Treaty of Waitangi
It's a fair bet that today we'll hear speeches about the need for more money for the Waitangi Tribunal so that it can hasten its reports on Maori grievances. It certainly does need help. But let us gladden Michael Cullen's heart; the extra money doesn't need to come from government coffers. The Treaty industry is awash with cash. The trouble is that it isn't allocated in a manner likely to result in prompt settlements. Quite the reverse. If the Government is serious about speeding progress it will realign resources in a manner that will help, not hinder, settlements.
The current Waitangi Tribunal came from legislation in 1985 that empowered it to investigate breaches of the Treaty back to 1840. For a time claims trickled in to the Tribunal and were heard. However, an unrelated event in 1988-9 seriously undermined the Tribunal's role. The Government decided to sell some Crown forests. Maori won a ruling from the courts that sales couldn't proceed until ownership of the land under the trees had been determined by the Waitangi Tribunal. An ingenious solution was devised whereby the trees could be sold, but the revenue would go to a trust fund, interest from which would assist in determining who owned the land. The Crown Forest Rental Trust opened its doors in 1990. Very sensible, Labour ministers thought, expecting that the grievance process would hasten to an honourable conclusion.
How disillusioned we became! A loose Trust deed was signed with appointed trustees. It gave them too much control over what turned out to be a huge sum of money. Initially the CFRT was untaxed. Staff were appointed at big salaries, and trustees paid themselves generously. All sorts of activities received assistance from the Trust. A growing number of bees - some busy, others drones - swarmed around this new, lucrative honey pot. The number of claims to the Waitangi Tribunal stepped up. Historians queued for contracts to write claimant histories at CFRT expense. Before long, no legal firm was worth its salt if it didn't have a Treaty section to handle claims. Progress slowed, and histories of uneven quality came before the Tribunal. Hearings grew more legalistic. More and more lawyers sat all day on Legal Aid asking perfunctory questions. More cross-claimants anxious to get their slice of the CFRT's money emerged. They tried to use the Tribunal to persuade the CFRT to grant them money. In effect, some were trying to take their anticipated settlement monies up front before the ownership of the land below the trees had even been decided.
By the middle 1990s the Tribunal moved at a snail's progress. When I joined it in 1994 the anticipated date for the end of historical claims was 2005. Within a few months it was 2007, then 2009, then 2011. At one stage it reached 2014! The CFRT with its $21 million per annum income, plus seemingly limitless Legal Aid, controlled the process, while the Tribunal shuffled along behind, doing its best with its (now) $5.6 million. The system became structurally dysfunctional.
Nothing short of legislation will stop the CFRT acting as a law unto itself. About 1994 National ministers requested itemised details of CFRT expenditure and were told to push off. Occasionally the CFRT has deigned to talk to the Tribunal, but at no point has the Trust's income, which exists to speed settlements, been shared with the Tribunal as it ought to be. Yet it has the statutory responsibility to decide on claims. The CFRT has received legal advice that its new approach to claims complies with the deed. No doubt it does. But the deed itself is inadequate. The Crown needs to re-examine it, and to re-allocate some of the forest income directly to the Tribunal so that it can do its job. We don't need a lot more research. Moreover, the public has a right to know who has been feeding at the CFRT trough. Its annual reports conceal more than they reveal. After nearly twelve years, while a few people have waxed fat, not one major forest has had the ownership of land underneath it decided. Those who are doing well from the Trust's disbursements are in no hurry.
Don't underestimate the hue and cry from the few who live off the CFRT if this Government does what National was too scared to do. Despite the specific understandings of 1989, some Maori already regard the assets of the CFRT as theirs to do with as they wish. They aren't - yet. Others have the same approach to Legal Aid. Current beneficiaries will label criticism "Maori-bashing". I fear this Government - like National - lacks the willpower to make the changes needed. I'd like to be proved wrong. Today let us all remember that far more Maori stand to benefit if claims are resolved swiftly than are currently enjoying the prolonged, and privileged process.
Michael Bassett is an historian and author, and was a Labour minister 1984-90.