Why apologies matter: learning from the Aotearoa New Zealand experience on Treaty settlements
4 May 2023● News and media
A sincere apology backed by action is the most important part of any Treaty settlement, we need to talk about co-management rather than co-governance, and if Aotearoa New Zealand’s Treaty settlements fail it will be the fault of the Crown, not Iwi (Māori tribes) or politicians.
Those are the views of Hon Chris Finlayson KC, former National Party MP and New Zealand Attorney-General and Minister for Treaty of Waitangi Negotiations from 2008 to 2017, who spoke candidly at a forum at ANZSOG’s recent First Peoples to All Peoples public administration conference.
Spread over three days in Meanjin Brisbane in early March, the conference was a welcome return to an in-person gathering for 800 delegates, and 300+ participating online, to hear speakers from across Australia and Aotearoa New Zealand discuss the rapid changes in First Nations policy in both nations.
Mr Finlayson, assisted by Lil Anderson, CEO of Te Arawhiti and ANZSOG Learning and Teaching Fellow, and Chris Sarra, CEO of Queensland’s Department of Aboriginal and Torres Strait Islander Partnerships, was able to give his perspective on how the process has unfolded in Aotearoa New Zealand to an audience of public servants who are working in the field of potential Treaty negotiations.
In Aotearoa New Zealand, the Treaty of Waitangi (Tiriti o Waitangi) was signed by Iwi and the British Crown in 1840 and guaranteed Iwi control over their lands and a measure of self-government. The Treaty’s provisions were largely ignored by the Crown for over a century, until 1975 when the government set up the Waitangi Tribunal to investigate claims by Iwi of breaches of the Treaty. In 1985 the Tribunal’s remit was expanded to cover historic breaches of the Treaty and make recommendations for their resolution by the Office of Treaty Settlements.
There have now been 97 settlements completed, another 40-50 are underway and there are only three iwi who have not begun the settlement process. The Treaty principles – most notably the recognition of Iwi rights – have been used to deliver tailored outcomes that recognise past injustice and set out a path for the future.
Why apologies matter
Mr Finlayson said that while there were many historical apologies being made around the world, they did not “cut the mustard” if they failed to include concrete steps towards reparation.
“An apology is not ‘just a nice thing to have’ but the most important part of a Treaty settlement. It means a lot to a settling Iwi for the representatives of the biggest power in the land, the Crown, to stand up and say we said we would do certain things in history and we didn’t, that we got things wrong and we apologise and promise that we will act differently in future,” he said.
“The negotiations to formulate an appropriate apology are often long, difficult and emotional, especially about what should exactly be admitted or apologised for.
“The best way of expressing it, is that as a matter of principle, we the Crown signed a Treaty with the peoples of Aotearoa. Specific arrangements were entered into, they were breached and if we want to see a society which looks forward, we don’t have to beat our breasts unnecessarily, but we need to acknowledge that certain things happened and we need to apologise for them.”
“The important thing about the apology is that it doesn’t stand on its own, because apologies that are treaty-based and are coupled with other measures, go a long way towards helping people integrate the past into our lives.”
He said that compensation paid through settlements was not meant to be seen as damages or payment for breach of contract, but for specific grievances under the Treaty.
“In New Zealand terms we follow a careful formula, and we determine whether or not the actions of the crown in relation to that particular Iwi, involved ‘raupatu’ (seizure of lands) without any legal justification, whether there were dodgy contracts or other forms of grievance. We look at the scale of land loss, the population of the Iwi, to reach a figure which is fair in all the circumstances.
“It is wrong to say it is notional, or that it is damages. It is considered to be a sum which will enable the settling group to establish a commercial base.
“There is also a ‘right of first refusal’, which gives the settling Iwi the chance to purchase any surplus crown lands within its territory, and that has been used to great effect by iwi around the country.”
Co-management vs co-governance – a question of terminology
Mr Finlayson said that while terminology around Treaty settlements sometimes used the term co-governance, this was a mistake that opened the door for scare campaigns from Treaty opponents.
“This is frankly an argument over language rather than substance. We are talking about co-management, and we are using co-governance which some people conflate with co-government which is leading to some of the wilder allegations we see in the NZ media from time to time.
“Those who are saying ‘there are these co-governance arrangements, Māori are going to co-govern NZ, this is a breakdown in parliamentary democracy’…are able to do so because we are using the wrong term.”
“We are not exceptional, there are other jurisdictions who are doing this stuff all the time, such as the USA. One example I came across recently is the ‘Bears Ears National Monument’ in Southern Utah which is seeing 1.3 million acres of land managed by the US Forest Service together with five First Nations groups.
Devolving power to make settlements a success
He said that Treaty agreements will work and will be full and final if the government does its thing, but added that in his experience in this country, that the government’s ‘needs of the moment’ tended to crowd out agreements that have been entered into.
“Time and time again I have seen that in the history of New Zealand, and I fear that if the New Zealand government is not mindful of its ongoing obligations, these settlements will fail and we will back to the drawing board again.”
“So there is a risk to settlement projects in New Zealand, and if the settlement project fails it will be fault of the institutional Crown, not of the politicians but of the institutional Crown.”
He said that governments needed to accept that there would never be universal support for Treaty-based settlements, but that there were people who could be brought around to support them.
“There will always be the Archie Bunkers and the sour right, and some people that you can’t satisfy, but there are others who, if you know what you are talking about and express it in simple terms, you may get that message through. You must repeat those matters so that people have a genuine understanding, you have to keep at it, and there is no way round it.”
He said that one of the biggest obstacles in New Zealand was centralisation of government and a belief by agencies that they were the fount of all knowledge.
“New Zealand is a country which is far too centralised and the idea that everything has to be done at the centre is wrong. There is a need for the centre to give up power, because the further people are from the centre the more powerless and ignored they become.”
“Things will never get better until there is a change of heart on behalf of agencies of government, to recognise that they are not the fount of all knowledge, and that devolution and handing over administration to local groups and First Nations groups makes a lot of sense.”
In Australia, all states except for New South Wales have made some progress towards a Treaty with First Nations, but none have been finalised so far. The workshop was attended by representatives of governments across Australia who are working in the Treaty area, and who were able to ask questions of Mr Finlayson to learn from Aotearoa New Zealand’s experiences.
Chris Finlayson’s experiences in the New Zealand Government under Prime Minister John Key are also detailed in his book, Yes Minister.
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