Right of First Refusal injustice exposed

MD and CD2

I used to think that Treaty settlements were unfair because they forced hapū and iwi to sign away the ability to make future claims. I also used to think they were unfair because they marginalised anyone who the Crown did not accept as a ‘large natural grouping’.

I started working on some settlement detail and discovered the Right of First Refusal (RFR) clause. It seemed unfair because it sounded like you had your land stolen and then waited 172 years and if it came up for sale you could buy it back at market rates. That always seemed like rough justice to me.

But then I read a letter from Tauranga/Hauraki iwi Ngāti Pukenga that said RFR meant that a block of land offered back in their draft settlement could be offered first to a charitable entity that might want to use that land. “First” means before it’s offered to tangata whenua. This provision, it turns out is in the RFR clause of every settlement. The Greens called for a briefing on the issue. We met with the Minister of Treaty Settlements. He said to us then and in writing that there is no legal or policy reason for this provision but it’s in all the settlements so cannot be changed.

So without legal or policy rationale this provision is in every settlement! Most RFR clauses are about a distant future but this development means they are a complete contradiction of their name and a bizarre example of why Treaty settlements should not enforce the ‘full and final’ concept. This process is supposed to be about justice for tangata whenua but this aspect of it is about privileging charities over hapū and iwi for no reason except the Crown decided to.

Remember where this land came from and the myriad of unjust ways of how it was stolen from tangata whenua. I am very grateful to Ngāti Pūkenga for raising this issue and very proud we have put this on the political agenda. The Māori Affairs Select Committee has agreed to review this issue and the Greens will not let this rest – in the New Year my Green MP colleague Marama Davidson and I will be pushing hard for the Government to do the right thing on this kaupapa.

The Government needs to offer to retrospectively remove this outrageous provision from the RFR clause in their settlements of iwi who have already settled. The Crown breached good faith and so it’s on them to fix this. But as an easy first step they can and should remove the provision from the Ngāti Pūkenga Claims Settlement Bill.

Too many people think the Treaty settlement process is some kind of handout when it’s actually a flawed model whereby the Crown imposes its power all over again. There have been some great creative negotiations using the process such as Te Ūrewera and Whanganui River, but RFR is not great, or creative, its actually tangata whenua being pushed to the back of the line, again!