Sunday, February 6, 2011

Year 171

As I noted around this time last year, Waitangi Day is not only a time to celebrate our nationhood, but ought also to be a time when we reflect on the nature of the relationship set out in the articles of the Treaty of Waitangi and how healthy that relationship is at present.

The 171st year of the life of the Treaty has provided some interesting indicators of the state of the Treaty partnership.

The increasing influence of the National Iwi Chairs Forum over the last year has certainly been a notable development in terms of the way in which the Crown engages with Māori.  Pita Sharples, as both Minister of Māori Affairs and Māori Party co-leader, sees as extremely positive the input that the Iwi Chairs Forum has had, and continues to have, into policy relating to the foreshore and seabed, water, aquaculture, emissions trading, forestry and resource management.  Sharples suggests that this group represents the Māori Treaty partner, and that the Māori Party itself represents the Māori Treaty partner in its relationship with the National Party.  Prominent Māori lawyer Annette Sykes has a different view.  In the 2010 Bruce Jesson Lecture, Sykes provided a powerful critique of the National Iwi Chairs Forum and its relationship with the Crown.  Sykes argues that the increasing influence of the National Iwi Chairs Forum is not enhancing the Treaty relationship.  On the contrary, she suggests that it is in fact obstructive of the relationship envisaged by the Treaty, which was one between hapū rangatira and the Crown.  In effect, the Crown has constructed “a Treaty partner in it’s own image” which it feels comfortable dealing with. Sykes points to the Forum’s engagement in the very areas highlighted by Pita Sharples as evidence for her argument.

The foreshore and seabed issue is one area in which Pita Sharples believes the health of the Treaty relationship is being demonstrated.  Although he acknowledges that the proposed replacement for the Foreshore and Seabed Act, the Marine and Coastal Area (Takutai Moana) Bill that is currently before the Māori Affairs Select Committee, is not everything Māori might have hoped for, he clearly sees the Bill as a step towards better recognition of tino rangatiratanga.  The Bill is undoubtedly an improvement on the Foreshore and Seabed Act.  But it is still fundamentally flawed.  Many people might wonder how it can be a step towards tino rangatiratanga for the Māori Party to support a Bill that will discriminate against Māori.

Another area that we might look to in order to ascertain the health of the Treaty relationship is the work of the Waitangi Tribunal and the Office of Treaty Settlements.  There has certainly been considerable activity in this area over the past year.  The Tribunal has released the Stage II report on the Tauranga Moana claims dealing with post-raupatu issues, Part Two of the report on the Urewera claims, the East Coast Settlement Report, the Wairarapa ki Tararua Claims Report, the Management of the Petroleum Resource Report, and a pre-publication version of the chapter dealing with te reo issues from the Wai 262: Indigenous Flora and Fauna and Māori Intellectual Property inquiry.  We hope to see the final report for the long running Wai 262 inquiry published this year. The Office of Treaty Settlements has also been busy with major settlement legislation being enacted, a number of significant deeds of settlement reached, and important agreements in principle signed with groups in the Auckland area and the Te Hiku Forum representing five iwi from the northernmost part of the country.  The Crown is continuing to work towards its target of settling all historic treaty claims by 2014.  Swift progress is of as great a concern to Māori as anyone else, and yet we must not lost sight of the fact that the durability of these settlements will depend on delivering a measure of justice.  With that in mind, it is worrying to note the recent concerns raised by some iwi about the pressure to settle that is being exerted by the Crown.

As we head into the 172nd year of the Treaty of Waitangi, we have both an election and a constitutional review on the horizon.  Both could well deliver significant outcomes for the way in which the Treaty relationship is implemented.