Treaty relativity clauses

March 28th, 2012 at 7:00 am by David Farrar

The ODT reports:

After years of speculation, the Government and Ngai Tahu have confirmed a top-up clause is set to trigger, potentially pumping millions into the beleaguered South Island economy.

Both Ngai Tahu and Waikato-Tainui negotiated “insurance clauses” as part of their original settlements, entitling each iwi to a percentage of all future Treaty settlements once they exceeded $1 billion in 1994 dollar terms.

For the first time, the Government has acknowledged that amount could be reached this year, which would entitle Ngai Tahu to 16.1% and Waikato-Tainui 17% of all future Treaty settlements.

Morgan Godfrey blogs:

If one or more of the larger iwi settle this year, think Tuhoe and Ngati Tuwharetoa, the relativity clause will almost certainly be triggered. The relativity clause ensures Ngai Tahu and Tainui maintain their position relative to other iwi. It’s, as termed above, an insurance clause. 

Under the principles of the Treaty, the Crown is obligated to preserve tribal relations. In practice this means the Crown should not give an unfair advantage to one or more iwi, hence the relativity clause. The clause ensures Ngai Tahu and Tainui remain at the top of the pecking order – at least until Tuhoe and Nga Puhi settle. 

I’m surprised this story’s failed to gain more traction. When the clause is invoked, the consequences will be considerable. Many New Zealanders will resent the fact that some iwi can double dip, some tribes may resent this as well and the National government won’t want to this to stick to them. After all, it was the previous National government that negotiated the clause. 

I don’t think you can fairly call this double dipping, which I see more as coming back twice for the same claim. Any additional payment due to the relativity clauses is part of the settlement agreement.

The ODT continues:

University of Otago politics department associate professor Janine Hayward said the mechanism was “simply an insurance clause” for Ngai Tahu and Waikato-Tainui, which were among the first to negotiate settlements.

“It was a good deal for both to make sure the settlement happened, and Ngai Tahu were pretty brave getting off the blocks first,” she said.

The iwi were the only ones to have negotiated top-up clauses, which came about after the then National government signalled a $1 billion fiscal cap on total settlements.

I doubt one could have got the initial settlements without those clauses, as this was uncharted territory.  It looks like the total cost of settlements will be over $1b in 1994 terms, but even if it reaches $2b, that is not a huge amount of expenditure over a 25 year period – around $80m a year.

This Government is making rapid progress on settling the remaining historical grievances. I don’t think they will all be settled by 2014, but think they probably will be by 2017. It will be a great day when we can put them into the past. That doesn’t mean there may not be ongoing contemporary issues, but the hope is that the focus is more on the future than the past.

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27 Responses to “Treaty relativity clauses”

  1. Pete George (23,793 comments) says:

    I’m sure there will be a few grizzles about this, but it makes sense to have had a mechanism for equalising claims over such a long claim period.

    One extreme thinks Maori should get nothing and another extreme thinks they should at least have control over everything. What is happening is somewhere in the middle.

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  2. Nostalgia-NZ (5,318 comments) says:

    It was sensible to have the clause, it prevents what could be called ‘relevancy’ claims to make previously settled claims match (by an agreed measure) contemporary settlements without the need for litigation.

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  3. Richard29 (377 comments) says:

    You are right that 80mil a year is not big money in the scheme of things. Also – settlements are reparation for land or resources that were stolen or confiscated. Most settlements are in dollar terms for less than 1% of the present day value of the land or resources.

    The apology is the most important part, the payments are largely a token of good will. Most iwi are pretty gracious about accepting reparation as ‘full and final’ – if somebody took my land and then 150 years down the line offered my great, great grandchildren 1% of it’s value I don’t know that I’d call it ‘full and final reparation’.

    Still – the past is in the past and settlements a recognition of that and a commitment to move on together which I think is awesome.

    Now for the people bleating on about Maori ‘privilege’ and how unfair it is that ‘our’ tax dollars are spent on this…

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  4. Put it away (2,872 comments) says:

    Surely the relativity should go the other way? Those tribes that have had their settlements for nearly twenty years should be much better off by now if they’ve been investing the money wisely and making good use of the land…

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  5. Rob F (7 comments) says:

    It will be a great day when settlements are finalised and then perhaps Waitangi day will become more a day of national celebration. I think more work will be required to improve some of the negative demographics associated with Maori, but hopefully a focus on the future will help that process and also help heal previous wrongs.

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  6. krazykiwi (8,040 comments) says:

    Fantasy:

    After years of speculation, the Government and Ngai Tahu have confirmed a Treaty of Waitangi top-up clause is set to trigger, potentially pumping millions into the beleaguered South Island economy.

    Reality:

    It was always known that ‘full and final’ would never be full, nor would it be final. Now that the top-up clause is set to trigger, the taxpayer is certain to see millions of dollars of additional government borrowing syphoned off into Iwi trust accounts.

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  7. trout (953 comments) says:

    The settlement with Tainui was the bargain of the century. The full amount would not have bought the 300-400 houses in the valley I live in. Tainui should have taken up Eva Rickard’s suggestion and settled for a cent in the dollar on all future rates on confiscated land. But the lump sum (much of it squandered) was too enticing. The top up was a condition of settlement and is entirely legitimate.

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  8. dime (10,207 comments) says:

    awesome. this is great. money like this filters down to all maori, not just the maori elite..

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  9. Brian Smaller (3,965 comments) says:

    In a hundred years this will still be going on. We all know it in our bones. Except by then though, NZ will be more than 50% Asian and they will be the biggest voting bloc in the country and will have the power to say “Fuck Off. Enough already, it is not my problem, mate”.

    awesome. this is great. money like this filters down to all maori, not just the maori elite..

    Nice one, dime.

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  10. MT_Tinman (3,315 comments) says:

    The top up may indeed be legitimate based on the wording of the 3rd? 4th? 5th? 786th full and final settlement.

    Just another fine mess Graham and Bolger have got us into.

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  11. tom hunter (5,134 comments) says:

    I’m surprised this story’s failed to gain more traction.

    I’m not. I think many people have just given up on the idea that this process will ever come to an end, so something like this is a shrug-of-the-shoulders moment.

    This Government is making rapid progress on settling the remaining historical grievances. I don’t think they will all be settled by 2014, but think they probably will be by 2017. It will be a great day when we can put them into the past.

    Having listened to such comments for twenty years my only response is that I’ll believe it when I see it. And in any case….

    That doesn’t mean there may not be ongoing contemporary issues, but the hope is that the focus is more on the future than the past.

    The contemporary issues will look much the same: claims will be made under the “principles” but they will not be defined as settlements for past wrongs. There may even be protests, lovingly covered by TV news. More money will change hands from government to iwi and we will all move on – until the next time.

    This “process” will never end. There are too many people invested in making it continue and it will be firewalled by the cry of “racism”.

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  12. gazzmaniac (2,306 comments) says:

    And all I can think of is how greedy they are.

    Remember that the man who was the solicitor for Ngai Tahu is now a minister in government.

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  13. gazzmaniac (2,306 comments) says:

    tom hunter – is this the modern form of paying tribute?

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  14. Longknives (4,949 comments) says:

    Unlike the first three posters I am not flagellating myself raw to ease the burden of my colonial guilt…and I am certainly not cowering in shame over the fact that my ancestors came here, broke the land and made this country what it is today.
    For the record I think Treaty handouts are a rort and a fucking disgrace.
    And if anyone thinks that this ongoing ‘Gravy Train’ is going to cease in 2014 (or even 2017) I have a shiny bridge over the Waitemata Harbour that they may be interested in…

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  15. EverlastingFire (286 comments) says:

    Expensive beneficiaries those bros.

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  16. virtualmark (1,305 comments) says:

    DPF, I don’t have any major problem with the relativity clauses – I think they were a sensible commercial provision in the original settlements – but I do think you’re being overly optimistic when you say:

    I don’t think they will all be settled by 2014, but think they probably will be by 2017. It will be a great day when we can put them into the past. That doesn’t mean there may not be ongoing contemporary issues, but the hope is that the focus is more on the future than the past.

    Many iwi now have significant commercial assets. They have a good asset base to build from. They should be able to stand on their own two feet now, and invest like any other commercial operator.

    But from my dealings with iwi too many seem stuck in a mindset that their real expertise and future opportunity is to keep shaking down the taxpayer for “soft money”. Creating high-value commercial businesses is harder than leaning on the Government for sweetheart deals. Unfortunately I think we have created a setting where iwi think the skills they should be investing in is being good at bullying Government.

    You see this with iwi currently lining up to try and extort – yes extort – shareholdings in the energy SOEs at a sweetheart price. Frankly, Government needs to stand firm and say “Fuck off. If you think this is a good investment for you then buy in at the IPO.” Unfortunately, I’m not at all convinced Government will have the backbone to do that, when they are so dependent on the Maori Party for votes in the house.

    But giving in (yet again) would just reinforce the mentality that iwi’s best option is to keep touching up the Government for soft money.

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  17. Viking2 (11,666 comments) says:

    Except that we have just had a third settlement on the same bit of land in Tauranga and these settlements don’t include anything screwed out of the local ratepayers for various other bits of land or rivers or access etc. You don’t ever hear about them.

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  18. beautox (409 comments) says:

    Makes me SICK when they say “potentially pumping millions into the beleaguered South Island economy.” without mentioning where the millions are being pumped FROM… my pocket.

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  19. Fletch (6,517 comments) says:

    I tend to agree with longknives in that the whole thing is a rort. In the latest eLocal magazine is a letter from Chief Hotu Wai Ariki and a response from David Child Dennis. The whole thing is worth reading…

    Chief Hotu Wai Ariki

    What about Hawaikian, i am Hawaikian. No not Hawaiian. My great great great great great great great great great great great grandfather was King Uenuku of Hawaiki. His bloodline being extremely ancient has been kept in my Whanau for along time indeed. Should we go back to Hawaikii is what you’re saying, cause we should and claim it as well.

    But you seriously do not understand when you say Tainui should not have gotten remorse or sympathy. We Tainui had a most extensive trading empire encompassing the Pacific (Some knowledge was kept to those who could handle the ancient ways by my Tupuna) and then the Pakeha invade and STEAL ALL OUR LAND. NO THE PAKEHA THINK STEALING LAND IS JUSTIFIABLE. IT AIN’T. TAINUI TE UTU. Also the whole treaty for your information was signed by mainly the NGA PUHI, WOMEN LEADERS WHO CANT NAVIGATE FROM THE CROOK ISLES.

    We as Tainui and I as a Chief of a hapuu of Tainui, have to decide whether to keep Pakeha here or proceed with further higher laws that reign supreme over colonial Pakeha NZ laws, which is the UN laws.

    WITHDRAWING FROM THE TREATY OF WAITANGI IS THE ONLY WAY THE MAORI CAN FORGIVE THE PAKEHA, IT IS LEGAL AND POSSIBLE, LAKOTAH HAVE DONE AND SO HAVE MANY OTHER INDIGENOUS PEOPLE. IT’S NOT THE FORGIVING. IT IS THE FORGETTING THAT IS THE HARDEST.

    Also Tainui had peaceful encounters with the former first inhabitants, The Ngati Turehu, Ngati Kahupungapunga, Maeroa and Te Tini o Toi Peoples. They still exist too, (this is not kook talk, theirs things in this world that either exist or don’t, these first immigrants do still exist, such as Pirongia Maunga, Hauraki Ranges, Hauhangaroa ranges and Waitakere.) We did not kill them off. But Pakeha did KILL OFF US TAINUI, THE MORE PRIMITIVE HAWAIKIAN STOCK OF THE MAORI. It is still an act of war, the only way to gain peace under peaceful terms ” Good faith initiated between both parties ” is to withdraw from the treaty cause lets face it Maori and Pakeha are never gonna agree, so we have no other choice but to withdraw from the treaty. Ka Whawhai tonu matou! Ake! Ake! Ake!

    REPLY By David Child Dennis

    Tuhoe – A victim of misunderstanding and the grievance industry?

    Greetings to you Chief Wai etc… of the Tuhoe.

    ‘Whoever the fool was that claimed the pen is mightier than the sword, has never faced a machine-gun’. General Douglas Macarthur.

    Perhaps a little house keeping might be in order before we enter into our discussions. Calling me a ‘house flea’ (Pakeha) is probably not conducive to winning your argument, with our fellow citizens, no matter what their ethnicity. The leaky boat you have offered me can be repaired and Bligh was one of the greatest navigators in Royal Navy history, so I expect to make it back to Dublin, without too much trouble. But, joking aside, it is wisely said, ‘to insult an opponent, is to lose the argument.’ So, let us resist such a waste of time.

    We agree there are contentious issues dividing some, not all, Maori from mainstream New Zealand. Some of those issues have arisen from European wrong doing. Many have occurred through inter-tribal rivalries that pre-date the arrival of any European. Unfortunately, there is an unhealthy malaise among the academic community, who seem determined to distort information or suppress any ‘inconvenient truth’, all in the name of ‘political correctness’, not to mention over inflated ‘professional egos’. The suppression of the carbon dating results, taken from Waipoua Forest in the 1980’s, is only one of many such breaches of trust. As long as we allow the manipulation of the history of New Zealand, to suit the agenda of a privileged few, we will have no peace.

    The Land Question

    If you are prepared to search through the Land Court proceedings, beginning around 1880, you will find irrefutable proof the Crown acted above and beyond it’s powers, and duty, to try and dissuade Maori from selling their lands. Nowhere can I find a British court that has acted in such a manner to prevent what it knew would ultimately lead to disaster. It was a thankless task for the Land Court, which did the best it could with the available resources. Without doubt some of those proceedings were fraudulent. The Opou Block in Whangarei is a case in point. But, the majority were not. I would remind readers that ‘mistake’ is not ‘fraud’ because it lacks the intent to deceive.

    Much of the land, which Tuhoe now claim was wrongly confiscated, seized or alienated by the Crown, was in fact sold, some of it without tribal authority. That the land was purchased in ‘good faith’ from someone who didn’t own it, now presents us with an impossible task to untangle. While Tuhoe may demand the uncompensated eviction of the current owners, it would have unintended consequences. Mugabe embarked on this path when he seized White farmer owned lands to reward those who had supported him during the Zimbabwe civil war. In doing so, he doomed the nation to unprecedented poverty and deprivation. The next time Chief, or his followers rush a sick or injured child into the local hospital, they might like to consider this? Because, if as their representatives claim, they repudiate the Treaty, they have no right to any aid, comfort or treatment. We in turn have no obligation to provide it. Perhaps they might like to explain the actual meaning of ‘rights’, ‘privileges’ and ‘obligations’ to their fellow tribal members? Perhaps Tama Iti might be of assistance?

    Hunter-Gatherer or Farmer?

    The Maori and European views of ownership were, and remain, different. The European concept of private ownership developed when they evolved from ‘hunter – gatherer’ to farmer and established permanent settlements, over 5,000 years ago. While the Maori remained a hunter-gatherer, the European had long since abandoned such a society. The problem for a hunter-gatherer culture is it requires vast ranges of territory to sustain relatively small populations. Agricultural production, even at 1840 levels, is the only way to sustain large populations, and as a consequence, the rules of society must evolve and change.

    The modern versus hunter-gatherer economies

    While there remains some nostalgia for the relative freedom of the hunter-gatherer economy, it cannot provide a certainty of surplus. There is always a cycle of boom and bust, due mainly to unpredictable weather cycles or physical catastrophe. The modern economy, with its ability to produce and store excess production, significantly reduces the chance of failure. Around 200AD, the Roman province of Britain was faced with a failure of the grain crops. Because of the highly efficient Roman economy, excess grain from other parts of the Empire were brought into Britain, averting starvation. No hunter-gatherer society could provide such surpluses. This is what the Maori observed, in great wonder and awe, with the arrival of the first Europeans. What they didn’t appreciate was this wondrous surplus was foundationed on property rights.

    The Protestant work ethic

    Underpinning this surplus is something Europeans have come to call, ‘the Protestant work ethic’, often seen as an unwanted societal imposition by many Maori, and unfortunately, an increasing number of Europeans. This is not written as an insult, but to illustrate the deep cultural differences that exist between the two peoples. Any form of industrial production, whether it be growing food or producing machinery, in fact anything on a large scale, requires a continuity of process, as every home brewer knows! The early European settlers made the mistake of believing Maori would easily adapt to our work ethic, once they saw the benefits. Some Maori did, but others, raised as raiders, clung to their traditions of conquest, refusing to accept that change was about to be imposed on them, with the Crown enforcing private property rights, a largely foreign concept to Maori at that time. Yet, we should never forget the invaluable contribution many Maori have made, and continue to make, to the development of New Zealand, in arduous, and often dangerous, conditions.

    A question of sovereignty…

    As I have written elsewhere, it is my contention the British Government had no intention of claiming New Zealand as a colony. This was to change, when the House of Lords debated the issue in 1838, after the Church Missionary Society and the New Zealand Company, demanded a public hearing of their diametrically opposed positions. The CMS was determined to prevent, what they deemed the ‘exploitation’ of New Zealand. The New Zealand Company claimed it was essential for British interests to plan and organise a colony, which was already at an embryonic stage, before other nations did so. Many Maori leaders, seeing the abundance of European goods, and the trading opportunities these offered, welcomed the colonial traders. The leaders of the smaller Maori tribes, that had recently faced extinction in the 1830’s ‘Musket Wars’, saw the new arrivals as potential allies. Thus, the Europeans were quickly drawn into the cesspool of inter-tribal politics and cross-cultural relationships. The Church Missionary Society interference only further complicated matters. This disparate group of pastors and priests, gave assurances to their Maori converts, the Crown could not possibly honour. It was an impossible situation, brought about by a genuine misunderstanding between the two cultures. Even as the Treaty was being translated from the English language original into Maori, there were divisions of opinion as to the precise meanings of key words and phrases. Unfortunately, in the haste to deflect any French attempt at colonization, an untested text was used, which is now the foundation stone of the accursed ‘grievance industry’.

    The Church Missionary Society

    From as early as September 1814, Samuel Marsden, then a CMS missionary in Sydney, wrote to the Secretary of the Church Missionary Society, complaining of the various crimes and injustices committed against Maori in the Bay of Islands, by ships crews, escaped convicts, whalers and sealers. Some, especially those residing at Russell, felt his accusations were too extreme, although there is little doubt there was a basis of fact to them. However, it must be remembered the CMS had already determined it would oppose colonization of New Zealand, and by painting such a dire picture of European behaviour, hoped to prevent the establishment of a British Colony. This was unrealistic in view of the increasing French and American interest in the South Pacific, after the end of the Napoleonic Wars, in June 1815. William Yate, a fellow missionary, recorded that ‘Marsden’s mind was bent on effecting the welfare of this country and neither cost nor labour were spared until his purposes were fully accomplished’. The missionaries aim was to ‘civilize’ Maori before converting them to Christianity.

    James Belich comments in Making Peoples (1996)

    ‘When Ruatara died in 1815, the missionaries were bereft of their protector and naturally considered leaving New Zealand. But they were soon comforted by the other local chiefs, namely one Hongi Hika…. If Marsden was the St. Augustine of New Zealand, then Hongi was the Emperor Constantine. Christianity was one of Hongi’s business interests…’

    So… it can be clearly seen that Maori, far from being ‘ignorant savages’, quickly understood the advantages of early European contact and profited from them. It was only as the European population began to dramatically expand Maori become increasingly concerned they would soon become a minority in their own lands. Much in the way they fear Chinese migration today.

    With the arrival of more Europeans, and increasing lawlessness, by both races, Paihia became known as the ‘Hell Hole of the Pacific’. Russell, almost as disreputable, became the first unofficial capital of the colony, until supplanted by Auckland in February 1841.

    The Treaty in all its imperfection

    The Treaty of Waitangi, signed on 6th February 1840, came about through a series of social collisions and lurches within the tribal structures and between settlers that had arrived by that date. A hotly contested debate – something Maori are well known for and extremely accomplished at – raged for years prior to the signing. To assume they wandered blindly or were misled into signing the Treaty is to assume Maori were simpletons, which they were most definitely not. British Resident and vintner, James Busby, along with colleague ex- Royal Naval Sub-Lieutenant, turned missionary, Henry Williams, took great interest in the affairs of many of the Maori tribes and families in and around the Bay of Islands. Both men were dedicated apostles of peace and spent much of their time adjudicating disputes between local Maori and occasionally settlers. They firmly believed that if they could instruct Maori in the cultivation of suitable crops, thus creating a trading surplus, the risk of inter-tribal war could be significantly reduced. For a while, they succeeded.

    But it soon became clear to the chiefs and warrior classes within Maori society, their authority would quickly disappear, as the lower strata of Maori society could appeal to the British courts for justice. Customary Law, or Marae justice, as it’s often referred to, often ignored the complaints of lower caste Maori, and as far as slaves were concerned, they had no right to be heard at all. There were Maori leaders that recognised change meant progress. Even the great Te Rauparaha, the scourge of the Kapiti Coast, ended his days near Otaki, preferring to live in peace under the protection of the Crown.

    But, Chief….etc… you now want to repudiate the very thing that brought peace and progress to so many of your people, because you believe it has diminished your authority, your ‘mana ‘.On December 16th, I drove through a Tuhoe area on my way to Taupo. I could not understand what ‘mana’ there is to be had from merely existing in such grinding, self-inflicted poverty? All your misdirected pride has achieved is to inflict unnecessary privation and through that, unwanted illness and suffering, on innocent women and children, which you as a Chief, should be doing all in your power to prevent. How many lives has your self- imposed exile from the 21st century blighted?

    Is it not time to come in from the cold? All you need do is accept, as have so many before you, the old ways have vanished into the mists of time. I don’t ask that you give up being Maori, just being outcasts in your own lands.

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  20. labours a joke (442 comments) says:

    TOW and settlements. Biggest rort of all time.

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  21. mikenmild (12,319 comments) says:

    I’m not sure any of that rambling monologue showed Treaty settlements to be a ‘rort’, Fletch.

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  22. Paulus (2,707 comments) says:

    I will cheer out loud in 2014 or 2017 or if ever, assuming I am still alive then, when the Waitangi Tribunal is wound up.
    Governments will have to start saving hard for the redundancy payments which will follow, (and have to be renegotiated regularly).

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  23. Muzza M (294 comments) says:

    If the tribal elite didn’t piss-take so much, there might be a little bit more understanding from non Maori. Air waves, water, and the list goes on, and on, and on … A bit like Treaty settlements.

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  24. cha (4,132 comments) says:

    Barking Fletch, barking.

    Chief Hotu Wai Ariki

    Kia ora to one and all, Selassie greets and welcome to all . I live in Aotearoa, land of the long white cloud. I am a devout Rastafarian male, who is tolerant towards anyone who drinks or does drugs, or anything else so long as they can accept me for who i am.

    David Child-Dennis

    Speaker …David Child-Dennis

    A retired company director that has worked in many fields including insurance, finance, banking, local and central government, to name a few. “I have an abiding interest in all matters spiritual, but am not religious. Some time ago I was a member of the Canterbury UFO Group, where I used my insurance background as a sighting and contact analyst. Author of “Heresy.”

    He will be speaking on…

    • Do we live in a holographic illusion? • Time, foundation of our entire existence. • Issues of Choices- why we are here? • Issues of Addiction.

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  25. hj (7,142 comments) says:

    Tarian Turia : Tribes Treaty Claims 1.5% of what was taken. Settlements can’t be full and final.
    Nati apa Treaty Claims. Our young people have taken that settlement through and because I have particular views about settlements I’ve had to remain [“ “] or I’ll put our young people off. But they have worked constructively with our government and they’ve got about
    1.5% of what was taken. TT says “no government cant expect people settlements to be full and final if justice isn’t served.”
    http://www.radionz.co.nz/audio/national/ckpt/2008/09/05/waatea_news

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  26. wiseowl (974 comments) says:

    Just a rort. As with Longknives , my ancestors too came to this fine land and built a great country.

    It is now being dismantled.

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  27. Griff (8,419 comments) says:

    Trash the treaty and we go back to pre european state
    We one you lost here’s the hangi jump in yum yum hori for tea.

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