions; second, purchasing by private individuals and companies as well as by the Crown after the Native Land Court had made land available for purchase; and third, the taking of land for public purposes under a whole range of statutes and regulations.
The total process, from the 1840s on, was characterised by purchasing at bargain basement prices from sellers who were patently unequal and disadvantaged partners to the transactions. Such purchasing was the major mode of colonisation both in the decades that preceded the confiscations of the 1860s and in the decades that followed. The whole process was a long-drawn-out act of state, either by direct Crown purchase or by purchase by individuals enabled to do so by the act of state setting up the Native Land Court.
The purpose of the state, exercising its powers in the name of the Crown, in promoting land alienation on such a massive scale, was to carry forward and to complete the programme of colonisation. Politicians, judges and administrators saw all this as an unambiguously moral and indeed benevolent policy. The programme had two goals. First, and most obviously, it was to open land for Pakeha settlement. Second, and less obviously, it was intended to replace Maori traditional title to land with title held of the Crown under British law. Land held on title from the Crown became available for purchase and the purchaser’s title could be protected by the courts. This goal was frequently pursued whether or not settlement was in prospect.
The transfer of sizeable tracts of “useless” (to settlers if not necessarily to Maori) land from one form of title to another had an avowed purpose. This was “the extinguishment of Maori title”, so that civilisation (British) would replace barbarism (Maori). British law, in this respect, was an instrument of imperialism. Apart from instances of sharp practice from time to time, this process of alienation by purchase was carried through in a legal way, through statutes, regulations, judicial processes and administrative procedures. It was, perhaps, the main work of the nineteenth-century New Zealand state. Confiscation was similarly legal, apart from scale, the difference is merely that between slow and quick. There is an additional difference of some current political significance. Confiscation is a simple matter; it happened (or was meant to happen) quickly; its injustice is easy to see. The cumulative injustice of land purchases is a complex matter; they went on decade after decade; the Crown was in the business of buying, not of taking. “After all, they sold the land, didn’t they?” But the end-result was an injustice, not the less so for needing rather more investigation and thought than it takes to decide that confiscation was unjust.
If the Government is to bring about any significant mitigation of the adverse consequences of colonisation, and at least reduce the intensity of Maori protest it will need to follow through the consequences of its stated judgment on confiscation. It will need to agree, at least in principle, that a broad spectrum of past policies, all designed to bring about land alienation on a major scale, merit a close re-examination which would in many instances lead to the finding that those Crown actions also provide proper occasions for redress.
To accept that would, of course, open up the prospect of “claims without end”. But that is already the case. Pakeha have lived in the presence of a multitude of claims for the whole of their history in this country. They will still be there when the Government decides, if it is unwise enough to do so, that all the money in the envelope has been spent. The claims will simply find other forms of expression, ones which Pakeha will almost certainly find less convenient.
Bill Oliver is a historian currently working on the presentation of claims to the Waitangi Tribunal, and a former General Editor of the Dictionary of New Zealand Biography.