The Whakatohea Treaty settlement legislation is an unconscionable injustice

Whakaari let off a few puffs in the last couple of days – just minor eruptions. The last big one coincided with a discovery of an old grave site in Opotiki. I can’t recall exactly which it was – the grave at the Waiotahe Drifts subdivision or the mass grave by the Waioweka river – an unmarked, unrecorded urupa of post-contact Maori buried in coffins. This sort of thing happens more often than anyone can imagine. Whenever it goes off I wonder what it may coincide with.

A Pakeha farmer was levelling out a paddock to convert to kiwifruit when a digger uncovered dozens of graves. The Whakatohea Maori Trust Board (as you will see below a most corrupt organisation at odds with the Hapu) ushered in their unmandated archaeologist to rubber stamp everything without anyone else knowing in those two instances and no-one seems to have given it a second thought after that. No sectioning off occurred – just a pin on a map and an archaeological notation and a hope the site isn’t further degraded.

This remarkable lack of concern and interest is quite typical of the trust board. Are the graves a result of the war crimes perpetrated by the colonial forces that invaded in September 1865 in order to confiscate the “rebel” territory? Considering the “Raupatu” is a by-word for the settlement it may astound outside observers to find the Iwi’s trust board simply couldn’t care less. The trust board has never shown any support either for the Treaty commemorations put on by the Hapu. The trust board is a collection of the least intellectually curious, most superficial and incompetent individuals. The Treaty for them is just a means to keep the board going in the form of a corporate entity and continue to enrich themselves at the expense of everyone else. Indeed, ask the older people and they will tell you how the original Whakatohea settlement on the 1940s was hijacked by an elite and their lawyers – a woeful tale. One about to repeated.

An illustration of the trust board’s dysfunction and the venality of its inner circle is the $100,000 in legal fees paid out because the board’s staff failed to answer a letter and renew the charitable status of the fisheries trust which landed them in hot water with IRD. The staff member responsible was never sanctioned and neither was the CEO. The staff members are close relatives of the board members so the CEO can’t discipline them for fear of losing her job, so there is no effective accountability internally. Externally too there has been little to no accountability.

The Maori Affairs Minister – when they finally got around to a long called for inquiry under Mike Heron KC – whitewashed as much as he could, but the findings criticising the CEO for her conduct of the board elections (eg. accepting a late nomination for a pro-settlement candidate and not others) resulted in weak recommendations that were themselves subsequently ignored and the board went straight back to business as usual.

The Maori trust boards, as creatures of statute, are elected from an Iwi register (which is kept secret so it cannot be verified) but their appointments and accountability and that of their CEO is to the Minister and in that respect they are essentially a Crown entity. So, when the trust board has its AGM none of the votes taken have any standing, the “beneficiaries” have no power whatsoever. The board does as it pleases regardless.

The central concern for both the trust board and the government – and it is irrelevant which party is in government, Ministers Finlayson (National) and Little (Labour) were both high-handed arseholes – is to carry the trust board into a corporate trust which will continue to suppress the Hapu. The trust board has fought the Hapu on environmental matters at every turn in pursuit of commercial outcomes and the demands of their government and Pakeha business partners – the objective in the settlement process is to entrench that subjugation. The new corporate entity is called “Te Tawharau” – a term borrowed from, or rather stolen from, Te Kooti’s proverb imploring protection. Te Kooti would have executed every one of those evil fools of course, but history has never been their strong point.

Looking at the new regime we see a private trust, the very weakest most unaccountable of any possible entity, that is littered with pernicious clauses throughout: eg. secret rolls, the CEO can fire a staff member and they are automatically disqualified from standing for election, the elected members are forced to support the legislation, and most egregiously given the oath of allegiance to the Crown which our tipuna had to swear in order to survive following surrender: elected members cannot take office without first swearing an oath to uphold the trust. It is sickening. Given the litigious proclivity of the board and the swarm of lawyers on both sides and given that private trust disputes must go through the costly proceedings of the High Court (rather than the Maori Land Court for example) there will be a lot of money going out of trust funds and into lawyers pockets. The government could not be happier. It is a truly great victory for the white man and their colonial project – the Pakeha of Opotiki will be celebrating more than anyone else: they got away with it.

By chance last week a friend I saw at the Opotiki library mentioned (she glanced around and whispered in a conspiratorial tone) that “they are having a third signing at parliament.” She didn’t have the words right, but I knew what she meant. “On the 28^th.” So, the Whakatohea settlement bill is back in parliament and going to be passed on the anniversary of our Treaty of Waitangi signing in Opotiki (27 and 28 May 1840). The board wasn’t allowing those opposed to travel down in the bus was the gist of her korero. Just like last time. I checked the parliamentary website – there it is at No. 1 on the order paper. The sordid saga is in the final stage.

Far from unique (see below for the Ngati Paoa parallel scenario), this abominable and shameful farce has riven the Iwi. “Our settlement journey” – as the sanitised PR guff says – was apparently the will of the collective. It is utter nonsense, indeed just quite simply false. A handful of trust board members and their CEO have hijacked the process from the start with the full and knowing connivance of the government officials and succeeding Ministers of Treaty Settlements. The resulting deal is risible.

The facts are plain enough in the detailed chronology provided by the Waitangi Tribunal who is having their inquiry into the historical claims completely overridden by the legislation – the trust board group circumvented the process agreed by the Hapu and with the help of government funding and voting procedures that would make Vladimir Putin blush has strong-armed and worn down the Iwi. Even with overwhelming financial, administrative and legal advantage they could only get to 68% of the vote on a turnout of 35% (well under the 75% needed in a Fisheries vote for example).

A commenter to a column I wrote earlier this year mentioned that one of the main reasons the Treaty settlement process had generated such pathetic deals for Iwi was that the leadership was dominated by women and gay men. The traditional male leadership had been absent, sidelined deliberately was his thought, so that the less confrontational and more amenable personality types had taken over negotiations. Contemporary Western values and the education system had elevated these people into leadership – and pushed traditional males out – was the point he was trying to make. Sadly, I can confirm his analysis in the case of Whakatohea is correct, entirely correct. The commonality appears to be selfishness, superficiality and a fear of missing out. The three Whakatohea male speakers at the Deed initialling at Te Rere Marae for example were all mincing about; the women instrumental in the corruption were all fluffing about making themselves prominent despite having no role there. Age as well as gender and sexuality is also an evident factor: most of the kaumatua were absent and the rangatahi were in their place. Western values and the education system have promoted the youth well beyond their place, but really it is the small clique that have recruited the ignorant youngsters as foot soldiers, unwitting kupapa, in their machinations. The kids are really quite clueless and having been told they are leaders, having been employed by the trust board, having been paid by the government, they have become most haughty and downright disrespectful. Could you imagine this group of flim-flam air-heads ever having the mana to sign the Treaty in 1840!? It is preposterous to think so and the fact they have signed – supposedly on our behalf – in this time is equally preposterous.

I made an oral submission to the Maori Affairs Select Committee that sat in Opotiki in March. I wasn’t hoping for much because I had seen the way other submissions to other Treaty bills had gone (see below). I imagined that the committee may end up with several minority reports. On checking the parliamentary website I see their report is unanimous. I can hardly believe it – it is unfathomable, it really is. How can these MPs – all of these goddam MPs – knowing the problems and the falsehoods in the bill (I and others had highlighted these numerous items and we were not contradicted at all) go along with it? How? The Greens and Te Pati Maori too! Let down is a gross understatement. They have no credibility after this, no integrity, none.

The one thing that stood out for me in the select committee process was the silence. The Nats, Act and Labour members had nothing to say beyond cursory vacuous pleasantries towards the kaumatua. It was Adrian Rurawhe who summed it up best in conduct as much as in words: he made a statement at one point that the matter was wholly political and it would be a political decision nothing more. So why are you here, Mr Rurawhe, if our submissions mean nothing to the outcome – that was what everyone was thinking. Indeed, at one stage a kuia was on the verge of tears recounting the struggles they faced and during the entire time Rurawhe never looked up from his phone he was scrolling, not once. I saw Rurawhe again on the livestream the following day in Wellington where they were hearing the remainder of submissions from inside the sanctity of the Maori Affairs room: he was stuffing his face with a scone at one point during the proceedings – what a slob of a man, just a slob. He may be a former Speaker of the House, but he showed the utmost disrespect to everyone – was he resentful at having to be there? I think that sums up everything you need to know about him and that committee.

Below is my written submission on the Whakatohea Claims Settlement Bill.

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My name is Timothy Selwyn Herewini, 49, of Te Ana o Te Tahi, Opotiki.

My father was David Huia Herewini who was a former Whakatohea Maori Trust Board member and Whakatohea Fisheries Advisory Trustee.  I have served as the Deputy Chair of Ngai Tamahaua Hapu since 2012.  I am an adviser to Trustees of Opape 20 – which includes papakianga, grazing, bush and kiwifruit blocks.  I have a MACA application direct to the Crown for Marine Title to an area at Opape on behalf of Opape 1A19B owners (Ngai Tama Lands Trust) and a Protected Customary Right from Whakatane eastwards across the whole Whakatohea area on behalf of Ngai Tamahaua Hapu.

I hold a Bachelor of Arts in Politics and Philosophy from Auckland University and Certificates in Marine and Freshwater management from Te Wananga o Awanuiarangi.  I have mainly been involved in taiao matters for the Hapu since 2012 including more recently opposing the Pakihikura harbour development in the Environment and High Courts.

I have opposed the settlement process from the start and oppose this Bill.

I wish to make an oral submission in support of this written submission. I request the select committee convene a hearing in Opotiki at a neutral venue (ie. not a marae).

Background and viewpoint

I have been involved in the Whakatohea settlement process since 2011, attending many hui, writing many submissions, and working to assist Waitangi Tribunal claimants including Tracy Hillier and Rita Wordsworth (Wai 1781 on behalf of Ngai Tamahaua Hapu).

I have previously submitted in person at Waiaua Marae to the select committee on the Mokomoko Pardon (Restoration of Character, Mana and Reputation) Bill in 2012.  I supported that Bill with reservations on the matter of Mana not being able to be conferred or removed by the NZ Parliament and the matter of the redress being insubstantial.

I have seen a few hours of the select committee hearing the Ngati Paoa Claims Settlement Bill just before parliament rose for the general election and see the same type of grotesque injustice being played out in the same way here as was occurring there: the same weak redress, the same unfair voting processes, the same grasping, inept, shallow, shonky people manipulating the mandated entity, the hearty “average” ahi ka person exasperated, complaining politely against the take-over and the select committee seemingly oblivious to the elephants in the room. It seems to me that the dreadful and calamitous outcomes of the settlement process for average people and the accompanying lies that are being told and swallowed are just normal operating procedure for the select committee who is just another rubber stamp in a fait accompli to lock in a permanent state of colonisation on terms dictated by the NZ government.  There seemed to be an apologetic, fatalistic inevitability from committee members that they could not and would not do anything to rectify the systemic problems with the settlement bills.  These observations of the committee and the experience of the process to date do not leave me with much regard for the credibility of any politician, government official, lawyer or anyone connected to it.

Every government-paid person from the beginning has been rubber stamping the settlement through each stage over the objections of the vast majority of Waitangi Tribunal claimants. The Tribunal has been a disgrace – they have gone absolutely out of their way to permit it to continue using the most spurious reasons in face of overwhelming evidence the settlement is inherently malformed.  The government officials have been a disgrace – they have furnished one fictional account after another to ministers.  The ministers have been a disgrace – they have known their officials have been misrepresenting facts, have been indifferent to the sufferings those opposed have endured due to their decisions and have seen their purpose as subduing and short-changing the tribe.  The ministers have been patronising and disingenuous in the extreme.  The pro forma style statement on the Beehive website on the Settlement signing 27 May 2023 puts a lie to the professed concern and sincerity of the government as it is a generic statement omitting any mention of the invasion and confiscation – it clearly doesn’t matter to them, it is a whitewash.

There has been no shred of validity in any of the stages of the settlement.  None.  The government has paid the very worst and most notoriously corrupt people of the tribe to drive the very worst settlement through in the most reckless way.  The speed in which it was done says everything about its motivation – the NZ government’s terms of negotiation were simply agreed to without thought or debate and returned to the minister within the week (where other tribes have taken two years).  The one-sided funding and the running of voting by the settlement trust is undemocratic.  The use of the WMTB voter rolls was unlawful.  There is no way these shenanigans would be acceptable at local government level.  The conclusion is the settlement regime is utterly corrupt and has no credibility whatsoever

Summary

Everything is wrong with this Bill that can be wrong. The Bill is the poisoned fruit of a poisoned process made by poisonous people.

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Given the purpose of the Bill is to impose a final and durable agreement and given most of the claimants and most of the people do not agree it therefore cannot be final or durable.  So if it has no legitimacy and cannot meet its objective what is its value?  It is hated and the people behind it are loathed.  What is to be amended to make it better if the whole Bill is flawed? Better the whole Bill be thrown out.

There is a well justified resentment from those opposed that the small group of those driving the settlement have been well paid and supported by the government for many years while all the expenses and costs and time and effort of those opposed – who are forced to defend their rights in processes not of their choosing – have been met by themselves.  This fact is omitted from the narrative of the Bill which paints a fictionalised “happy family” mantra that is untrue and insulting.

The settlement is so appalling in so many ways.  It purports to bind individuals and groups of Whakatohea into supporting the Bill and binding the settlement trust into suppressing opposition. What a pernicious legal nonsense it is.  It is a surrender and the people who signed it are kupapa plain and simple.

The Tribunal’s historical reports and conclusions have not been made.  To continue without the historical record being tested let alone known and yet to be recorded as facts in the Bill is troubling and obviously the wrong way round.

“The Crown” is defined as a list of things in the Public Finance Act 1989 – that cannot be satisfactory.  I refer in this submission to “the Crown” as either the NZ government or the British government as the case may be to avoid using this camouflage terminology.  Britain’s role and responsibility and liabilities must be addressed alongside New Zealand’s.  This UK-NZ problem is for both to solve before any settlement can be done rather than pretend there is no issue when there clearly was a matter of “double government” during the period of the 1860s. The UK-NZ Free Trade Agreement signed earlier this year purports to claim that NZ is “now” responsible totally for the Treaty – this is a provocative statement made without any detail or evidence.

No consultation from Hapu means that many errors have occurred throughout including names being proposed are wrong, sites are mislocated etc.

Please disabuse yourselves of the notion that the tribe will be “missing out” if the settlement is terminated. We have gone through all that before and survived with our rights and opportunities and dignity intact.  The money and the things returned in the Bill will go direct to the governance entity and their immediate whanau no doubt – it will have no impact on the average person.  The land is not being returned to the land owners but this entity for their plans.  The money quantum is a joke and anyone with a calculator can work out what the original $40m offer from 1997 would be worth now – about $80m with only inflation and well over $100m with interest compounding, so the tribe is really being offered less than what was offered 25 years ago.

Clause by clause analysis:

8. Summary of historical account. This is only 14 points and says nothing of the last 100 years and nothing of the role of the WMTB.
9. Acknowledgements. There is no acknowledgement that the “crown warship” was under Royal Navy command and that the other contingents were NZ government mercenaries. There is no acknowledgement that Ngai Tai were the ones put in charge of the concentration camp at Opape and Ngai Tai’s role. The environmental issues are cursory, lack detail and is wholly inadequate.
10. Apology. No apology to Hapu, just to individuals. The patronising tone glosses over events, and considering the trauma of the last ten years of assault from the NZ government during this settlement process the apology is hypocritical and hollow.  The government needs to apologise to those they have steam rolled.
11. Meaning of Whakatohea. Muriwai is the primary ancestor not Tutamure.  The definition allows those not descended from Muriwai to be included under the undefined “recognised ancestor” of a Hapu.

14 and 15. Meaning of historical claims and Settlement of historical claims final. The majority of the claimants do not consent to settling their claims, including Wai 1781 for Ngai Tamahaua. Those that do not consent must be removed.  This is a fundamental concept of justice that is being abused here.

17 and 18. Resumptive memorials. These should remain not be removed.

23 – 25. Protocols. These are unenforceable and weak so the government can do what it wants regardless.

30 – 39. Statutory Acknowledgements. These are weak.  The fact is the authorities already acknowledge the Hapu are mana whenua without having these acknowledgements so what is the point?  Having “regard” is very little. Having the area covered exclude non-Crown land is weak. Clauses 40 and 41 undermines the supposed benefits in decision making.

44 – 46. Official Geographic Names. There are so few names to be added or changed, what is the point?  Many names that should be applied are not, so what is the point?  These names can be changed under normal rules and have been over the last few years without anyone else’s help.

47 – 102. Vesting of cultural redress properties.  All these properties must go back to their rightful owners – the whanau and Hapu – through determination of ownership at the Maori Land Court. A minister has the power under current legislation to give Crown land back as Maori Customary land and should do so.  Giving the properties to the Trust is wrong and improper and exposes the land to commercial exploitation.  Why is the land with the greatest conservation value at the Pakihikura not being protected or made a reserve – is it to be commercially exploited?

55 and 56, 75 and 76. Tirohanga Dunes site 1 – alternative vesting. This puts a lie to the government propaganda that private land is not involved – it is involved quite clearly – and the fact is Ngai Tamahaua have for some many years now objected to the squatting on this DoC land that is going to be rewarded under this clause. More confiscation of land to reward Pakeha squatting – it is an insult.

98. Oroi. Any notion that Ngai Tai can hold half a share in anything west of Tarakeha is unacceptable – it is not their land.

160 – 178. Kaitiaki Forum. A toothless entity so badly constructed that it allows the councils to call themselves “kaitiaki” – an objectionable idea. The Hapu are deliberately omitted so all the land owners powers rest with this governance entity and whatever its corporate agenda will be.  Joint Management Agreements can and should be done between Hapu not with the governance entity.

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For the record my opposition hasn’t just been by way of submissions. I served Minister Little with a trespass notice on the Waiotahe bridge in 2019 as he was transiting through the territory to remind him he was not welcome. I did this on behalf of my Hapu. I was charged later with dangerous driving but pled this down to an obstructive parking charge and got a $300 fine. I had to serve the Minister with another, fresh, trespass notice at the Deed initialling at Te Rere Marae (just down the road from where I live) in 2021 as the trespass notice from 2019 had expired. There was a big protest at the gates from those in opposition and a large police presence plus hired (Pakeha) security who were very aggressive. They had prevented me from attending, despite being entitled to, so I approached from across a paddock, managed to surprise them, and served it on him as he was making his speech from the mahou (porch of the meeting house) by putting the notice down on the table over the top of the deed and then walked out remonstrating with the kupapa who were upset (their official video of this event shows the whole thing). This initialling was on the 23^rd of December just to give you a steer on how dodgy the process has been. I did not repeat this at the Deed signing event in Opotiki township on 27 May last year because I know I would have done something that means I would now be writing this column from prison (yes – it wouldn’t be the first time, but some things aren’t worth an encore!). Others had kept away for the same reason – the effrontery of the whole event would have caused them to sacrifice themselves in an attempt to stop it – I understand their acknowledgment of futility. And just as a write this a pig has wandered into my yard from off the road so that must be to remind me to mention the cops, armed with tasers, came around here last time I issued a trespass notice to sus out my intentions. No matter what happens tomorrow at parliament that Deed and that Bill has no valid consent from Hapu and can have no lawful application.