The Green Party’s plans for public and private lands

The Green Party wants to facilitate the transfer of more public (or “Crown”) and private land to iwi, hapū, and whānau.  The intent is to address inequities arising from Māori land loss, especially in the 19th century. 

The New Zealand Constitution Act 1986 marks the point that Parliament became sovereign and the British Crown’s role became limited to the procedural and symbolic.  “The Crown” in practical terms means all New Zealanders, or at least their elected members of Parliament.  Whatever costs “the Crown” incurs in Tiriti-related processes are paid for by New Zealanders, not by King Charles.

Crown lands might be best described as “public lands.”  Transfer of public lands to iwi and other kin-based groups can create barriers to access for those New Zealanders lacking the “right” birth-ascribed blood groups.  The result of replacing Te Urewera National Park with the Tūhoe-dominated Te Urewera entity in 2014 has so far been degraded infrastructure, loss of public access and amenities, and likely damage to biodiversity.

The Green Party proposes to empower the Waitangi Tribunal to make binding recommendations on the transfer of public lands to Māori.  It also proposes that the Tribunal be granted powers to make findings and recommendations in relation to private land.  Māori would be given a right of first refusal for private land sales, undertaken at the point of sale. 

The Green Party supports amendments to the Public Works Act to prevent Māori land being taken in future.  It also advocates ending perpetual leases on Māori land.

The Green Party’s assumption is that it is possible to establish causative relationships between 19th century events and specific Māori individuals and/or whanau living today who were impoverished by these events.  The Greens pragmatically avoid thinking about counterfactuals, or the implications of the Chinese proverb “the flapping of the wings of a butterfly can be felt on the other side of the world.” 

It is important to define what we mean by “Maori.”  Are we for example talking about race, culture or ethnicity?  Both the Electoral Act 1993 and the Te Ture Whenua Maori Act 1993 state that “‘Māori’ means a person of the Māori race of New Zealand; and includes any descendant of such a person”.  This clearly defines Māori in racial terms, however it does not specify how much Māori blood is needed for someone to be “authentically Māori”, if such a term is itself meaningful.

Tipene O’Regan is understood to be only about one sixteenth Māori, however through his Irish side he has kissed the Blarney stone.  He argued successfully that Ngāi Tahu’s generous Treaty settlements were needed to uphold property rights as a fundamental pillar of a democratic society.  Whether his persuasive powers came from his Māori or Irish sides seems irrelevant.  As Deng Xiaoping said: “It doesn’t matter if a cat is black or white, so long as it catches the mice.”

The extent to which an individual’s identity can be traced back meaningfully to a past ‘victim’ is diluted exponentially with each generation.  Everyone has two parents, four grandparents etc, and going back 30 generations everyone has more than 1 billion direct ancestors (2 to the power of 30) with some being ancestors several times over.  Three thousand generations ago all the ancestors of all humans lived in Africa as hunters and gatherers.

This means there is rapid dilution over the generations in the importance of any one ancestor to a living individual’s genetic inheritance and identity.  Within a few generations most New Zealand-born people will have some Māori blood, and the links between individuals and specific iwi and hapu will be even murkier. 

The Green Party assumes that Māori have long-term stable relationships with their land that underpin their status as tangata whenua (people of the land).  Māori exercise “mana whenua” or territorial rights over land.  These rights are validated by tikanga rather than statute law.

However, the widespread adoption of muskets in New Zealand between 1807 and 1845 destabilized the power balance between warring iwi and hapū.  Greater storable food surpluses such as potatoes made it possible for war parties to campaign for longer time periods and over greater distances.  The Musket Wars profoundly disrupted the relationships between iwi and their traditional lands.  Many permanent migrations occurred, some areas were left largely depopulated, and the death rates vastly exceeded that of the New Zealand Wars from 1845 to 1872. 

The population disruptions challenge the meaningfulness of terms such as “mana whenua” or “tangata whenua”.  For example,  Ngāti Ira’s rohe included territory south from Hikurangi and Tūpāroa, and with Ngāti Ira’s defeat Ngāti Porou took over this land.  How can the competing interests of these two iwi be adjudicated if both seek rights of first refusal over a private sale in a region? 

The Greens want a Commission of Inquiry into the full extent of land dispossession and adequacy of redress.  This Commission would be tasked with making recommendations on future pathways for return of wrongfully taken land back to iwi, hapū, and whānau.  This must surely duplicate much of the work that has already been done through Tribunal processes. 

The Greens wish to abolish the 2008 deadline to lodge new claims and evidence for historical breaches of Te Tiriti o Waitangi, allowing Māori to progress additional historical claims through the Waitangi Tribunal.

It is concerning that even more power may be vested in an unelected entity, the Waitangi Tribunal, with little evidence on how effective the Tribunal has been in enhancing Māori wellbeing.  Little thought is given to the effect that Treaty processes may be having on mindsets, on the sense of personal responsibility, and on the relative investment Māori make in education and innovation compared to relitigating historical grievances.

The right of first refusal to land the Crown wished to dispose of was granted to Ngāi Tahu in 1998.  The much more controversial Green Party proposal now is to offer Māori right of first refusal for sales of private land.

While in theory first refusal simply means that Māori be given the first opportunity to meet the vendor’s price, in reality it would lead to coercive or gaming opportunities to manipulate or override the market.  It is difficult to see how the first refusal right could be applied when land was auctioned, or when it was sold through tenders.

Many iwi, hapū and whānau have had land taken under the Public Works Act or other legislation.  Such legislation has facilitated works such as roads, railways, and energy infrastructure.  Acquisition of Māori as well as non-Māori land for such purposes began as early as the 1870s and continued thereon.  The Green Party seeks amendment to the Public Works Act to prevent further Māori land being taken in future. 

Compulsory land acquisition has led to inequities.  However, infrastructure is a powerful economic enabler.  Compulsion is needed to overcome “hold outs” impeding critical public works.  Infrastructure leads to widespread betterment, reflected for example in improved property values due to investment by people other than the property owners.

History provides us with useful insights.  Vogel (1893) argued that New Zealand’s need for railways and roads required some legal compulsion to deliver betterment.  He justified New Zealand’s Public Works Policy as a way of “opening up the means of communication through the [North] Island, and at the same time give employment to the Maoris, and make their lands really valuable.”  He argued this would “render impossible any future war on a large scale…it was infinitely preferable to spend large sums on permanent development, to expending equal, or probably larger amounts on issues of warfare”.

The case for ending perpetual leases on Māori land deserves further analysis and it may be upheld.  It is likely to be a high-cost initiative as leaseholders may seek compensation.

Overall, the Green Party’s proposals fail largely because they try to solve today’s socio-economic problems by linking the economic wellbeing of specific individuals and whanau living today to historical events up to 200 years ago.  These past events primarily relate to land ownership and the role of the Crown when New Zealand was still a British colony.  The past cannot be changed.  Those living today cannot be held responsible for past ancestral misdeeds.

The Green Party’s proposals focus on land as the most important asset for Māori, and little attention is paid to, for example, education as the most potent driver of socio-economic wellbeing. 

Low housing affordability causes intergenerational deprivation and child poverty. However, this is not solved by large scale land transfers.  The constraint is not lack of land as such but rather it is the lack of land that has regulatory approval for housing development, and the availability of infrastructure supporting these developments.  

We lack a statute of limitations governing Treaty-related disputes over property.  A limitation period would give a claimant a time period of a few years rather than decades or centuries within which legal action can be taken.  Perhaps tikanga can help us?  In Māori tikanga, land rights come from tupuna (ancestry), take raupatu (conquest) or take tuku (gifts).  Land claims were confirmed by ahikāroa (a long period of occupation.) 

Some Native Land Court and other historical processes in the 19th century inferred that absence from the land for three generations extinguished mana whenua rights.  British law and Māori tikanga would not validate the relitigation of property rights issues that occurred more than a few generations ago, and probably not even for shorter time periods.

As a package, the Green Party’s proposals would have damaging effects on behavioral incentives for Māori, and they would create new waves of grievance and conflict within New Zealand society.  This is at a time when the way forward should be enhancing human capital and fostering the generativity to support a positive rather than a zero-sum game.

References

Crosby, R. 2020: The Forgotten Wars. Why the Musket Wars matter today. Oratia Books.

Vogel, J. 1893: New Zealand: its past, present and future.  Paper read at the Imperial Institute, on December 4^th, 1893.