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May 1995. 'Public Access', No. 4
Since publication late last year of PANZ's monograph on the Treaty,
there has been lack of reaction, good or bad, from Government.
There has been a marked reluctance to address the issues raised
by the paper, or to substantiate the basis for government actions
in fostering a 'partnership' with iwi Maori.
The monograph concluded that the concept of a 'partnership' between
the Crown and Maori was a myth, having no basis in the Treaty
of Waitangi or in law. Other conclusions were that there is an
irreconcilable conflict between 'partnership' and 'equal citizenship'
views of the Treaty whereby all New Zealanders have the same rights
and duties of citizenship.
There is also a major gulf between the legislative 'preservation'
purposes of national parks and other protected areas and 'conservation-for-utilisation'
preferences of many iwi. Tribal authority over public access to
and use of natural areas contrasts markedly with existing rights
of access, conveyed equally on everyone.
Leading academics and constitutional lawyers have variously praised
the paper or see no major problems with it. There has been some
comment about "rhetoric" or "bias" from some
Maori but no substantive criticism.
Before Christmas PANZ asked the Director-General of Conservation
what the legal basis was for DOC pursing 'partnership' policies
and in preparing a 'Partnership Plan'. Considerable staff time
is going into preparation of such a plan, it appears to provide
an official basis for divesting public ownership and control of
public lands and other resources to iwi. No answers have been
forthcoming from DOC five months later.
Similar requests to the Minister of Conservation for him to itemise
the legal basis for his repeated statements that a 'partnership'
exists have been met with -- "I do not see it as a matter
of public policy over which I should be called to account"
(D. Marshall, May 13, 1994).
PANZ intends, one way or another, to hold Government and its officials
to account for any unjustifiable alienation of public lands.
May 1995. 'Public Access', No. 4
Increasingly fears from non-government
conservation and recreation groups (NGOs), that Government sees
public lands as cheap fixes for land claims by Maori, are being
confirmed. In 1991 Mr. Marshall decided to give away East Cape's
Mt. Hikurangi under a spirit of 'partnership', in the absence
of a claim. DOC has reluctantly backed off giving Stephens Island
in Cook Strait away in the face of Crown Law Office advice that
there is no valid claim over the island. However the Crown Titi
and Codfish Islands near Stewart Island are currently been considered
as part settlement with Ngai Tahu despite Waitangi Tribunal findings
against their claim over the islands. The Greenstone and Caples
valleys are in the same category -- invalidated claims.
Other than zealous righteousness, what could be driving such moves?
Answers come from recently released Cabinet papers and Ministerial
statements on settling Ngai Tahu land claims. In September 1991
Cabinet agreed to offer freehold ownership over the Crown Titi
Islands and provide special access rights to the Codfish Island
Nature Reserve, while noting there would be "little cost
to the Crown" (CAB (91) M 38/27).
In June and August 1992 Cabinet, in agreeing to purchase the Greenstone,
Elfin Bay and Routeburn pastoral leases (the land being already
owned by the Crown) decided that these areas "be designated
as the first priority assets to comprise any settlement"
and that "an equivalent value of properties in the 'land
bank' are released for immediate sale" (CAB (92) M22/21,
CAB (92) M30/22).
May 1995. 'Public Access', No. 4
In March last year Minister
of Justice Doug Graham stated that "Landcorp farms would
be among the most suitable for settlement of the Ngai Tahu land
claim" (Otago Daily Times March 24, 1994). This year they
have dropped from sight. The schedule of the Ngai Tahu 'landbank',
with the exception of the Greenstone Valley etc., consists of
lots of small surplus government properties mainly in urban centres.
There are no state-owned enterprise lands listed. A direct consequence
for public lands, and the Greenstone Valley, is that the latter
have become 'first priority' assets for settlement.
It appears that SOE assets have been safely closeted away. As
Mr. Graham states: "if the Crown settles a claim by the return
of a Landcorp farm, it buys the farm from Landcorp..." (The
NZ Farmer, May 4, 1994). By tricky bookkeeping, Government has
created its own internal disincentive to use SOE lands in settlement
by requiring itself to buy what it already owns! Whereas public
lands are free!
May 1995. 'Public Access', No. 4
Late last year Parliamentary
Commissioner for the Environment Helen Hughes initiated an "investigation
into Treaty negotiations and the involvement of affected parties".
This was as a result of increasing complaints about the process
employed by Government in its dealings with public lands. The
initial terms of reference looked very promising, as was what
appeared to be genuine consultations with NGOs. It appeared to
be the intention to look fully at the public interest in public
lands as well as the processes of Treaty settlement employed by
government. PANZ and other groups were invited to contribute and
it appeared that an independent review of Government's less than
satisfactory performance, and recommended changes in the process,
might result.
However the inquiry recently became an "investigation into
procedures for maintaining the quality of the environment in the
settlement of Treaty claims", a quite different, and much
narrower focus from that embarked upon. The questions of process
and public consultation, being the prime matters at issue, will
"not now constitute the main focus".
May 1995. 'Public Access', No. 4
Meaningful public consultation
on proposed Treaty settlements involving public lands is essential.
PANZ is pursuing such a goal. This is to ensure government accountability
for its decisions, and to meet legal requirements arising from
the duty of trust under which the government holds such lands
on the public behalf. These are public lands, not government SOE
lands where no such obligations exists.
Jim Guthrie, lawyer and chairman of the New Zealand Conservation
Authority, disagrees. Mr. Guthrie has stated that in "strictly
legal terms" the land belongs to the Crown, which has no
legal requirement to consult, but he was confident Government
would allow public input (Otago Daily Times, March 10, 1994).
However the Minister of Justice earlier stated that, in relation
to the Greenstone properties, that the Government does not consider
that the public has a "clear and appropriate interest"
sufficient to warrant consultation (D Graham to PANZ, February
2, 1994).
PANZ has submitted to Mr. Graham a three-step public consultation
process (available on request) to restore public confidence in
the Treaty settlement process generally. It is known that officials
are developing a consultation process but Government has not announced
any commitment to this. Please do your bit to encourage Government
to take the public interest seriously.
What you can do
Write to the Prime Minister and the Minister of Justice asking
for a public consultation process prior to decisions being made
to use public lands in settlement of Treaty claims.
August 1995. 'Public Access', No. 6
At a series of hui around the
country, Government proposals for a "full and final settlement"
of historical Treaty grievances against the Crown received a rough
time from Maori. The one billion dollar cap for claims settlements
has received wide coverage, and condemnation. This is despite
Government recording that claimants do not have to agree to a
'fiscal envelope', or the amount in it, as a precondition to negotiations
with the Crown.
The implications of the Crown's proposals for Maori are major.
However there are also monumental implications for all New Zealanders
with an interest in the welfare and use of the conservation estate
and other natural resources.
For many months PANZ and other outdoors groups have been voicing
their concerns at the manner in which Government has embarked
on claims settlement. We have repeatedly called for a public consultation
process, and for Government to stop acting as judge and jury of
its own culpability for alleged Treaty breaches. Government is
increasingly bypassing the Waitangi Tribunal as the arbiter on
matters of history and fact. Executive government -- the Crown
-- is deciding whether itself is "guilty" of Treaty
breaches without independent hearing, and testing, of evidence.
The conflict of interest is obvious, but apparently not compelling
enough for Government to step to one side. The separation of powers
between government and judiciary is fundamental to our constitution,
and to the principle of natural justice, but apparently is of
little consequence to our decision-makers.
In its proposals for Treaty settlement, Government imposes stringent
accountability provisions for Maori claimants to ensure that their
negotiators have a proper mandate to act. However no such measures
are proposed as a check on the Crown's actions.
PANZ's concern is because of the consequence of the Government's
approach for public lands and other resources. Government is making
a habit of dispensing public lands to Maori claimants with no
validity to their claims. It is expedient, and cheap, to play
fairy godmother with public lands as a political sop to Maori
aspirations.
As a 'free' resource there will obviously be less vigour placed
on validating claims over public lands than for commercially valuable
SOE assets. The absence of SOE lands in settlement offers by Government,
and the rash of offers involving the conservation estate, is witness
to an unprincipled and fiscally driven approach.
The proposals deal with surplus Crown land, the conservation estate,
natural resources (including water, river and lake beds, foreshores,
seabeds, minerals), and lands gifted to the Crown by Maori for
a variety of public purposes. In contrast, the proposals do not
make specific provision for use of SOE assets.
The Crown Proposals for the Settlement of Treaty of Waitangi Claims
--
Natural resources
PANZ largely supports the Government's proposals for claims relating
to natural resources. The Crown's view is that "special rules
must apply because the Crown controls these in the interests of
all New Zealanders". We endorse the Government's view that
Article I of the Treaty gives the Crown the authority to govern
in the interests of all New Zealanders, and this includes controlling
the use of a resource for the common good. Government does not
consider that Article II guaranteed to Maori the ownership of
natural resources, but accepts that Maori have 'use and value
interests' under this Article.
The Government proposes that if land containing natural resources
was fairly sold by Maori to the Crown, there would be a claim
over the resources only if it was clearly understood that Maori
could continue to use them. It is inconsistent for government
to establish such a principle, which lies at the heart of the
terms of the Treaty, and not to apply it to all Crown assets including
the conservation estate. Establishing that a grievance is well-founded
must apply in regard to all Treaty claims. Acting contrary to
this principle is itself in breach of the Treaty.
Unlike for the conservation estate, the proposals specify Treaty-related
criteria to form the basis for negotiation over natural resources,
including breach of agreement and wrongful confiscation. Public
consultation will occur "if any change in the public's interest
in a resource is contemplated". However no mechanism for
consultation is specified.
Gifted lands
For claims related to gifted lands, the proposals provide a sequence
of tests for judging whether breaches occurred of the trust under
which the Crown held such lands. This is in contrast to the conservation
estate, where there are no such standards to test the validity
of claims.
Conservation estate
"In general the Crown proposes that conservation estate land
should not be used to settle claims. The Crown considers that
it administers the conservation estate on behalf of all New Zealanders
and that the rights of the general public to use the conservation
estate should not be affected as a result of Treaty settlements.
It also believes that it has a responsibility to protect the natural
and historic resources of the land".
Notably absent is any mention of Crown responsibility to maintain
the public patrimony in these lands through continuing Crown ownership
and control. The only 'property rights' the Crown will protect
are the private property rights of third parties such as concessionaires.
Public property rights don't get a mention. The 'potential interests'
of concessionaires and the needs of sectorial interests such as
the tourism industry "will be considered", but not that
of the public who are the true owners of the land.
"Existing public access and recreation rights will not be
reduced, except to protect the natural and historic values".
In PANZ's view the latter qualification is unnecessary and dangerous.
The values of the land are already protected from public overuse
or misuse by the legal status or classification of the reserve
or conservation area. Different degrees of tolerance of recreational
use is already specified under law for each area. A duplicating
'conservation' constraint on public recreation and access, tied
to handing ownership or control of public lands to private (Maori)
interests, could be loosely used as a pretext for unwarranted
restrictions on public use and enjoyment.
As noted earlier, unlike for natural resources and gifted lands,
there are no Treaty-performance or breach-of-contract criteria
that must be first satisfied to validate a claim, only loose criteria
of suitability or importance for Maori. The proposals talk about
'discrete sites' where "special significance is demonstrated".
There are other sites which have "special importance to Maori",
for instance lake beds, river beds, and mountains. There are no
measures of 'special significance' or 'special importance' and
no limitation in area. 'Discrete' implies smallness, however its
dictionary meaning is 'separate' or 'individually distinct'. The
temptation for claimants will be to describe everything they want
as 'special', presumably being "more special" than for
every other New Zealander! There is no burden of proof required
in this regard, and no requirement that the 'special' status derives
from a proven breach of the Treaty.
Government's privatisation agenda is revealed by a willingness
to divest ownership or control over 'discrete parcels of land'
"where the overall management will be maintained or enhanced
as a result of use in claim settlement".
Public ownership and control will be able to be divested to claimants
for no other reason than their alleged ability to manage the area
as well or better than DOC!
Three possible mechanisms "for resolving grievances"
over conservation estate are proposed. They range from transfer
of ownership with or without conditions, revesting the land with
conditions including the ability for return of the land, and transfer
of management of the land.
Government is still on a 'private management of the public interest'
ideological kick, placing reliance on convenants and paper safeguards
rather than on public ownership and control as the best assurance
that the public interest in these lands will be protected. Government
might have learnt something from its limited experimentation with
private ownership mechanisms such as at Mt. Hikurangi, on the
East Cape. In 1991, 5000 hectares of conservation area were given
away to Ngati Porou in a spirit of 'partnership', in the absence
of a Treaty claim. However two and a half years ago there was
a breach of the terms of vesting of ownership. Denis Marshall
is still involved in secret 'discussions' with the tribe to try
to resolve this and other matters. The breached condition was
for a "free right of public foot access to the mountain".
It is apparent that, despite legal mechanisms being available
to either enforce the conditions or require return of the land,
there is not the political will to do so. The public interest
in ensuring proper protection of the land and retaining public
access has been lost as a consequence.
Government clearly sees the Mt. Hikurangi model as the way forward
for divesting its responsibilities for the 30 per cent of New
Zealand that is held in the public conservation estate.
In the proposals for settlement of Treaty claims the Government
notes that the roles and responsibilities of the Crown and Maori
must be explicit in any settlement involving the conservation
estate, including legal accountability. However the Hikurangi
agreement was as legally accountable as you can get; it was done
by way of a court order. From this, and other experiences, it
is apparent that such mechanisms are liable to fail as a matter
of normality, due to lack of commitment from Government to uphold
the public interest.
As a further meaningless sop to public concerns, Government "acknowledges
the value of carrying out consultation with the public and non-government
organisations over settlements involving conservation land".
However there are no commitments to consultation as "any
special processes for this consultation will be developed on a
case-by-case basis". Ad hocery, inconsistency, and lack of
real standing for the public, being the consequence of current
Government mishandling of claims involving public lands, are destined
to continue under the Crown's latest proposals.
It is highly inconsistent of Government to commit itself to public
consultation over natural resources, "if any change in the
public's interest in a resource is contemplated", and not
to do so over the public conservation estate.
Unlike most 'natural resources', the conservation estate is specially
dedicated for public purposes and held in trust on the public's
behalf by the Government. It has the highest order of public interest
of any of the state assets proposed for claims settlement. It
is incomprehensible, and inexcusable, that the public will not
be fully consulted if any change in the public's interest is contemplated.
What you can do
Write a submission to--
Office of Treaty Settlements
Department of Justice
Private Box 180
Wellington
By 31 August 1995 or as soon as possible thereafter
Lobby group Public Access New Zealand yesterday challenged the
way Maori occupying Moutoa Gardens in Wanganui are interpreting
the Treaty of Waitangi.
Spokesman Bruce Mason said Maori protester Ken Mair had quoted
article 2 of the Treaty of Waitangi when justifying the occupation
at Moutoa Gardens.
On Wednesday Mr. Mair said Maori were asserting their sovereign
rights as they were entitled to do under article 2 of the treaty.
But Mr. Mason said Mr. Mair was only half right and his claims
were therefore not legitimate.
Article 2 states that the Queen guarantees to Maori the full exclusive
and undisturbed possession of their lands, estates, forests and
fisheries and other properties "so long as it is their wish
to retain these in their possession".
"But it also states that Maori would exclusively sell land
to the Crown", Mr. Mason said.
"The treaty is a two-way contract. There are duties and obligations
on both parties, not one way as Mr. Mair implies". Once land
was lawfully sold to the Crown there was an obligation on the
vendors to honour the terms of the sale. "In the absence
of a proven breach of the treaty by the Crown, demands for a return
of ownership are in direct violation of the contract," Mr.
Mason said.
Public Access was concerned that Maori protesters were attempting
to gain control of public land like Moutoa Gardens when there
was no proven basis for their claims.
Two legal opinions -- recently given to the Wanganui District
Council -- had confirmed that the land which is now Moutoa Gardens
was lawfully bought from Maori last century.
Meanwhile, acting Prime Minister Don McKinnon said the Gardens
could not be set aside as a Maori reserve under the Maori Lands
Act as the gardens were neither Crown nor Maori land.
He said the Government was aware the dispute at the gardens in
Wanganui could escalate and would continue to monitor the stand-off.
Western Maori MP Koro Wetere yesterday wrote to Maori Affairs
Minister John Luxton asking him to set aside the gardens as a
Maori reservation. He said the machinery was in his hands to resolve
the crisis and to maintain the dignity of the citizens at Wanganui.
The Wanganui District Council on Wednesday ordered Maori protesters
occupying the gardens, which they have claimed as Maori land,
to leave within seven days. --NZPA
(Reprinted in 'Public Access', No. 6. August 1995]