When history is on trial

By Chris Barton

Rachel Houlbrooke sits, back to the wall, between two colleagues, head down, taking notes. Listening intently, she doesn't look up much - except at the opening of each day during the mihi and karakia when she has her eyes closed. She seems to be praying.

Perhaps she needs all the help she can get. Here, at the Tamaki Makau Rau urgent inquiry, held in Auckland this week, Houlbrooke is under the gun. The manager of the policy, strategy and legal team at the Office of Treaty Settlements (OTS) is being challenged about a proposed $90 million cash and land deal with Ngati Whatua o Orakei to redress Crown wrongs of the past suffered by the Auckland iwi.

There are six challengers - from Marutuahau and Hauraki iwi including Ngati Paoa, and from Ngati Te Ata, Ngai Tai, Te Kawerau A Maki and Te Taou. All say, in one form or another, the Crown deal, unfairly and forever, prejudices their own Treaty of Waitangi claims in the Auckland region. All tell a different story from Ngati Whatua about their relationship to the land.

What's on trial here is why the Crown chose just one story and why other histories of Tamaki Makau Rau are not being heard. History itself - or rather the process by which it is constructed - is on trial.

The inquiry is under the auspices of the Waitangi Tribunal which has been called in - originally by Te Taou, and later by the other tribes - as a last ditch attempt to stop the "juggernaut" that is OTS from signing with Ngati Whatua o Orakei.

The tribunal can't actually stop the deal going ahead. But it can make recommendations about the process the Crown has followed in its dealings with Ngati Whatua and what are variously called overlapping or cross-claimants. The battle for Auckland which has been waged over three centuries is now being fought by a phalanx of lawyers in a makeshift court in an Auckland hotel.

Houlbrooke and colleagues like Jay Eden, a young historian whose memos appear to have played a key role in deciding to settle with Ngati Whatua at the expense of the others, are the hidden face of OTS. It's clear they're uncomfortable about being forced into the limelight. But they also show a steely resolve. When Houlbrooke takes the stand on the third day of the four-day hearing to face cross-examination by the challengers' lawyers, she's calm and unruffled.

Her tactics are simple, but effective. She answers questions very slowly - pausing to locate and then read the relevant documents in the vast paper trail. On critical questions she is evasive. Rather than yes she says: "I believe so", or "I believe that is the case". At first the lawyers are respectful, but it soon becomes clear extracting any answer from Houlbrooke is like pulling teeth. The lawyers begin to lose patience.

"That's not answering the question," and "I'll take that as a yes," says a frustrated Stephen Clark representing Te Kawerau a Maki. "Sorry, are you still thinking or ... " says Paul Majurey representing Marutuahau after a long silence. After more than four hours only three lawyers have cross-examined Houlbrooke and all have barely scratched the surface. At the end of the third day the lawyers ask for an in-chambers conference with tribunal Judge Carrie Wainwright. But while more time is allocated for cross-examination, there is more of the same on the fourth and last day.

While the lawyers appear to make little progress, a litany of seemingly unfair practices by OTS emerges. All claimants question why they haven't been informed of various critical issues in the negotiations. All talk about letters going unanswered for sometimes years. There's disquiet too about how Ngati Whatua has been able to get funding - for tens of thousands of dollars for research and other costs in establishing a mandate for its claim - while the other tribes have not. Worse still, as Kathy Ertel, representing Ngati Te Ata, points out, OTS doesn't communicate to the tribe that it won't get funding. While Ngati Whatua sees correspondence between OTS and overlapping claimants, the claimants don't see correspondence with Ngati Whatua.

At times Houlbrooke admits to oversight on OTS' part in not supplying information but mostly she sticks to a script.

OTS has conducted a fair process. The process is ongoing - a final deed of settlement with Ngati Whatua is yet to be signed. Consultation with overlapping claimants is occurring. And OTS is open to changing its agreement in principle with Ngati Whatua on the basis of what other claimants say.

While OTS contends it's done everything by the book, it's clear the urgent inquiry has flushed out information that's less than flattering. Internal memos by OTS historian Jay Eden indicate a relatively inexperienced staff member has played a key role in deciding that overlapping claims will not affect the Ngati Whatua settlement. Other previously unrevealed research has also emerged.

The lack of access to the historical research used by OTS - both in reaching its decision to negotiate directly with Ngati Whatua and in establishing the Agreed Historical Account that forms the basis of its redress deal - is a bone of contention.

How, the claimants argue, can they possibly know what they're up against without access to the research that forms the basis of the grievance? For several years OTS withheld its historical research, citing confidentiality in its negotiations with Ngati Whatua. An Official Information Act request to get at the history was also turned down by the Ombudsman. Who knew history could be so commercially sensitive?

As it turns out OTS' reasons for not releasing the research were less than truthful.

Majurey: In the words of Sir Hugh Kawharu: "OTS saying they were not allowed to produce historical documents as they had been advised by Ngati Whatua not to is nonsense - in the sense that Ngati Whatua do not control OTS or the Crown."

Houlbrooke: My clear understanding was as the [Ngati Whatua] Trust Board asked not to release those documents - that it would undermine the negotiations.

Majurey: Which part of the word nonsense is hard to understand?

Houlbrooke: I've no comment to make in regard to that.

Majurey: Yes, I thought you might say that.

Now that the history has been released it is becoming apparent that at best the history is incomplete - especially in terms of other tribes' occupation of Auckland. At worst it's a fabrication designed to fit the story Ngati Whatua wants told. What is clear is that while the tribunal has explicitly stated it can look only at process matters, and not at substantive issues of history or whakapapa, the history of Tamaki Makau Rau is very much to the fore. History and historians are, indeed, on trial.

Leading the call for better scholarship is Massey University associate professor of history Michael Belgrave. "Errors, inconsistencies and poor use of historical sources in the Agreed Historical Account led us to the suspicion that the process had significant, even fatal, deficiencies," Belgrave and colleague Dr Grant Young said in their evidence.

The pair were commissioned by Marutuahau and Hauraki iwi to write a history of those tribes' occupation of Auckland. Their story is markedly different from Ngati Whatua showing no dominant tribe in Auckland pre and post 1840. Rather there were several tribes - each with different relationships to the land of the central isthmus.

Belgrave told the tribunal what was missing from the Crown documents now released was a clear outline of the principles by which the Crown would act. "You need to have a much more rigorous process for working out how custom should be recognised, and in particular how it should be denied," he replies to Crown lawyer Peter Andrew. He describes the present process as the Crown receiving any information given to it, but with the fore-boding that much of it was going into a black hole.

"In this process you feel as if you're standing in front of a juggernaut that's going at 120 miles per hour, trying to wave a red flag."

Belgrave's contentions are supported by Graeme Murdoch who has specialised in the history of Te Kawerau a Maki. He tells the tribunal the sources consulted by the Crown are heavily weighted to secondary sources and heavily reliant on Pakeha interpretations of the Maori history of the region.

"The Crown should have made greater use of primary material, and especially Maori material, in determining customary rights and associations pertaining to the proposed cultural redress properties in particular."

Many of those affected talk about how the Crown process has caused tension between tribes. "I despise being called a cross-claimant," says Te Warena Taua of Ngai Tai and Te Kawerau a Maki. "I despise being pitted against my own whanaunga [kin]. I too was bought up at Orakei off an on."

He says the Agreed Historical Account is heavily flawed. "Ngati Whatua is not the dominant hapu. Step outside the Orakei block and you're into shared interests."

Te Taou also challenge the accepted history although the tribe's role in the hearing is largely from the sideline, because Judge Wainwright has previously ruled their argument about whakapapa (lineage) was beyond the expertise and jurisdiction of the tribunal. Who is right? Clearly it depends on your point of view.

Defending the Ngati Whatua position is eminent lawyer and historian David Williams who admits his participation in protests by Ngati Whatua at Bastion Point mean he's not an impartial witness. He says Ngati Whatua wanted to acknowledge its whanaungatanga links with other Auckland tribes in its Agreed Historical Account, but that wasn't the purpose of the document.

"They were under the misconception we were writing a history of Auckland and we were seeking to tell other people's stories - which we weren't and we didn't."

Williams says the release of withheld historical research such as that done by historian Bruce Stirling wouldn't have made any difference.

"It would have been seen to be a Ngati Whatua commissioned piece of research that happily sustained the Ngati Whatua position - as most researchers who work in the Waitangi Tribunal happily do for their clients. It's one of the reasons why I left the business."

Judge Wainwright asks Williams: "How can the Crown know whether the Agreed Historical Account ought to be agreed, unless they can understand the interests of others as fully as they understand the interests of Ngati Whatua o Orakei?"

Williams argues that the Crown's offer to Ngati Whatua is so modest that there are plenty of "crumbs" to go and offer to others. He says he agrees with Belgrave and Young that all concerns should be fully discussed and detailed before negotiations, but only if the redress was full and fair compensation. Williams says if Tribunal hearings were genuinely truth and reconciliation hearings it would be possible for Maori to operate in a less adversarial way.

"But we are talking about very modest redress in practical terms. I don't think it's fair. I know so many kaumatua who have died since I started working with them and they didn't see a settlement come. I know the mokopuna are still going to be waiting if we lawyers and historians keep arguing and the tribunal stops the process and tells us to start again. I grieve for the mokopuna and those who have already died."

Disquiet abounds in the hearing. "I want to know how much Ngati Whatua has been provided in the context of this process, when Ngati te Ata gets nothing," says lawyer Kathy Ertel. She attempts to add up the dollars of previous settlements with Ngati Whatua including the tribe's option to purchase former Railways land at a discount. She gets to $71.8 million, a figure that the Crown will neither confirm nor deny.

Towards the end of the fourth day Judge Wainwright asks Houlbrooke how society can benefit from a process that leaves claimants insulted and disregarded. Houlbrooke rejects the assertion saying discussions with various groups have been constructive.

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