Nick Smith, Chris Finlayson – the vexed question of undue influence?

Nick Smith, Chris Finlayson – the vexed question of undue influence?

If Nick Smith has supposedly been too close in representing a friend, what of the arguably equally relevant issue of the smart-tongued Chris Finlayson, controversial Minister of Treaty Negotiations, regarded by some as not only having presided over the settlement of some questionable treaty claims, but as having overstepped the mark of ministerial responsibility by inviting tribal leaders to bypass the courts and negotiate directly with him? 

With some of these prominent iwi leaders Finlayson will be very well acquainted, given his past history of tribal representation and personal interaction with iwi members. On such sensitive issues, when the country is long past the point when compensation should be paid for claims that are now being reinvented, elasticised and in some cases apparently provably wrong , Finlayson’s’ over-generous invitation to activist Maori iwi to come and negotiate directly with him personally may well be regarded as not only inappropriate, but, essentially shocking.

We have no reason to think that this Minister of Treaty Negotiations regards it as important to take into account the views of majority New Zealanders. His pattern is that of arrogant dismissal of opposition – as with his pejorative name-calling as “clowns” the scores of thousands of ordinary New Zealanders who opposed the Marine and Coastal Area legislation.

Finlayson is perceived, rightly or wrongly as having the bit between his teeth, running with iwi only-interests when it comes to presiding over his department, the Office of Treaty Settlements. In his pronouncements he appears, moreover, to be on close terms with and warmly receptive to iwi litigants and apparently does not regard it as important to give equal time and an equal hearing to well-informed New Zealanders trying to point out for some considerable time that today’s claims – put forward by what are essentially opportunistic if not downright greedy iwi –are being made against the interests of all other New Zealanders. At least some are essentially spurious.

The fact that Finlayson boasts that settlement processes are now speeding up gives little comfort to many New Zealanders who have no faith in his assertion that this will put a stop to the well-oiled grievance industry which has cost this country so much. In fact, the settling of so many well-contested claims has created more grievances, and arguably more injustices, many of them now directly against New Zealanders at large, continually being taxed,  for no good reason, for issues this generation had absolutely nothing to do with, and for which it not should not be held responsible.

We can lay their contribution to the continual impoverishing of this country by the now accumulatively billions being lavished on all things Maori–only at the door of both National and Labour politicians. The extraordinary lack of common sense of actual government ministers, let alone their ill- thought utopian aims,  allied to ignorance of our history  has cost this country very dearly these recent decades  – not only in economic but also in socio-political terms. Fous savant – or ignorant clever-clogs is a pretty good description of some of the lawyers in Parliament, including prominent ministers whose decision-making was seen as at the time even , as naïve, as were their extraordinarily egoistical, we-know-best certainties accompanying their forced “settlements” on the country. But then the people of a country are always in trouble when the political in-groups dictate top-down legislation and demand the right to impose directions on the country which the common sense of its people immediately recognises is problematic. The fact that there is no right of appeal, for example, against the often palpably wrong diktats of the Waitangi Tribunal with its history of tribal favouritism and ridiculous endorsements ( such as the supposed right of iwi –  to the airwaves and electromagnetic spectrum) is profoundly undemocratic. Yet our own government ministers imposed this demonstrably racist organisation on us.

From beginning to end the process of well-represented iwis’ hands deep in tax payers’ pockets has not seen any of the benefits flow  (as New Zealanders at large envisaged) to the genuinely disadvantaged part-Maoris throughout the community. The lucrative payouts have gone only to powerful tribal groups, their relatives and those of their young whose further education they have promoted and financed with a view to their eventual ongoing activism on behalf of the tribe. Little wonder that so many young part-Maori have, in their law degrees. Overwhelmingly concentrated on exploring the ways in which the Treaty of Waitangi provisions can be imaginatively reconstructed.

Labour’s former Justice Minister Geoffrey Palmer’s fanciful description of this very basic agreement signed by Maori chiefs nearly two  centuries ago as “a living document” has not helped focus radicalised minds on what it actually said – rather on what possible “new” “interpretations can be put upon it, to conjure up advantage for Maori only. Palmer is also answerable for the costly and socially disruptive confusion which his vague invoking of the “principles” of the treaty has inflicted upon the country – as much as another former lawyer, Justice Robin Cook’s equally ill-thought “something akin to a partnership”.

And now with a new activist lawyer at the helm as Minister of Treaty Negotiations, we appear to be repeating history with Chris Finlayson’s dogmatic certainties about the rightness of the path the country is being forced to take under his aggressive leadership in treaty-related areas. However it is heartening to see the residents of Auckland’s North Shore now fronting up to oppose Finlayson’s plans to sell Crown-owned navy land to local quasi-tribal groups.

In a last year’s interview with the dogged Guyon Espiner, where Finlayson blithely indicated that he was happy with iwi “coming and talking directly to the Crown”. And who is meant by “the Crown” ?

 Espiner raised the very point that concerned many New Zealanders who are by no means made so welcome by the aggressive Finlayson, when they may wish to have the same rights of direct discussion and representation. The lesson we can draw from the fact that those well informed New Zealanders objecting to the inbuilt fishhooks contained in the Coastal and Marine Area legislation, for example, were rudely dismissed as clowns, should not be lost on us.

Finlayson,  however, with his long experience in cross-examination is nothing if not adroit, and in reply to Espiner immediately endorsed the notion of transparency – in relation to the point being raised about New Zealanders’ concern at the  lofty invitation for iwi representatives to come and talk directly to him – rather than to access the courts.

However his reply that both the Maori Affairs Select Committee and Cabinet itself are safeguards against the abuse of transparency is palpably nonsense. There has been considerable unease within the National Party throughout its nationwide membership that it is far too close and too sympathetic to Maori litigants, without any genuine balancing factors – and Cabinet has taken no steps to take this concern on board.

 The composition of the Maori Affairs Select Committee in this National government’s previous term was inexcusably one-sided. Presided over by the uncouth and arrogant Tau Henare, its modus operandi shocked many of those making submissions. In relation to the Tuhoe claim for example, those appearing before the committee in order to point out that the iwi information presented to it was factually wrong encountered not only discourteous treatment but very obvious bias shown by members of the committee, many of whom apparently had warm, even inter-familial relationships with  members of the iwi putting their case.

Observers were particularly shocked at the chairman’s behaviour, and commented on his unacceptably rude and dismissive attitude to those attempting to show that the iwi’s claims were historically quite wrong, and unproven.  Furthermore, not only did chairman Henare allow no more than a ridiculous time-frame of merely two hours for the committee to consider the final record of 700 pages of submissions – but in this case as in others, Parliament was not told that the claim was only alleged- rather than proven – and rubber-stamped it either in good faith – or because once again parliamentarians were simply doing as they were told.

In the light of these facts, the Present Treaty Negotiations Minister must know his assurance that both Cabinet and the Maori Affairs Select committee give due diligence to fairly and just the weighing up the pros and cons of these claims quite simply doesn’t hold water. It is not acceptable to dismiss any well-substantiated questioning by referring to an unbalanced Select Committee those rightly concerned about the ongoing handover of valuable land, buildings, forests, conservation land –  assets that have been handed down to us from our Euro-New Zealand forbears  in many cases with no justification at all…. If one looks fairly at the real facts of history instead of the largely whitewashed and cleverly manipulated version presented to the country at large – and to Parliament in particular.

Moreover it should never be forgotten that after the 1991 signing of the Bill which handed over the highly contestable settlement to Ngai Tahu, represented by the present Treaty Negotiations Minister,  Justice Minister Doug Graham subsequently told the Maori Affairs Select Committee of the day to virtually ignore the nearly 400 submissions on the bill, as it had already been signed. So much for select committees…

 With the Maori economy now standing at $37 billion dollars, it is sobering to think that this is very largely due to what taxpayers have been forced to hand over to self-serving tribal-type groups who seem to have had  a very special relationship with various governments. Finlayson, in his role as minister inviting iwi to talk directly with him,  sets up a relationship which many New Zealanders would regard as either being –  or having the potential to be –  highly questionable –  antipathetic to even treatment and fair, democratic outcomes. It is not hard to maintain that for obvious reasons, given its one-sided composition and strong interpersonal relationships, the Maori Affairs Select Committee – for all Chris Finlayson’s glib pie- in-the-sky – is the last body which should be left to adjudicate on these matters.

Moreover, the ground constantly shifts when it comes to political and ministerial promises. The original undertaking that foreshore and seabed so-called “customary rights”  – which were never in fact historical property rights, for all the fact that they are presently being represented as very close to this – were originally going to apply only to tribes which could prove exclusive use and occupation has long gone. Unless we are living in Alice in Wonderland territory where words can mean whatever the government, the minister or a neo-tribal group seeking special privileges wants them to mean, exclusive means just that. It is highly improbable that any iwi could claim exclusive – meaning just that – the use and occupation of Crown-owned beaches let alone marine coastal area territory right out to sea…

Apparently we can forget about the word exclusive – Finlayson now envisages iwi ending up with customary rights over about 10% of the coastline, but cannot of course guarantee “only” this amount. His original “exclusive” qualification obviously need challenging – as does his adroit wordiness when the question of the real fishhooks involved in certain only New Zealanders, because of a part-Maori inheritance, being granted superior rights over beaches, shore land and seabed to 200 nautical miles – including a right to veto and even the right to charge others wanting to make use of the coastal and concerned.

This is a disgraceful state of affairs. And at a time when the media have indicted Nick Smith for making a representation concerning the case of a friend, or former friend, to his own department, it would seem high time that the question of how much the Minister of Treaty Negotiations controls his own department, rather than allowing them to judiciously consider all representations, is well overdue to be asked. It does not seem unreasonable to ask the Minister what his personal relationship has been, or is, in relation to claimants whom he invites to come and deal directly with him, rather than bothering to go to the courts.

In well-informed quarters it is recognised that the reason that the Ngai Tahu tribe won  the settlement did, signed by the vote-seeking Jim Bolger and Doug Graham in the early 90s, in the face of a great deal of highly substantial evidence that the tribe’s  claim was opportunistic, factually incorrect, and in fact untruthful in relation to certain of its aspects, was due to its representation by the present Minister Chris Finlayson, who admitted he was highly enthusiastic at the prospect of taking on the  Crown lawyers. That he succeeded, in spite of the previous Maori Affairs Select Committee having rejected the same claim for good reason, was later recognised as being in large part due to the fact that the Crown lawyers were not only kneecapped by being told by Ngai Tahu that the latter would not agree to be cross-examined (stating, risibly enough, that “Confrontation is not the Maori way…”but was also due to their simple inadequacy. Their later acknowledgement was that they did not have the right people with the right degrees, the historical knowledge and background to properly examine Ngai Tahu’s assertions – and in many cases, incredibly enough, they simply relied upon what Ngai Tahu told them. The result was a foregone conclusion. Little wonder that well-respected media commentator Brian Priestley, summing up the proceedings as a virtual kangaroo court,  said  that he had never seen a body less designed to get to the truth of things.

New Zealand is looking very foolish in the eyes of the world because of the way majority New Zealanders have for so long been essentially blackmailed into accepting what are basically not only untenable, but in fact ridiculously exaggerated provisions of the Treaty of Waitangi. Not only is this very basic treaty not valid in international law, but it was merely a way of laying down the essential underpinning of  equality for all under the British Crown with the guarantee of individual property rights for both Maori and European. It was simply a blueprint for the claim of British sovereignty over all of New Zealand.

It was therefore a pact, as commentator David Round has pointed out, not a valid treaty, let alone a contract. And arguably it is well past its use-by date.

All the confusion over which version of the treaty is the valid one has been quite deliberately fostered by radicalised Maori activists who have sought to gain advantage by doing so. They have been aided by liberal-minded politicians, in some cases simply misguided and ignorant, as well as those quite cynically working to promote their own and their parties’ advantage. All the existing versions simply meant essentially the same thing… The British Queen obtained sovereignty over New Zealand and all its people became subjects of the Crown.

How far can Parliament be trusted today in relation to these issues is a matter of grave concern. The answer is that the dice are now well and truly loaded against majority New Zealanders in favour of belligerent, pressurising, even arguably untruthful part-Maori litigants as can be seen in the desperately sad case of the Titford family being forced off their  land  – with the knowledge of government ministers  including former negotiations Minister of Justice and Treaty Negotiations Minister at the time,  Doug Graham – and spite of the government’s undertaking that no private land would be taken for treaty settlements.

Those still inclined to give any government the benefit of the doubt should familiarise themselves with the Titford’s story – bracing themselves to be shocked.

The present Minister of Treaty Negotiations is widely perceived as basically wielding all-controlling authority over his own department, announcing proposed settlements from where the non-Maori public has been totally excluded from input – as with the now forthcoming land grab for the Navy-occupied Auckland North Shore land.

There is a very good case to be made that the dominant influence exerted by a minister given charge of treaty affairs, with a perceivably less than rigorous attitude towards activist-Maori claims (many very probably highly contestable)  may be doing far more damage to this country  – given the billions poured into claims to date , and the growing majority resentment  –   than Nick Smith’s semi-open advocacy for a friend.

© Amy Brooke