Last week National introduced its plans to privatise the conservation estate and allow miners free reign to dig up our taonga places. One of the ways it does the latter is by gutting the Conservation Authority and local Conservation Boards, which act as independent advisors to DoC and the Minister on a number of crucial decisions. But having Fucked Around, they're now about to Find Out, with Ngāi Tahu signalling that any change will require a renegotiation of their Treaty settlement:
Ngāi Tahu kaiwhakahaere Justin Tipa said the amendment strips power from the iwi “by turning those boards and the Authority into advisors only and handing decision-making powers to the Minister.”They're not the only iwi affected. The bill amends 57 different Treaty settlements to reflect the regime's preferred new way of doing things - unilaterally and without consultation. Those settlements are literally the work on an entire generation of politicians and iwi leaders. And the overall change - to remove iwi voices and make settlements binding only "to the greatest extent possible" - is an overall weakening of them. It is impossible to see this as anything other than the regime trying to cheat on its agreements, something that is both a clear breach of the state's duty of partnership and consultation under te Tiriti, and which invites renegotiation.“Ngāi Tahu was guaranteed a voice on the New Zealand Conservation Authority and conservation boards which currently hold decision making powers.”
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“The Bill includes proposed arrangements to uphold Treaty Settlements, but it puts iwi in the position of being forced to renegotiate important parts of their settlements to fit within a narrow framework.
“Under the new regime, where elements of a settlement do not fit neatly within that framework, the Crown would only be required to meet them ‘to the greatest extent possible’. In no world does that align with a ‘full and final’ settlement.”
But that's not the only problem. Every settlement made has been negotiated against the backdrop of a strengthening web of Treaty clauses which have variously spelled out the state's obligations and embodied the Treaty principles of partnership, consultation, and active protection. These Treaty clauses have meant that a lot of things which might otherwise have been formalised in settlements has been able to be taken as read. And those clauses have been crucial in protecting Māori rights, including rights under Treaty settlements. For example, the Treaty clause in the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 was crucial in stopping seabed mining because it required decision makers to protect existing interests, which included customary interests.
The regime has already attacked these clauses and removed several (notably in the Oranga Tamariki Act, and Education and Training Act), and now they are coming for the rest. Which again seems to be cheating on the settlements, removing a key way for them to be enforced and protected. And that in turn invites renegotiation, including renegotiation on redress for losses. Because the redress you negotiate with a party which at least makes a show of working in good faith and wanting the settlement to endure is very different from what you demand from one which works in bad faith and gives every sign that it will cheat.
I've said before that Treaty settlements are only "full and final" by Māori goodwill, and whether they stick or not is a political question for each generation of Māori, no matter what the law says. In such a situation, the state would be wise not to call those settlements into question. If it wants them to have any chance of enduring, the state needs to uphold the settlements, including their wider context. Because "full and final" goes both ways, and if the government cheats, the settlements are neither.
