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1. Te Tiriti o Waitangi – Rights and Impacts upon Settlements

Rights under the Treaty were affirmed and significant concerns were expressed about the impacts of the ETS on the value of past settlements or current Treaty negotiations, and the issue of ‘good faith’ negotiations.

1.1 Treaty Rights

Papawai Marae in Greytown is the location of the first parliament, Te Kotahitanga. At the Papawai hui it was said that:

… there are no rights in carbon, but there are rights in Tane Mahuta, and in Ranginui that puts this issue squarely within the Treaty of Waitangi. We (all) have trampled on Tane, and that is the source of many of our problems.

(Paora Ammunson, Papawai Hui)

Some Māori, however, believe that there is a Treaty right with respect to carbon in the trees:

The Treaty right issue that has been raised is an important issue. There is an assumption that the Crown has the right to allocate these resources – carbon credits.

When the fisheries dispute arose, the Crown was making fish into a commodity and then allocating it on the assumption that they owned it. This was challenged and we know the result.

(Kathy Ertel, Iwi Leaders National Climate Change Hui, Te Whanganui a Tara)

The government has demonstrated how it is selective in listening to its Treaty partner and honouring treaty obligations, or indigenous rights. Māori are continuing to be marginalised and we are now going to be at further risk on a global basis. In regards to the little paragraph here on the Treaty [in the Māori fact sheet] it states that the Government does not recognise a Treaty right. I completely disagree and, as kaitiaki and under kaitiakitanga, we should have a greater role and right of participation than what is currently being undertaken.

(Maever Moeau, Tūranga Nui ā Kiwa Hui)

1.2 Negotiations in ‘good faith’?

Significant concerns were expressed about the impacts of the ETS on the value of past settlements or on current Treaty settlement negotiations. There were concerns that past Treaty settlement negotiations took place in ‘good faith’ yet no mention had been made to claimants of the possible impacts of the government’s commitments under the Kyoto Protocol, which must have been in the government’s contemplation at the time. Some iwi indicated a desire to talk directly with the relevant ministries to address these concerns.

On 6 Februrary 1999, the Crown stood on our marae and apologised to Ngāi Tahu and acknowledged that they had not acted in good faith. We have read and are very au fait with the papers that will be presented today and again note the Crown has not acted in good faith.

(Mark Solomon, Christchurch Hui)

1.3 Impact of ETS on value of past settlement land holdings

The ETS was asserted as undermining the value of past Treaty settlements because of the impact on land use, particularly where land had been settled on the ‘best-use’ value regardless of the land use at the time of settlement. For example some iwi such as Ngāi Tahu noted they had settled for ownership in lands currently under forest; however, now liabilities were to be applied in the event of deforestation they penalised the land owner, and this was a point not considered at the time of settling Treaty claims. Without carbon emissions liabilities, replanting in forestry may not be the best economic use of the land by the land owner. However, once carbon emissions are factored in, the economic best use of the land may change from that which was considered ‘best’ at the time of settlement.

The big issue here for Māori is that land values continue to appreciate but the relativity clauses with respect to quantum have remained the same. The ability for Māori to purchase Crown Forest Land is being degraded. There is also the issue of the mechanisms by which the ETS and associated carbon credits are included in the overall value of the settlement. This is the creation of a new currency for New Zealand, a currency that was not around when the first Treaty Settlements were concluded.

(Roger Pikia, Tainui Hui)

The uniqueness of those Iwi who have settled and the unique impacts on their ability to develop by deforestation was continually highlighted:

There is inconsistency from the government officials for those [iwi] who have settled.

Ngāti Awa paid full value for the forest – but the ETS diminishes both our value and our future opportunity.

The flip side to the officials’ argument is that you can’t value lands at a high price (ie, those who have settled) and then pay them pitifully (in New Zealand Units) for their loss of value and opportunity.

For forest lands, better used for other high-return purposes, it will be difficult if not impossible for Māori to deforest. This is the case for Ngāti Awa and also Ngāi Tahu.

We need to be strategic to ensure that we can embrace those situations like Ngāti Awa and Ngāi Tahu.

(Paul Quinn, Iwi Leaders National Climate Change Hui, Whanganui a Tara)

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