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.