Treaty Settlements in Tāmaki Makaurau

Over the past few weeks, there has been quite a bit of media coverage of agreements reached in relation to the settlement of Treaty of Waitangi claims in the Auckland region.  As might be expected, the New Zealand Herald has shown particular interest in these agreements and this weekend added some useful contextual detail about the process that has led to agreement being reached.  That process has negotiated some complex issues and has at times been somewhat fraught.  All those who have worked to reach these agreements ought to be applauded for their hard work and the immense good-will that has been demonstrated.

As has been mentioned in much of the coverage of these agreements, the Waitangi Tribunal’s Tāmaki Makaurau Settlement Process Report also played a role in shaping the process of settlement negotiation in Auckland.  I thought it might be useful to revisit some of the key findings of that report in light of the recent agreements.

The 2007 Tāmaki report was the result of claims made to the Waitangi Tribunal that the process which the Crown had undertaken to negotiate the settlement of Ngāti Whātua o Ōrākei’s claims were prejudicial to other Māori groups in the Auckland region.

A key theme of the Tribunal’s Tāmaki report is the importance of whanaungatanga (relationships).  The report begins by explaining the connection between whanaungatanga the Treaty guarantee of tino rangatiratanga and notes:

One of the most devastating consequences of the failure to give effect to the guarantee of te tino rangatiratanga has been the breakdown of Māori social structures  –  the structures that created and expressed whanaungatanga.

The Tribunal considered that, in achieving an agreement in principle with Ngāti Whātua o Ōrākei, the Crown had jeopardized relationships between other tangata whenua groups and the Crown, and between other tangata whenua groups and Ngāti Whātua o Ōrākei. This was despite previous reports where the Tribunal had addressed similar issues and expressed serious concerns about the Crown’s Treaty settlement process, even though, in those cases, the Tribunal had ultimately determined that it would be unfair to the groups in negotiation with the Crown to halt their settlements.

In the Tāmaki report, the Tribunal found that the Office of Treaty Settlements had misconceived its task by: focusing exclusively on its relationship with Ngāti Whātua o Ōrākei at the expense of other relationships; casting other tangata whenua groups in the role of only ‘interested parties’, and; viewing Treaty negotiations as analogous to any other commercial negotiation, rather than being a negotiation that is “quintessentially about restoring damaged relationships”.  The Tribunal further suggested that the Crown’s lack of engagement with other tangata whenua groups was contrary to tikanga Māori, yet the need for officials “to be aware of, and comply with, tikanga Māori in their dealings with Māori is another aspect of partnership under the Treaty”.

Though it was not only the Crown’s settlement process that was problematic.  The Tribunal expressed concern about the substance of the proposed settlement as well.  There are many examples of this that are cited in the report, but to take just one, the Tribunal noted:

The question that the Office of Treaty Settlements posed itself in order to decide whether to grant exclusive redress to Ngāti Whātua o Ōrākei with respect to maunga was whether Ngāti Whātua o Ōrākei’s were the predominant interests in the maunga. We think this is often the wrong question where cultural redress is concerned, but always the wrong question where there are multiple interests in maunga. That is because maunga are iconic landscape features for Māori. They are iconic not because of their scenic attributes, but because they represent an enduring symbolic connection between tangata whenua groups and distinctive land forms. Sometimes, these land forms are the physical embodiment of tūpuna.  Thus, associations with maunga are imbued with mana and wairua that occupy the spiritual as well as the terrestrial realm.  Maunga express a group’s mana and identity.

The recent settlement agreements suggest that the Crown have taken on board many of the Tribunals findings and recommendations relating to the process and the substance of Treaty settlements in Auckland.  But it is worth recalling the Tāmaki report because it is a reminder both that a narrow focus on achieving speedy settlement agreements can damage the wider project of reconciliation, and that the Waitangi Tribunal continues to play a crucial role in that project of reconciliation.

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