KATHY ERTEL & Co. barristers & solicitors
25 August 2011
Pascal Morf Executive Director INCOMINDIOS Switzerland P O Box CH-8032 Zurich Switzerland Dear Mr. Morf RE: Henry Koia, Ruawaipu NGO statement Draft Only Version dated 24 August 2011 1.
This letter concerns this draft and is written at the request of Mr. Koia to offer support and possibly provide additional supporting information.
2.
To begin with, I am a member of the New Zealand Law Society and have been practicing in the area of Māori rights since 2006. This practice includes handling claims of breach of the Treaty of Waitangi before the Waitangi Tribunal, a specialist tribunal that handles those matters exclusive. I have been handling claims assigned to the East Coast Inquiry (case number Wai 900) since 2007.
3.
I have clients in the East Coast inquiry who are of the Ruawaipu tribe. They are not of the Ngāti Porou tribe. As a collateral but related matter, there are other tribes in the East Coast inquiry who are not Ngāti Porou; some of my clients are members of the Ngāti Uepohatu tribe. They are experiencing virtually the same treatment as are the Ruawaipu tribe. I often refer to these tribes as “traditional tribes” because they were tribes long before Ngāti Porou ever turned up, as more fully described below. The traditional tribes were people of the land for at least a thousand years, while people who claim Ngāti Porou ancestry arrived in New Zealand about 700 years ago. The traditional tribes had land and governance rights in the East Coast area when the Treaty of Waitangi was brought around. In the Waitangi Tribunal jurisprudence, this is a significant time because it marks the
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beginning of serious colonisation and is a benchmark for land rights and other related Treaty breaches. 4.
I support Mr. Koia’s draft statement and its recommendations and I would like to add some additional information that may help explain the situation and also provide facts that have evolved since the draft was prepared.
Treaty settlements 5.
Following the 170 years after the Māori language version of the Te Tiriti o Waitangi was signed throughout New Zealand, its inaccurate English translation into the Treaty of Waitangi was accepted by the British government and became a platform for colonisation. Although there is now debate about what was actually intended by the Treaty, at the time, there were substantial areas where British government did not prevail, including substantial areas in the East Coast inquiry (north of Gisborne New Zealand, including the East Cape area). It was said that the Queen’s writ did not run there and Māori law and custom prevailed. Based on the way the colonial government conducted itself, it is apparent that the British government was not meant to govern Māori and it did not for a number of years. As more and more land was taken by the colonial government and transferred to settlers, the government expanded.
6.
The East Coast war in 1864 was a turning point for the traditional tribes of the East Coast. It is not the purpose of this letter to outline the details of that conflict, but it is important to realise that the group now known as Ngāti Porou fought on the side of the settler government and the traditional tribes resisted those forces. At the time, Ngāti Porou was a small hapū in the vicinity of the Waiapu River— there was no pan tribal organisation nor was this group a larger iwi with any authority over any other than their very small subtribe. Ngāti Porou and the leaders that were later to emerge had no land rights throughout the East Coast.
7.
After a few months’ conflict, the government side prevailed and a new order of things began. Ngāti Porou were placed in leadership and supervisory positions. Ngāti Porou administered the business of the settler government over Māori, exercising control and even punishment over people who had resisted the
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government in the East Coast wars. This is important because 150 years later, when the Waitangi Tribunal was considering claims about breaches of the Treaty of Waitangi (whichever language version), the settlement proposed was with Ngāti Porou and the traditional tribes of the East Coast were ignored. 8.
During the 150 years following the East Coast wars, thousands of acres of lost to the traditional tribes and much of it was through the aid of the Ngāti Porou “leadership” that assisted the Native Land Court in identifying land for survey and purchase in the institutionalised land grab the Court represented. There was little talk on the Coast of any tribe other than Ngāti Porou. In 1987 a bill passed through Parliament institutionalising Te Rūnanga o Ngāti Porou as a Māori trust board.
9.
So when the East Coast Inquiry of the Waitangi Tribunal convened and research was commissioned on the existence of the traditional tribes, it was viewed by the people who had received this knowledge handed down from generations past, that this would be the opportunity to seek redress for the grievances that the government had committed against them beginning with the Treaty and continuing down through the loss of land and rights of self-government.
10.
The inquiry was commissioned in 2004 and by mid-2007, just after all the research had been designed and was beginning, the Ngāti Porou organisation (rūnanga) announced that it intended to seek direct negotiations with the government to settle Treaty claims, bypassing the hearing process. This would require a process called mandating.
Never had settlement been pursued before hearings over the
objections of a significant number of claimants. 11.
The government-imposed mandating process is designed to appear democratic while in fact it is not. This process is not a process driven by Māori custom, but is instead a process that the government has designed and imposed.
12.
The mandating process is supported by Crown funds, often “reimbursed” after a mandate is recognised. This means that only large, wealthy groups (such as those who receive money from fisheries settlements and other government income) to be able to advance funds to communicate with their constituents for purposes of
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achieving mandates. Several years ago, when the government began its initiate to settle as many claims as possible, mandates were achieved by hand votes cast at meetings held to discuss claims. Now mandate votes are done by postal ballot of those registered on an organisation’s register. 13.
In the Ngāti Porou mandate process, only those people who were registered as Ngāti Porou were allowed to vote. Those people who knew that their tribal origin was not Ngāti Porou were not able to vote, yet their claims were going to be settled by the government settlement with Ngāti Porou. This is done in spite of the fact that they have a statutory right to a hearing on their claims.
14.
Typically, the process of a statutory hearing produced a Waitangi Tribunal report which included findings about the historical Treaty breaches which in turn supported recommendations to the government about how they were to redress and correct these breaches.
15.
Typically, settlement was negotiated after the statutory hearing. At the time the Ngāti Porou settlement was reached, this was the only inquiry that had been shut down before hearing against the wishes of claimants ever.
16.
The government has established an arbitrary deadline of 2014 to settle all Treaty claims. This of course will include others who are settled against their wishes, as has happened to the traditional tribes here.
17.
Here, over the objections of well over half the claims of the East Coast inquiry, the government accepted that Ngāti Porou had a mandate to settle the entire inquiry district. Not only were many of the claimants not able to vote, they were not asked directly about whether they wanted to settle their claims. Moreover, the government deemed their claims to be included in the mandate and proceeded to negotiate a claim.
18.
The ratification of the settlement was even more problematic than the mandate. Again, the vote was limited to Ngāti Porou and not extended to the traditional tribes whose claims were set to be settled. The settlement lacked popular support. During the voting period, ballots were not being returned so the Ngāti Porou
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Rūnanga set about telephoning people in an effort to get ballots returned. After several harassing phone calls, they managed to get 3,191 votes returned out of a possible 19,000. The government declared a victory and accepted the settlement. There were a number of instances of irregularities such as ballots being issued to dead people and duplicate ballots. In addition, votes by text message and internet were accepted. 19.
Traditional tribes claimants tried to challenge the vote but the Waitangi Tribunal declined to hear their challenge, in part based on the conclusion that the challengers were “entitled” to share in the settlement proceeds. The New Zealand Supreme Court later rejected this rationale for refusing to hear a claim, particularly when the application involved a potential loss of an asset or right forever. It was too late for these claimants since the government refuses to review the Ngāti Porou settlement invoking Parliamentary Privilege to avoid court review of this Ngāti Porou settlement process.
20.
As of this writing, the Agreement has been reduced to a piece of legislation which is now a bill pending in Parliament for enactment within a few weeks.
21.
The legislation if passed will deem all claims in the East Coast inquiry settled and grant all the redress to the Ngāti Porou Rūnanga—the descendants of the same people who helped the Crown commit breaches during and after the East Coast wars. It will also create new identities of the East Coast traditional tribes by making them into subtribes of Ngāti Porou—the ultimate bitter irony.
22.
Some have said that this legislation will create fresh grievances. Others say it merely perpetuates the old grievances. The ultimate outcome is the redress— government-owned land that is set to be returned—will not be returned to the traditional tribes who originally held land rights, but instead will be given to the Ngāti Porou—the wrong people.
23.
As a law practitioner in the United States for 29 years, I have to add a personal note here.
I have never seen such an arbitrary and undemocratic method of
defeating peoples’ legitimate statutory and natural justice rights as this one is— short of actual war.
Mr. Pascal Morf
24.
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Although couched in terms of a democratic process, this mandate and settlement process are decidedly undemocratic. The mandate and ratification process have all the hallmarks of an American-style election—voters bombarded by glossy mailers, television and radio support, and government endorsement. These features are supported by a Soviet-style election process, where only one choice is presented on the ballot and selections are assumed. Two questions—whether to settle and who to mandate for representation—are conflated into one.
25.
At meetings held to describe the process, only one side of the story is told. There are no real controls on what is said at the meetings to entice people in to agree to a mandate. At best, those who oppose the proposition can ask questions, but no opposition presentation is permitted.
There is no equality of arms.
The
government funds only one side of the question so those who oppose are unable to mount a similar campaign. 26.
The processes also capitalise on a Māori cultural imperative which is to express opposition by declining to participate. Out of a purported rūnanga representation of 72,000, only a few hundred have attended meetings for this group—most of them are out of the tribal area and most are unaware of the nuances of the controversy.
27.
Government hegemony supporting the process is enhanced by having a process that is either too early or too late for review. If review is sought at mandate stage, the objectors are urged to participate and vote against the ratification. If review of ratification is sought, the objectors are urged to address the Parliamentary Select Committee.
28.
In this case, the Parliamentary Select Committee was not a fair proceeding. Of the members of the committee who actually heard presentations, one of the five had a conflict of interest that had disqualified him from reviewing the mandate and another failed to attend the hearing during which the traditional tribes claimants presented. The claimants’ were not permitted to present in a logical interest-based fashion but were scheduled in a way that caused their presentations to be isolated and appear disorganised.
Some who were very direct in their government
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criticism were cut off and others suffered arbitrarily shortened time. Ngāti Porou presenters were not treated like that but were allowed to present genealogy issues and make historical statements that were shouted down when raised by the traditional tribes claimants. 29.
In this case, “Airing of Grievance” hearings were set up as part of the Settlement. The traditional tribes hoped for an opportunity to inform the government of the basis of their claims to separate identity and establish their land rights so as to prevent permanent loss of their lands by return to Ngāti Porou who never had land rights to begin with. Although the Deed of Settlement called for 10 days of hearings over a 3 week period, the government announced 1 week before the hearings were to start that the claimants were being given just over 2 days to present and each was given only 20 minutes time to state their claim. This equals about 7 seconds for each year of breach.
As a result, the traditional tribes
claimants decided to boycott the hearings. At this time, they have applied to the Waitangi Tribunal for aid in reviewing the adequacy of the hearings provided and their application is pending. 30.
Please accept my apologies for such a length presentation but it seemed that there is a certainly amount of background that might be helpful to an evaluation of Mr. Koia’s presentation and the situation that is facing the Ruawaipu—and other traditional tribes—claimants in the East Coast of New Zealand.
31.
Because the government has succeeded in its institutionalised denial of hearings and justice to these people, it is now expected that other tribes in other inquiry areas face the same fate. Other tribes now face having their mandate deemed to have been granted, even over their objections. Other tribes face a mandate process that is government funded and one-sided, where the claimants are not asked but the claimant community is asked, after a campaign of propaganda has exposed them to only one point of view. Other tribes face a statutory hearing with some effort at equality of arms being replaced by a 20-minute hearing on 1 weeks’ notice after the government has decided what to give in redress and to whom.
Mr. Pascal Morf
32.
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This process is tantamount to the government just announcing on its own motion that it is banning all Treaty claims, granting some money to large MÄ ori tribes of its selection and concluding by virtue of statutory fiat that all claims are settled. This is a breach of rights to justice and should be stopped.
Please do not hesitate to contact me with any questions you may have. Very truly yours, Kathy Ertel & Co.
Linda Thornton Associate cc: Mr. Henry Koia, Chairman of Ruawaipu Iwi Te Tiriti Claims Settlement Authority