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Ngai Tahu settlement fraudulant?

['Public Access' No. 9 July 1997]

This issue of 'Public Access' focuses on the Treaty of Waitangi and the related issue of settlements between Maori claimants and the Crown. We feature four essays with viewpoints of leading writers and activists, in large part prompted by the recent Ngai Tahu settlement and Ministerial pronouncements on 'customary' fishing rights.

The Ngai Tahu 'settlement' has caused many people to question the propriety of Government's actions, and caused PANZ to question our previous qualified support for settlement of Maori claims.

We believe that only some aspects of the Ngai Tahu settlement package are justified. However the greater balance is not. The losers will be present and future generations of New Zealanders who will be denied a full democratic say on the use and management of public lands and other resources. Ngai Tahu's prevailing influence over these resources has the potential to undermine public rights of use, the protective status of these lands, and the lasting value of the settlement.

The question, "is this settlement reconciliation or fraud?", arises because -

Concise Oxford: fraud n. "...use of false representations to gain unjust advantage; dishonest artifice or trick...deceitfulness".

PANZ believes that in several respects the actions of Government on the Ngai Tahu settlement are consistent with the above definition.


The secret sell-out

By Dave Witherow


Dave Witherow is an angler, tramper and conservationist.

['Public Access' No. 9 July 1997]

 

Old injustices will not be remedied at the expense of new ones. "Such settlements could never last", according to the Minister, Doug Graham.

But the proposed Ngai Tahu settlement - should it be enacted in its present form - will make a mockery of these promises, and guarantee racial disharmony for generations.

The worst aspect of this "settlement" concerns the public estate - the interrelated network of conservation lands, recreational and wilderness areas, Crown Reserves and leaseholds which are the shared inheritance of all New Zealanders. Even the National Parks, which Mr Graham until recently had declared sacrosanct, will be compromised.

A swindle of these dimensions could not, of course, be conducted in the open. Direct freehold into private ownership would be much too controversial. So the deed, instead, is to be done by stealth - through a variety of smokescreen stratagems cooked up by the Minister's faceless staff, and designed to conceal from the public view the true extent of pillage.

Mr Graham, occasionally conscious that his furtive bartering is unacceptable, has from time to time pretended that a wider public input would be sought, and taken proper account of. But, beyond a few inconsequential meetings, none of this has happened. The only formal opportunity for public input will be on the still-secret enabling legislation, which will no doubt be referred to the Maori Affairs Select Committee latter this year. This will provide no check at all on what has already been determined-Government has made contactual obligations to Ngai Tahu.

The Crown - meaning Mr Graham - has usurped the public's right to defend its legitimate interests. Mr Graham and Ngai Tahu will decide together in secret. And if this defrauds the rightful owners of their inheritance, so be it.

Part of the Graham/Ngai Tahu agenda is described below. Other mechanisms exist but have not yet been leaked in any detail.

 

Nohoanga

Of the various indefensible aspects of the Graham plan none is more far-fetched than the "Nohoanga" or "campsite" entitlement. Areas of Crown land adjacent to rivers and lakes will be closed to traditional public use and allocated as private campsites, for the exclusive use of Ngai Tahu.

Each of these campsites will be relatively small, but there will be a great many of them spread the length and breadth of the South Island (and, as for 'Topuni', the concept is to be available for export further North).

The excuse for this race-specific alienation of public land is, according to Mr Graham, to provide access to waterways for Ngai Tahu to engage in "customary fishing". The fact that customary fishing no longer occurs apparently does not matter, any more than the fact that the present users of these rivers, lakes, and campsites, will lose what to them are long-established customary rights. Some customary rights, it seems, are more important than others.

People of Ngai Tahu descent no longer fish with flax nets or bone hooks. They use modern equipment and methods to catch native species as well as introduced gamefish, such as trout and salmon. They are entitled to camp on public land adjacent to these resources in exactly the same way as everyone else. But to Mr Graham and his Ngai Tahu counterparts this is not enough. They must be awarded extra rights and special access, and allowed to deny their fellow-citizens the enjoyment of camping places they may have been using for generations. They would terminate existing rights, all in the cause of Justice.

There are many things wrong with the Graham/Ngai Tahu proposal, some of them of far greater magnitude, but none of them epitomises its racist divisiveness as pointedly as the Nohoanga concept.

 

Deeds of recognition, statutory advisors, protocols, etc.

Under Mr Graham's proposals Ngai Tahu will be given a privileged role at every level of environmental administration and management, from national to local. Ngai Tahu "Statutory Advisors" will oversee areas as large as mountain ranges, and will promote their own interests directly to the Minister - by-passing the normal channels available to the unwashed public. And the Minister, in turn, will be obliged to have "particular regard" to the requirements of Ngai Tahu.

Through "Deeds of Recognition" this comprehensive meddling will be extended further, with Ngai Tahu involved, as of right, in the day-to-day management of undisclosed areas of the public domain. The Department of Conservation, already supine, will be kneecapped through the imposition of "Protocols" designed to ensure maximum Ngai Tahu interference at every level of its activities.

The obvious intent is to provide Ngai Tahu with a level of manipulation of public land far beyond its democratic entitlement. This will include the placement of Ngai Tahu on the governing bodies of the national Conservation Authority and its regional Boards, as well as the Guardians of lakes Wanaka and Manapouri, and the local Fish and Game Councils (to all of which they already have democratic access). These provisions require the abrogation of the basic principles of democratic representation, allocating a pervasive and non-accountable domain of self-interest to a small, racially-selected minority. It will be a covert deal which, far from righting old injustices, will launch a generation of new ones.

 

Caples and Greenstone Valleys

This deal has metamorphosed considerably since its first appearance. The original plot was a massive freehold, allowing Ngai Tahu to build a monorail the length of the Greenstone valley. The fact that this would have destroyed the area's remote appeal was of no account to Sir Tipene O'Regan and his associates. But there was too much public outcry, and subsequent drafts have seen the monorail's demise.

Ngai Tahu, nonetheless, remain adamant that commercial exploitation is their prerogative - especially in the lower Caples, which they may be given freehold. Such development - as Bryce Johnson of the NZ Fish & Game Council has pointed out - would ruin the wilderness character of the region, and could easily be prohibited.

These confluent, scenic valleys, already protected by national protection order, are very popular with trampers, fishermen, and hunters. They are logical extensions of the adjacent National Parks, and, being unencumbered Crown land, could be added to them immediately. Were Ngai Tahu concerned with anything other than commercial gain they would support this course of action.

 

Topuni

This loosely-defined concept, the most insidious and dangerous of all the Graham proposals, is to be imposed on National Park and other public lands of the South Island (with the threat of later extension further North).

In areas subject to Topuni - which may include whole National Parks - Ngai Tahu will be given authority to suppress any behaviour or activity they consider unacceptable. Since these behaviours and activities are undefined, and since the Topuni concept, like the Treaty itself, may be expected to "evolve", we can anticipate a permanent and escalating interference in people's rights to enjoy their National Parks. Enforcement of public 'behaviours' through bylaws and regulations is contemplated, all overseen by Ngai Tahu behavioural police.

This thoroughly offensive proposition, needless to say, has never been debated. It is profoundly undemocratic, in that one small group should presume to dictate codes of behaviour on everyone else. And it is particularly obnoxious in the context of National Parks, which were specifically created for the free access and enjoyment, both physical and spiritual, of every citizen.

The Topuni malaise will also be extended over Scenic Reserves, Recreation Reserves, and the Conservation Estate in general.

 

The proposed Ngai Tahu deal, unlike previous Treaty settlements, involves the extensive use of conservation lands (this being in violation of Government's policy that the conservation estate will not be "readily available" for Treaty settlements). Were it not for this, despite the flimsiness of much of the accompanying argument, many of Mr Graham's extravagances would probably be tolerated.

This deal, however, will not be tolerated. It may be ratified, and signed with the usual ceremony, but its legacy will fester and ultimately erupt. No old injustice will ever be healed by a new injustice of this magnitude.

Mr Graham's judgment, often sound, has been strangely lacking in his negotiations with Ngai Tahu. His decision, contrary to all his assurances, to barter the public estate, is difficult to fathom.

Perhaps, as Brian Turner and Philip Temple have suggested, he fails to understand what their wild lands mean to New Zealanders. In an 'Otago Daily Times' article, printed on the 19th June, Mr Graham said:

"To most of us a river is something to use but we don't revere it as Maori do. To them it represents their ancestors and has its own wairua or spirit. They are naturally offended when it is polluted... the potential for disagreement is very great." "To Maori, landmarks such as mountains are important because they mark tribal boundaries. They are imbued with a spiritual element which is not easy for us to understand".

These are sincere, revealing lines. But the Minister speaks only for himself, and not, as he imagines, for all Pakeha, or all Maori.

To Mr Graham a river may be something to use and pollute, and the landscape devoid of spiritual content - but not to me, and thousands like me.

People respond to nature in different ways, and to different degrees - some hardly at all (like Mr Graham perhaps), and others very deeply. But they do so irrespective of race, as the world's religions and literatures have always reflected.

In New Zealand the regard for wilderness is part of the national psyche. It is enshrined in our National Parks, and expressed in the everyday pride we take in our green and unspoiled hinterland. It has grown stronger each generation, so that the destruction of a forest or pollution of a river can no longer lightly be attempted. It is an attribute of all the people, Maori and Pakeha.

The backcountry does not belong to the Crown. It belongs to us. It is not Doug Graham's to dispose of, and this fraudulent "settlement" will never be accepted.

 


What outdoor people want, Minister, is less exclusivity

By Brian Turner

Brian Turner is a writer, poet, and outdoorsman with a long involvement in conservation and recreational issues. He is a spokesman for Public Access New Zealand. Currently he is Writer in Residence at the University of Canterbury.

© Brian Turner1997.

['Public Access' No. 9 July 1997]

 

The Minister of Treaty Settlements, Doug Graham, has been working very hard to accommodate Ngai Tahu's wishes in respect to specific provisions relating to what he and they term "customary rights".

Reference has also been made to the Maori "communal values" involved, implying that there is a significant difference between what pakeha and Maori people mean and practise when it comes defining and acting on rights and values in this area.

I have had a lifelong active interest in sport, recreation and conservation. I don't envy Mr Graham his difficult job, but I know I am not alone in thinking that he doesn't seem to fully understand the views and depth of feeling of the pakeha people most actively concerned with outdoor recreation, and in hunting, fishing, and conservation generally.

Especially the hunting and fishing fraternity who, in the overwhelming number of instances, are deeply concerned with conservation. Many anglers and hunters and conservationists on the pakeha side have long felt that Mr Graham has been browbeaten by negotiating claimants (I accept that protagonists of both sides in a debate often claim that), that he has not properly consulted with them, and that he doesn't adequately understand their views and feelings on rights and values as they pertain to recreation and conservation.

In my opinion Mr Graham, and those who are prepared to accommodate his proposals, are, on the pakeha side, very often people who have little interest in conservation, hunting or fishing, and therefore aren't going to lose anything of real importance to them. Such people just want a settlement; the details are of no great significance.

But in my opinion there's not been sufficient contact, in the parlance of today, with the genuine "clients" in this area. Running through the whole issue is an implied assertion that Maoris are supreme and superior conservationists, have a deeper understanding of the natural world and values inherent in it, and that pakehas are crasser by comparison.

Only recently I heard a Maori spokeswoman on radio stating that conservationists with concerns for the Coromandel were busily trying to oppose Maori claims over the area while at the same time ignoring the effects of mining. She also said that Maoris were probably the greatest conservationists in the world.

Neither of her claims was true, but I mention them because similar claims are made throughout the country as a whole. There is an assumption in the whole debate concerning outdoor recreation and conservation that pakehas are generally awfully exploitative and Maoris far less so.

It would be fairer to say that both races have a record of being seriously, even ruthlessly exploitative of natural resources at times, and that today a growing number of both Maoris and pakehas are coming round to acknowledging the error of some of their previous ways. I exclude from this observation those who still think it okay to kill kereru in the forests of the north and elsewhere, and those who overfish the sea. Let's look at "customary rights" as they pertain to fishing and hunting. For a start, species released here since 1840 weren't, obviously, part of what Maoris customarily fished for. And few, if any New Zealanders, have ever fished for trout and salmon, say, principally for food.

Eels and whitebait, yes. And ditto with fish and crustacea and molluscs found in the sea. But all fisheries are now subject to controls, most of which most people regard as necessary and are happy to comply with.

Sometimes, as is the case with sports fish, licences to fish are required, and the proceeds are used to manage and protect the fisheries. Most people agree with this, too. Both Maoris and pakehas have input into the formulation of regulations and controls, and have done for some time.

When it comes to sports fish and game, all licence holders are entitled to a vote for the election of regional councillors who are unpaid administrators charged with managing the fish and game resource (and guarding and lobbying to protect the natural environment crucial to the survival of both native and introduced species) on behalf of all licence holders. This is work that greatly benefits the wider community.

Access to public lands -- and to the marginal strips often referred to as the Queen's Chain -- is open to all. It is not exclusive to one group in society. It has long been considered a fair and desirable customary right.

It also contributes to the sense of communal values which anglers and hunters, regardless of race, colour or creed, share and deem an enlightened and laudable part of our society.

Reasonable people accept that Maoris have a part to play in the management of fisheries, for instance; accept that they have knowledge worth accessing and sharing. Maori representation on conservation boards, for example, in numbers greater than their proportion in the population is a case in point.

So joint management and control, open access to all, is what we have under the current system. There is no need to change it.

Much is made these days of preferred interpretations of Article 2 of the Treaty of Waitangi, and of what is meant -- or was intended to be meant -- by it. There is also much talk of what is meant by reference to the "principles of the treaty".

I have heard it said that the meaning of the "principles" is what Maori advocates say it means in any given circumstance and that's it. Certainly this is an area of profound disquiet.

There is also, in my view, a marked disinclination to refer to Articles 1 and 3 of the treaty, to consider them and their importance in determining the meaning and application of the treaty as a whole. It will be remembered that in Article 1 Maoris ceded sovereignty "absolutely and without reservation".

As human beings we are often reminded that we ought to revise our thinking in accordance with what, given the lessons to be drawn from history, seems sensible and desirable. Attempts to graft or enforce the thinking of earlier times on to subsequent, increasingly distant generations grate and often fail, for good reason.

In New Zealand it's my opinion that when it comes to recreational hunting and fishing, and to conservation generally, most knowledgeable people today don't want a system that entrenches exclusivity; don't want a system that gives priority to the views of one group ahead of another.

They want a system that draws on the breadth of knowledge available within their society, that is democratic and is seen to be fair and just and equitable, and is an advance on what has gone before. Decisions on allocation of and access to natural resources that are based on a sense of guilt, are driven by aggrievement or moral outrage, will never be readily accepted.

In my experience most people accept that it is right to place limits on the number of fish they are allowed to take, but they are not prepared to accept that because others, somewhere in their past, can cite they are descendant from Maoris, they have "rights" specific to them.

I know that we are supposed to be bound by what the courts decide, but, in the end, if people think the law as interpreted by the courts is an ass, they will flout it.

That's when Parliament must step in. When it comes to access to rivers, streams, lakes and the sea coast I am convinced that very few people who actively use these areas want any more exclusivity than that which exists already.

What they would prefer is less. Settlement proposals as negotiated by Mr Graham may result in the opposite.

 


Natural values - a personal view

By Philip Temple

Philip Temple is a Dunedin-based writer and photographer.

© Philip Temple 1997

['Public Access' No. 9 July 1997]

 

In a press article recently ('Otago Daily Times', 19 June 1997), the Minister in Charge of Treaty Negotiations stated that it was difficult 'to give recognition to values and traditions which are unique to Maori in today's world. Let me give you an example. To most of us a river is something to use. We fish in it, swim in it, launch our boats into it and may enjoy just looking at it flow by. But we don't revere it as Maori do'.

This demonstrated to me not only that Doug Graham is out of touch personally with the values that inhere in the natural world but also that, on the basis of this, he holds an uncritical and misty-eyed view that most Maori are in touch and most pakeha are not. It is nothing less than appalling that a senior minister of the Crown, responsible in the Treaty area to represent all of us, should hold such flawed and partial views. At the very least, Mr Graham is being given bad advice; at worst, he is being manipulated into a position where he now overlooks the fact that he is negotiating for the Crown - that is, all New Zealanders - and has become chief apologist for the plaintiffs under the Treaty.

Mr Graham's press statement was a personal affront to me and to the tens of thousands of other non-Maori citizens of this country for whom their identity as New Zealanders is rooted in a reverence and love for nature and landscape which, while different, is just as valid and as powerful as the Maori's. I could quote endlessly from literature to illustrate and prove my point but will speak here only with my own voice and from my own experience ...

Nearly thirty years ago, I wrote, 'My own first encounter with mountains was a vision of spring snow sparkling on a clear night on that river's peaks, a sight still vivid in memory, like any scene or event that moulds one's life. Bewitched and humbled at the same time, I became a child of the mountains and nothing seemed more virtuous or valuable than to explore and understand the face of a high landscape ... the peaks brought the crystallisation of growing strength and confidence, the slow welding of a bond between myself and the mountains, and an understanding of both'. Judging by the reactions I had to that piece of writing, I spoke for many, many other people who lived in, visited, tramped or climbed our mountain country.

The greater part of my life's work as a writer and photographer has been inspired by the Southern Alps mountain world in all its multifarious facets, from lowly lichen to icy peak... 'Even when they were smothered in storm he always saw them in his mind's eye, obdurate within the cloud, unchanged by thunder or rain or even snow, for the mountains made all these and could not be changed by them; they made the rain and the snow, the water for the rivers, the cold and the heat and the wind, and the land was composed of their dust. They were like gods, grizzled and tawny, ancient and violent, disposing and creating, everlasting. And like gods, they appeared in different guises, inscrutable, always perfect'. I have willed that, when I die, my ashes should be scattered in the place that is my spiritual home.

My feelings for, understanding and spiritual identification with the world of the Southern Alps led me to create an entire kea mythology for a place that had scant existing mythology. And while I always gave regard to Maori place, myth and experience in the mountain world in my writings - whether in novels, children's books, guide books or other non-fiction books - I rarely encountered Maori during my travels in the mountains, noticed no significant involvement by Maori in mountain conservation issues and certainly never received any Maori comment or response to any of my writings.

And here lies the rub. Just like Doug Graham, it seems no Maori is willing to acknowledge any pakeha spiritual or emotional connection with the land or, if there is any form of acknowledgement, it is always qualified as being less or inferior. It is different, certainly. It is backed by untold centuries of involvement with nature, with gods, with myths of forest and sea, with traditions of a natural and symbiotic relationship with the land that draw on cultural experiences and references, exemplified in art and literature, which are much more widely based than the purely Polynesian. The pakeha are the inheritors in New Zealand of a vast weight of myth and tradition.

Recognising the validity of pakeha experience of nature in New Zealand is, of course, politically dangerous. All Maori claims of moral and spiritual precedence and authority are based on the premise that Maori have been here longer, it is their only home and, therefore, it must be more important to them and they must have a better understanding of the natural environment. This premise ignores the fact that New Zealand is the pakeha's only home, too, and that they have been here long enough now to have their own powerful and valid relationship with the land.

Just as it is imperative and just that pakeha properly recognise Maori spirituality, place and customary behaviour in the New Zealand landscape, so must Maori recognise the pakeha's. Exclusivity is no basis on which to bring about settlements which are lasting, not just from the Maori point of view but also from the pakeha's. Recognition of each other's place in this land is the only way that a full reconciliation and understanding can be reached. Mutual respect and acceptance are something that Mr Graham as negotiator should have the wit to recognise are essential to the conclusion of any settlement process.