Monday, December 12, 2022

Bad faith all the way down

When the government created state-owned enterprises in the 1980's, Māori were concerned. Land stolen from them could be transferred to these SOEs, and effectively put beyond the reach of future treaty settlements. So the New Zealand Māori Council took the government to court, and won a landmark ruling that that the government had to safeguard Māori interests. As part of the settlement of this case, the government agreed to pass legislation making land transferred to SOEs subject to a permanent right of resumption if ordered by the Waitangi Tribunal.

While the law was passed,it wasn't used, with iwi preferring to negotiate with the government rather than go to court. Until 2010, when a Wairarapa hapu decided that it wanted its land back. That land was on the Waikato river, had been stolen by the government from other iwi before being gifted to the Wairarapa group, and is the location of a pretty important power station, so its a complicated case which has been in court for over a decade. But on Friday the Supreme Court finally ruled on it, declaring that it was a problem for the Waitangi Tribunal to sort out. Which seems sensible: they're the appropriate body with the specialist knowledge to determine who, if anyone, the land should be returned to. And that's ultimately what the 1987 settlement envisioned: the Waitangi Tribunal would consider claims, and order return if required.

But the government isn't going to let that happen. In the interim they've negotiated a settlement with the "large natural grouping" the hapu belong to. Naturally, it includes the usual clause declaring the crumbs the government gives back to be a full and final settlement of all historical claims and cancelling all the resumptive memorials allowing land to be returned. In effect, kill the process, keep the land, and fuck you. They've done this despite advice from the Waitangi Tribunal not to do it, and despite pointy questions from the Legislation Design and Advisory Committee (LDAC - an independent body which oversees legislation to stop this sort of thing) about why they're legislating when the court process is still ongoing (rather than, say, removing the case from the settlement so it can take its course). And they're ramming it through tomorrow, just to make sure everyone knows that Māori will never get their land back except by the grace and favour of the government, and that while the law says they have legal rights, in reality they have none at all.

It is difficult to see this as anything other than a tremendous exercise of bad faith, which effectively overturns the 1987 SOE court settlement and makes the promise of resumption a lie. As for the Treaty "partnership", is it really a "partnership" when one party calls the shots without consulting or considering the other? And of course its another ongoing Treaty breach. And I can't think of a better way of undermining the entire settlement process than this.

(OTOH, it is also going to undermine the concept of "full and final" settlements. A settlement is not full and final unless the victims agree it is, and continue to agree that it is. Effectively, they're only final by ongoing Māori goodwill. And the government's weaponisation of settlement legislation is likely to significantly erode that goodwill...)

This is unjust. It is wrong. It is stupid. The government should not do it.