Sharples: 8th Annual Public Law Forum

21 March 2006

8th Annual Public Law Forum; Wellington;

Tuesday 21 March2006

Dr Pita R Sharples

In New Zealand in 1975, therewas a Recreation and Sports 'Come Alive campaign, which waslauded as one of the most far-reaching publicity venturesever undertaken by the Government. A newspaper report fromthat time described it as:

"It will touch every man, womanand child in the country, affecting the way we think and theway we live".

Indeed what occurred in 1975 signalled thebirth of a nation, preparing to Come Alive in more ways thanone.

For 1975 was the year that a Maori Land March downthe length of the North Island drew attention to Maorigrievances over the loss of their land. This symbolic siteof resistance revealed the heart-wrenching strength andcommon purpose of Maori feeling about land.

It was alsothe year that my kapa haka Te Roopu Manutaki won thenational kapa haka competitions (surely a world breakingevent!).

And 1975 also, saw the birth of the WaitangiTribunal, the re-emergence of Te Tiriti o Waitangi as acultural marker; and a renaissance and growth of a newidentity as a nation.

Fast forward to 2004, following therelease of Tribunal reports on contemporary claims, such asa Maori role in the third-generation radio spectrum,petroleum exploration, and the foreshore and seabed - andthe Prime Minister was moved to suggest a review might benecessary, of a structure set up some thirty yearsprior.

Coming alive is about people having a voice in theexercise of power.

Staying alive is ensuring that therepresentatives they elect are accountable and responsibleto the passionate people who put them there.

I want tolook at the challenge of Treaty settlements as a means ofboth coming alive, staying alive, and thriving as anation.

The question of the day has been put at 'is therestill a need for the Waitangi Tribunal ?

Let s examine theevidence. The claims submitted to the Tribunal areexpensive. The claims and settlement processes are arduousand grievances tend to detract from positive developmentopportunities.

The experience of giving evidence is verytraumatic. Many of our pakeke have passed away withinmonths of appearing at hearing. Aue taukuri e.

The Powerof Potential for Nationhood

None of this, however,diminishes the role of the Waitangi Tribunal as a massiveopportunity for Aotearoa to grow.

The Waitangi Tribunalhas the authority by Parliamentary statute to determinethe meaning of the Treaty for today, and find practical solutions to acknowledged grievances.

It makesrecommendations to Government on what action should betaken. The Government then has the final decision on whatwill happen to the recommendations.

One should neverunder-estimate the power of the Tribunal to create and shapenew interpretations of the Treaty relationship.

TheWaitangi Tribunal has been the primary vehicle for the truthand reconciliation aspects of treaty claims.

It is themeans by which the people can tell their stories, where thepast wrongs of the Crown are heard and recorded, and wherean opening is created to explore the previously untappedpotential of facing the past to build a futuretogether.

The popular psycho-babble at the turn of thecentury, with politicians urging New Zealanders to just letit go, to move on, to forget about dredging up the past, tolive for the moment, sacrifices a great fundamental truthof democracies.

The right to knowing.

The right toknowing the truth, to knowing the stories.

At the turn oflast century, one of our greatest writers, KatherineMansfied, challenged New Zealanders to

"Risk! Riskanything! Do the hardest thing on earth for you. Act foryourself. Face the truth..."

A century later, another ofour greatest writers, Patricia Grace, shares the samesentiment:

"There s always an edge here that one mustwalk, that s sharp and precarious, requiringvigilance."

Although she was talking about the windycity of Wellington, I can t help but see the connection tothe turbulent gales and storms of a Tribunalhearing.

Anyone who has sat through a Tribunal hearing cannot fail but be moved by the turmoil of history. We muststrive for courage as a nation to walk the edge, that sharpand precarious edge, in order to increase our knowing ofeach other.

It is a knowing which New Zealanders arehungry for. I took great heart from a UMR research surveywhich stated that 57% of 750 New Zealanders surveyed thoughtthat better understanding of the Treaty would help NewZealanders to better understand our country, our history,and to engage in constructive debate.

If we are to moveforward we must first be open to healing and reconciliation,which in itself requires the informed involvement of all NewZealanders. Such involvement could come through producingreadable versions of Tribunal reports, and making thestories available to whanau, hapu and iwi.

Some 1236claims have been registered with the Waitangi Tribunal since1975. Although this statistic has been rendered invisibledue to the Crown push for large and natural groupings, itdoes indicate some of the scope of history available for thepublic record.

We cannot pretend that the pain ofdis-possession is ever likely to be addressed by a quantumsum. In the Taranaki Report, the Tribunal states

'thesettlement of historical claims is not to pay off for thepast, even were that possible, but to take those stepsnecessary to remove outstanding prejudice and preventsimilar prejudice from arising; for the only practicalsettlement between peoples is one that achieves areconciliation in fact.'

Quantum Sum

I want toreturn, now to this notion of a quantum sum.

Ten yearsago the round of hui held at Hirangi marae, issued a directresponse to the Crown proposals for the settlement of Treatyof Waitangi claims - commonly known as the FiscalEnvelope.

The Hirangi hui explored in detail the Crownproposals to settle treaty claims with one full and finalquantifiable sum.

And this is where it gets murky.

Forall the power and good of the restorative process associatedwith telling our stories this is quickly destroyed once theCrown decides how much and what will be compensatedfor.

For no matter how assertive the Tribunal reports are,if the total compensation equates to a one-off payment of 1to 3 percent of losses; and the Government argues this isall we can afford; resolution is always going to bereluctant.

The Hirangi hui attracted unanimous support -and utter rejection of a funding cap being offered to settleall claims once and for all - at a piffling amount which wasabout 3% of all appropriations for one year.

The 1000Maori and more who gathered throughout these hui knew thefuture we now face full on. Where:

- we compromise theoutlook for our future generations by accepting a fractionof the true amount of our claims; is that justice?

- where tribes are forced either to sacrifice their uniquenessin the push to large natural groupings, or risk losing out;is that justice?

- where we run the risk of creatingserious splits between whanau, hapu and iwi as part of anagenda of divide and rule; is that just?

- where conflictis a consequence of competing cross-claims; insufficientresourcing for claimants to both manage inter-tribalrelationships and record history of mutual interest; is thatjust?

- where issues of mandate and ratification arecompounded by low participation rate to threaten ownership.Is that just, is that justice, is that democratic?

Theessential problem has always been the mismatch betweenrangatiratanga (as guaranteed in article two) andkawanatanga (as provided for in Article one). The Maorisignatory to Te Tiriti accepted kawanatanga in return forthe guarantees of articles two and three.

The MaoriParty is firmly of the view that kawanatanga was acceptedwithout any diminution of the rights and privilegesassociated with being tangata whenua. Yet, the process asadministered by the Office of Treaty Settlements, fails tolive up to this view.

Rawiri Taonui, Head of the Schoolof Maori and indigenous studies at the University ofCanterbury, had an interesting angle on this, when he talkedabout the various players in the Treaty arena:

"Our Treatyprocess is a twist on criminal justice. There is aperpetrator, the Crown; and a victim, Maori. The perpetratorstole, obtained illegitimately or defrauded the property ofthe victim.

"There is an investigator, the tribunal. Ajury, the perpetrator in the form of OTS, decides guilt byapproving which of the facts the investigator produces arerelevant. This all seems pretty handy for theperpetrator."

One of the binding recommendations from theHirangi Hui was that any change to tino rangatiratanga orkawanatanga as provided for by the treaty requires the priorconsent of all iwi. We must ensure that the perpetrator,victim, investigator and jury demonstrate the balance thatwill enable a fair, transparent process withoutprejudice.

This may take time, and in the race to iron outthe 'treaty problem , we must not create fresh injusticesin the process.

If there is a need to resolveoutstanding issues relating to internal representation or tocross-claims from other tribes, that time must be taken.

If there are clearly disagreements between the Crown andclaimants on the appropriate level of redress, time and caremust be taken to walk the edge, that sharp and precariousedge, in order to achieve a stronger resolution.

It willtake willingness and the preparedness to take the risk, toface the truth - from all parties.

The Maori Party isintent on developing a new approach which is durable, andwhich focuses on unleashing the potential of the people. Webelieve it must be an approach which recognises the bestthat is available through the Tribunal - and also learn fromthe issues that have arisen through the process - flawed asit is.

And at all times, we should pay heed to the wordsof the Tribunal:

"the war itself is not the maingrievance. The pain of war can soften over time. Nor is landthe sole concern. The real issue is the relationship betweenMaori and the Government. It is today, as it has been for155 years, the central problem".

I urge our best thinkershere to turn to the real challenge - of how to make thiscentral problem the source of durable, effective solutionsfor allparties.

ENDS
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