Tuesday, February 28, 2006

Rawiri Taonui: No justice where accused is judge

The ongoing debate within Ngapuhi about taking a claim to the United Nations instead of the Waitangi Tribunal or Office of Treaty Settlements reflects the difficulties that confront tribes entering our settlement procedure.

Both the tribunal and Office of Treaty Settlements lack independence. OTS is made up entirely of government servants. The tribunal has representatives from the Maori community, but none is elected - all are Crown appointed.

Contrast this with British Columbia where Indian groups and the government each appoint half of the members to the BC Treaty Commission and the chair is chosen by consensus.

The commission both investigates claims and negotiates settlements, whereas New Zealand divides the process and tribes have two options: to obtain a report from the tribunal then enter negotiations with OTS, or circumvent the tribunal and proceed directly to the OTS. The first takes more time but includes a recounting of the facts. The second is quicker, but without the same historical investigation.

Most tribes go to the tribunal because they believe establishing the history is important. Unfortunately, for several years now, the Crown has restricted the tribunal's budget in an attempt to force tribes to go to the OTS instead (its budget is four times that of the tribunal).

Tribunal reports are non-binding on the Crown. The Crown through the OTS will instead unilaterally decide a summary of which aspects of the claim it deems are valid. Entire reports can be easily set aside - the OTS summaries of the Taranaki settlements were hundreds of pages shorter than the original report.

If the tribe thinks this unfair, they have recourse through the tribunal whose findings will be non-binding.

Ngapuhi will be the weaker partner in negotiation. Contrary to UN guidelines the Crown does not ensure negotiating tribes have the legal, administrative and research support they need.

The OTS might also step around the accepted tribal structure and negotiate with what it calls a large natural grouping. As with all ambiguity in cross-cultural situations, this one favours the powerful. OTS will pick and choose who it talks to.

Again, contrary to UN guidelines that recommend either the return of all land or the equivalent in compensation, the amount of land returned will be minuscule and total compensation a one-off payment of 1 to 3 per cent of losses.

Our government argues this is all the country can afford, ignoring options explored in other countries. Canada for example makes reparations over several years to achieve a greater justice.

The poor level of compensation is a particular rub when Pakeha deride Maori as privileged under the Treaty. Humiliation is part of the process. In all, the tribe will have to justify their claim three times: at the Tribunal, with OTS and before a select committee of Parliament (when the legislation is drafted).

Some argue that to save time Ngapuhi should go straight to OTS. I urge Ngapuhi to go to the tribunal first. The inequities aside, it is important to document as much of the claim as possible. Whether complete or full, the report will remain the most comprehensive account of wrongs against the tribe.

Treaty testimony lifts the burden of the past that is etched into the hearts and minds of tangata, whanau, hapu and iwi, by explaining historical despair to present and future generations.

Our Treaty process is a twist on criminal justice. There is a perpetrator, the Crown; and a victim, Maori. The perpetrator stole, obtained illegitimately or defrauded the property of the victim.

There is an investigator, the tribunal. A jury, the perpetrator in the form of OTS, decides guilt by approving which of the facts the investigator produces are relevant. This all seems pretty handy for the perpetrator. On second thoughts, Ngapuhi should go to the United Nations.

* Rawiri Taonui is head of the school of Maori and indigenous studies at the University of Canterbury.

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