Alternative Briefing to Incoming Minister – Vote Treaty Negotiations


As the Minister for Treaty of Waitangi Negotiations you are responsible for Vote Treaty Negotiations and oversee the work of the Office of Treaty Settlements.

Purpose of this alternative briefing

Following the 2014 general election you received a briefing from the Ministry of Justice that explained the role and structure of the Office of Treaty Settlements, its place in the wider Ministry of Justice, your role and responsibilities as Minister and the current negotiations work programme. It was intended to provide a starting point for further discussions about your priorities, expectations and opportunities in the Treaty negotiations portfolio and current issues you should be aware of especially in the context of the Office of Treaty Settlements’ reducing baseline. One of the issues identified in the official briefing was described as ‘Iwi “willingness” and capability’. The official briefing notes:

Those groups that do not fit as being “willing” and “able” may have resources moved away from their negotiations to those where achieving settlement is more likely.

The Office of Treaty Settlements also expects there will be some challenging settlement negotiations to come with claimant groups with whom we will never achieve settlements under the current policy settings. The “willing” and “able” test will mitigate the risk of devoting a large amount of time and resources to these groups.

This alternative briefing suggests a different approach.

Risks and Issues

As part of negotiations planning, the Office of Treaty Settlements identifies and plans strategies to mitigate risk in negotiations.  We have identified the following risks and issues that need to be addressed or mitigated against at an Office-wide level.

Willingness and capability

Treaty settlements are the product of intensive negotiations between two parties. Recognising the strengths and weaknesses, capability and capacity of both parties is vital when planning a realistic negotiations work programme. To ensure future resources are allocated effectively in developing durable settlements and that the Crown meets its obligations as a Treaty partner to engage in good faith negotiations, the Crown must support Māori to address obstacles to settlement.

The Crown must show that it is willing to engage in good faith negotiations with claimant groups. That is, the Crown must take actions and make decisions that demonstrate that it is prepared to negotiate and settle in line with Treaty principles and in accordance with a process agreed with each claimant group. This will likely mean departing from unilaterally imposed policy parameters i.e. full, final and comprehensive settlements that are quantum-bound. Fortunately, this is entirely within the Crown’s control.

The Office of Treaty Settlements will not be able to meet deadlines and deliver on the work required to progress negotiations if it is not prepared to adjust aspects of its policy parameters and ensure that it commits resources to engaging in negotiations in line with claimant groups’ good faith expectations and aspirations.

As a result of past Treaty breaches by the Crown, many claimant groups’ ability to engage in settlement negotiations may also be constrained. Often, the ability of claimant groups to make progress towards settlement will arise because relationships within the claimant community have been damaged by matters such as historic land alienations that have separated kin groups and Native Land Court processes that have incentivised individualistic behaviour. The current policy-settings place significant strains on internal relationships and exacerbate divisions within communities. The Crown has a responsibility to provide the support required by claimant communities that will enable progress towards just and durable settlements.

The Office of Treaty Settlements must make principled decisions about its priorities and the efficient use of resources. If claimant groups are not prepared to engage in good faith negotiations with the Crown, then those groups cannot expect the Office of Treaty Settlements to prioritise their negotiations. However, the overriding obligation of the Crown is to ensure that the Office of Treaty Settlements is itself engaging in good faith negotiations. As noted above, this may require adjusting settlement policy parameters and taking responsibility for supporting claimant groups to heal divisions that the Crown has played a role in creating.

He Whakaputanga me te Tiriti – The Declaration and the Treaty

Just over a week ago, the Waitangi Tribunal released its report on stage one of the Wai 1040: Te Paparahi o te Raki inquiry covering claims in the Northland region. This stage one report is titled He Whakaputanga me te Tiriti – The Declaration and the Treaty and focuses on the meaning and effect of the Māori language texts of He Whakaputanga o te Rangatiratanga o Nu Tireni and Te Tiriti or Waitangi alongside their English language counterparts – the Declaration of Independence and the Treaty of Waitangi. The central finding made by the Tribunal, which has been widely reported in the media, is that the rangatira who signed the Treaty of Waitangi in February 1840 did not cede their sovereignty in doing so. However, the Tribunal makes it clear that this report on the first stage of the inquiry does not contain findings in respect of claims or draw any conclusions about the sovereignty the Crown exercises today or how the treaty relationship should operate in a modern context.

Bryce Edwards provides a survey of the commentary on the Tribunal’s report here. For my money, the most helpful commentary to date has been provided by Andrew Geddis.

I don’t think that the Tribunal’s basic findings are as earth-shattering as they have been portrayed in the media. But the Tribunal’s report is important. The special significance of He Whakaputanga in the North was one reason why the Tribunal was required to squarely confront these issues and produce a thorough analysis of evidence about the Treaty’s meaning and effect in 1840. In coming to its conclusions, the Tribunal considered, amongst other things, statements from previous Tribunal reports about the effect of the Treaty. There is considerable variation amongst those earlier reports as to whether or not sovereignty was ceded via the Treaty. In this report, the Tribunal gives particular emphasis to the Report on the Orakei Claim (1987) and the Muriwhenua Land Report (1997). The Orakei Tribunal took the view that the text of the Treaty would not have conveyed the cession of the English concept of sovereignty, but that contemporary statements by Māori suggested that Māori accepted “the Crown’s higher authority”. The Muriwhenua Land Tribunal considered that, while the British might have assumed they had obtained sovereignty through the Treaty, the guarantee of tino rangatiratanga meant that the Māori perspective would have been quite different. Consequently, the Muriwhenua Land Tribunal thought that the best way to understand the Treaty is an expression of the parties’ “honest intention that Maori and Pakeha relationships would be based on mutual respect and the protection of each other”.

Alongside earlier Tribunal reports, relevant court rulings, and existing scholarship relating to the Treaty, the Tribunal also heard evidence from claimants and a number of eminent historians. The Tribunal’s summary of the claimant evidence noted:

The claimants had some differing views, as one would expect from representatives of different hapū and tūpuna, but generally held fast to certain key tenets. Foremost among these was that they did not cede mana, as well as the importance of the oral agreements made at Waitangi and elsewhere. The claimants’ evidence ranged from the technical, such as [Pat] Hohepa’s expert analysis of the grammar of te Tiriti, to traditions handed down on the nature of prophecies and reasons why certain tūpuna had or had not signed. [Rima] Edwards’s kōrero about te tiriti tuatahi was perhaps the most striking aspect of the claimant evidence, suggesting Māori had rebuffed an explicit attempt to have them cede their mana.

There were also a range of views expressed in the evidence from historians. Dame Anne Salmond dismissed the possibility of the rangatira having ceded sovereignty to the Crown, arguing that kāwanatanga would have been understood as ‘a subordinate and delegated power’. Alan Ward identified points of mutual understanding in the Treaty as being:

  • the Crown would keep out the French;
  • the Crown would control land transactions;
  • some rangatira shared the Crown’s understanding of pre-emption;
  • a ‘common understanding that the customary authority of rangatira among their own people would be recognised, at least for the immediate future and that the Governor and his officials would work with them rather than unilaterally impose their authority’ (with this being understood most strongly by Christianised Māori);
  • Māori and Pākeha would have the same rights under the law; and
  • ‘a common understanding that Kawanatanga would be exercised in good faith, for the common good, including that of Māori. This was the moral dimension of the Treaty, or “the spirit of the Treaty” as we say today’.

Don Loveridge thought that the rangatira would have understood that they would become subject to a higher authority and to British law. Paul McHugh described the treaty signing as part of ‘the process by which Māori agreement to British sovereignty over New Zealand was obtained’.

After assessing the range of evidence presented in the inquiry, the Tribunal stated:

We think it likely that the rangatira viewed their agreement with Hobson at Waitangi as a kind of strategic alliance. It followed on from and extended the alliance that they saw as dating back at least to 1820, and which had been advanced since then by important developments in the 1830s. . . They had chosen a powerful ally, with what they considered good reason. At the same time, they would have regarded the relationship as subject to further and ongoing negotiation as the two peoples came increasingly into everyday contact.

The Tribunal suggests that the British view of the Treaty and the cession of sovereignty would essentially have been that described in Paul McHugh’s evidence:

Technically, in terms of British constitutional law, the issue of the Proclamations [21 May 1840] amounted to the ‘moment’ of British sovereignty, at least for the purposes of British and colonial courts. Strictly, it amounted to the formal and authoritative announcement by the Crown that the prerequisite it had set itself before such annexation could occur – Maori consent – had in its estimation been satisfied and that the Crown could now exert sovereign authority over all the inhabitants of the New Zealand islands.

The Tribunal noted the divergence of British understanding from that of the rangatira but concludes, as the Muriwhenua Land Tribunal before it had done, that there was an agreement reached in the Treaty. This agreement, the Tribunal says, can be discerned from the Māori text, which mirrors the oral agreement and the explanation to the rangatira of Hobson’s assurances. Ultimately, the Tribunal finds:

Our essential conclusion, therefore, is that the rangatira did not cede their sovereignty in February 1840; that is, they did not cede their authority to make and enforce law over their own people and within their territories. Rather, they agreed to share power and authority with the Governor. They and Hobson were to be equal, although of course they had different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis.

Fundamentally, this is (at least in part) what we might hope that the whole Treaty claims and settlement process is about – negotiating (and often fixing up) the relationship between Māori and the Crown and figuring out how to give expression to kawanatanga and tino rangatiratanga in specific circumstances. It will be interesting to see how the Waitangi Tribunal goes on to address those issues in the next stage of the Te Paparahi o te Raki inquiry.

World Conference on Indigenous Peoples

In September, I attended the UN World Conference on Indigenous Peoples in New York.

Technically, this was not a true World Conference, but rather a High Level Plenary Meeting of the General Assembly. Although this might sound like a small procedural point, it actually had significant implications for matters such as the way in which the conference programme was developed and who was able to participate. The overall effect was that the conference was more tightly controlled by the General Assembly (i.e. states) than it would have been if it was a true World Conference.

Nevertheless, Indigenous Peoples from around the world took the opportunity to engage states and the UN on important issues relating to the protection and promotion of Indigenous Peoples’ rights.

A key part of the conference was the adoption by the General Assembly of an outcome document that is designed to be a formal commitment by the General Assembly to develop mechanisms for the practical implementation of the rights of Indigenous Peoples. To my mind, some of the most important provisions in the outcome document are the directions that the General Assembly has given to the Secretary-General to develop a system-wide plan for achieving the objectives of the UN Declaration on the Rights of Indigenous Peoples. The Outcome Document also includes provisions aimed at other parts of the UN system, such as the Human Rights Council, as well as recognition of the important contribution that comes from Indigenous Peoples’ full participation in all aspects of public life.

Further details about the issues addressed are available in the report on the conference proceedings from the Aotearoa delegates who participated as part of the Pacific caucus at the World Conference (see Report UN WCIP 24sep14_final )