Settling Treaty Claims: The Formation of Policy on Treaty of Waitangi Claims in the Pioneering Years, 1988-1998 Therese Suzanne Crocker A thesis submitted to the Victoria University of Wellington in fulfilment of the requirements for the degree of Doctor of Philosophy Victoria University of Wellington 2016 ABSTRACT For the past quarter-century the New Zealand government has negotiated with Māori groupings to find ways of compensating for the Crown’s historical breaches of the Treaty of Waitangi. The negotiations take place between mandated claimant negotiators and officials who represent the executive arm of government; the resultant settlements are then endorsed by legislation that declares them to be ‘full and final’ resolutions of historical grievances. This thesis analyses the way New Zealand governments conceived, introduced and implemented policies to address the claims during the pioneering years 1988–1998. The foundational policies worked out in this decade bedded-in the Treaty claims settlement processes which are now nearing their end. Through examining official archives, the thesis finds that these processes initially emerged as policy-driven responses to a combination of factors, such as the broad context of the ‘Māori Renaissance’, social shifts in understanding the past, legal cases and political pressure from iwi. The thesis goes on to explore several years of experimental negotiations and policy formulation which culminated in the Crown’s presentation in 1994 of both a suite of draft policies intended to offer a comprehensive approach to the negotiations process and a notional quantum of $1 billion to settle all historical claims (the ‘fiscal envelope’). It demonstrates that while this package was introduced to shape and contain the emergent settlement mechanisms and their outcomes, policies continued to be modified in highly significant ways. The major settlements negotiated with Waikato-Tainui and Ngāi Tahu, in particular, led to new developments which established the broad shapes of Treaty settlements, and key aspects of them, from the end of the twentieth century onwards. Over 1988–1998, then, the Treaty settlements process transitioned from ad-hoc development of policies and arrangements into an entrenched system, yet one that was flexible enough to change in the course of negotiations with new claimant groups. i Dedicated to Graeme, Hannah and Jessie ii REMEMBERED WITH LOVE ‘Bob’ Robert McKenzie Craig 1921-2012 Robert ‘Barry’ Craig 1947-2015 Jean Margaret Yetton Brown 1931-2016 iii ACKNOWLEDGEMENTS He rangi tā Matawhāiti He rangi tā Matawhānui The person with a narrow vision sees a narrow horizon The person with a wide vision sees a wide horizon I wish to express my sincere appreciation to my supervisors Professor Richard S. Hill and Associate Professor Peter Adds, for their enthusiasm, advice and support of me. I also acknowledge the experiences of the Treaty settlements process that each of them brings. I want to thank Professor Lydia Wevers, whose experience and keen copy editing eye has been a great boost over the last few months of this process. Thanks to you all for not giving up on me, and not letting me give up either. I am grateful to the funding from a Victoria Doctoral Scholarship and a Victoria Doctoral Submission Scholarship. A particular thanks to the Stout Research Centre administrator Debbie Levy, and former administrator Louise Grenside, who both provided much help and assistance throughout my thesis. I have thoroughly enjoyed the friendship and collegiality of the Stout community. To Justin Cargill and the distance staff, and other librarians at the Victoria University of Wellington library, thank you for your expertise and professionalism. I would like to acknowledge those who agreed to be interviewed for this research, both on and off the record. Thank you for your time and your generosity towards me and this topic. I enjoyed our time together. I am also grateful to the staff at the Office of Treaty Settlements who facilitated my access to the files of the Treaty of Waitangi Policy Unit and the Office of Treaty Settlements. The material was invaluable to this research. iv I have been fortunate to enjoy the benefits of great discussions and encouragement from so many as I have worked on this thesis. Thanks in particular to Hazel Riseborough, who for many years has been a source of deep wisdom and friendship. To Marianna Churchward, Janine Hayward and Martin Fisher, and many others, thanks for the great discussions and your enthusiasm (for me) and this project. To my Granny, my parents, my brothers and sisters, all my extended family and the many friends who have supported me (and our family) in so many ways over the journey of this thesis, thank you. Those who offered insight to the academic process, and those who demanded no more than my presence, I have carried you with me through this journey. I really appreciate your encouragement, hospitality, curiosity and support. It has sustained me through some long days. It has been an absolute privilege for me to have been able to return to study to write about this area, which I am passionate about. None of this would have been possible (or worth it) without the boundless enthusiasm and love of my patient and very understanding husband Graeme Brown and our beautiful daughters Hannah and Jessie. You have all sacrificed so much for me to fulfil this goal. We did it. v CONTENTS Abstract .......................................................................................................................... i Acknowledgements .................................................................................................... iv List of Abbreviations .................................................................................................. ix INTRODUCTION ........................................................................................................... 1 Sources..................................................................................................................... 12 Chapter Structure ..................................................................................................... 19 Chapter One: Looking backward to move forward ............................................... 23 Commissions of Inquiry ............................................................................................ 25 The Māori Renaissance ........................................................................................... 29 The Establishment of the Waitangi Tribunal ........................................................... 31 ‘Two People in One Nation’, 1984 ........................................................................... 35 'A Catalyst for Action': The 1985 Treaty of Waitangi Amendment Act ................... 37 The Treaty in a Policy Context................................................................................. 41 The State-owned Enterprises Act ............................................................................ 43 1988: The Establishment of the Treaty of Waitangi Policy Unit ............................. 46 Chapter Conclusion.................................................................................................. 49 Chapter Two: ‘Establishing a pattern for the future’: 1989-1990 ........................ 51 The Treaty Reassessed: Court Decisions and Policy Development ...................... 54 Waikato-Tainui ‘Scoping Negotiations’ .................................................................... 57 Principles for Crown Action ...................................................................................... 59 The Crown Asserts its Position on the Treaty ......................................................... 64 A Reassessment of Historical Claims ..................................................................... 68 1990: The Treaty and the General Election ............................................................ 72 Chapter Conclusion.................................................................................................. 75 Chapter Three: Rapid Policy Development 1991-1993 ......................................... 77 National Government in Power ................................................................................ 82 The Development of the ‘Framework’ Policies........................................................ 85 Historical Grievances vs Contemporary Problem-solving ...................................... 88 Introduction of the Ten-year Programme ................................................................ 89 vi Principles for the settlement of Māori claims .......................................................... 91 Fisheries Agreement September 1992.................................................................... 93 The Policy Debates Continue .................................................................................. 94 Historical and Contemporary Claims ....................................................................... 97 The Authority of the Tribunal and the Settlement Fund .......................................... 98 Chapter Conclusion.................................................................................................. 99 Chapter Four: Finalising the Crown Proposals 1993-1994 ................................ 101 The 1993 General Election .................................................................................... 104 The Government and the Waitangi Tribunal ........................................................