Whakatōhea Mandate Report

On 17 April, the Waitangi Tribunal released the pre-publication version of The Whakatohea Mandate Report. 

I wrote a brief comment on some aspects of the Tribunal’s findings that originally appeared on the Radio New Zealand website 0n 18 April 2018:

If the Crown is going to get its Treaty negotiations right, it needs to seriously engage with tikanga Māori and Māori legal traditions in the settlement process.

Yesterday, the Waitangi Tribunal released the Whakatōhea Mandate Inquiry Report. In this report, the Tribunal determined that the Crown had indeed breached Treaty principles in its settlement negotiations with Whakatōhea, in particular, finding that the Crown’s recognition of mandate “was not fair, reasonable, and made in good faith”.

This is not the first time that Crown policy and practice relating to the recognition of a mandate to negotiate the settlement of historical Treaty claims has been challenged.

Mandating is an important part of the Treaty settlement process. It is vital that those who say they have the authority to negotiate the settlement of the historical claims of their community do, in fact, hold that mandate from their people. The Crown acknowledges this and has established processes for determining whether or not to recognise the mandate of a group seeking to enter into negotiations. So, why is the Crown still doing things here which are not fair, reasonable, or undertaken in good faith?

This particular issue relating to mandate stems from a broader flaw in the Crown’s approach to Treaty settlements, that is, a failure to properly engage with Māori legal traditions in this process. In the Whakatōhea Mandate Inquiry Report, the Tribunal identified one of the problems with the Crown’s approach was that there was insufficient weight placed upon the objections of a number of smaller hapū. Despite the fact that there were well-known and long-standing differences of opinion about settlement negotiations within Whakatōhea, and that the hapū of Whakatōhea had explicitly stated that the process for settling their claims needed to be driven by hapū, the Crown chose to look at the support of individual members rather than the support (or otherwise) of the various hapū.

The Crown could hardly have been unaware of the problems with this approach. The Tribunal raised similar criticisms of Crown process in the Ngāpuhi Mandate Inquiry Report in 2015. The Tribunal has made recommendations to the Crown, across a number of reports, about how to address flaws in the mandating process. For example, it has recommended that the Crown take a more active role in monitoring the mandating strategy; that it must be impartial in its dealings with different Māori groups and preserve not damage relationships between them; and that it ought to ascertain the support, not only of individuals, but of hapū.

Although, in each of the various mandate reports, the Tribunal has focused on addressing the particular flaws in each case, there is an overarching issue: a failure to prioritise Māori legal traditions. If the Crown had given greater attention to the tikanga of, for example, Whakatōhea and Ngāpuhi, it might well have behaved differently in both these negotiations. The ongoing relationships between different communities within the settling groups would certainly have been given greater priority. Instead, often political or administrative expedience has driven Crown actions. In relation to Whakatōhea, the Tribunal took the view that “the Crown has focused too much on the goal of achieving a speedy settlement, including meeting arbitrary deadlines for key milestones, to the detriment of Whakatōhea.”

In the Ngāpuhi Mandate Inquiry Report, the Tribunal offered the following concluding observations:

“…it is crucial to the ultimate success of the settlement process that the negotiating structure is robust and has the full support of those whom it claims to represent, and whose grievances it intends to put to rest. There is a real danger, if the wairua is not there, if the focus is more on economic stimulus than on healing the injuries of the past, if tikanga is pushed to one side to remove what are perceived as impediments to progress, that the opposite will happen: that further grievances will be caused.”

Tikanga and Māori legal traditions must be central to the settlement process. If the Crown recognises this then it can avoid creating further grievances through issues such as the problematic mandate process identified in the Whakatōhea negotiations. That will provide the foundation for durable settlements that contribute to the goals of reconciliation and make good on the promise of the Treaty partnership.

Mike’s insightfulness and knowledge

I laughed out loud when I read Mike Hosking’s rant about Waikato-Tainui’s treaty claim to part of the Auckland region. It was his usual uninformed, reactionary nonsense. You know, fact-free – top to bottom, left to right.

A week or so back, you might remember he had a piece about needing to wrap up the whole Treaty of Waitangi process. I don’t, but I think I get the idea.

You’d hope someone who was making public comment on the Treaty claims and settlement process might have at least tried to read something about it. Maybe even taken a look at a Waitangi Tribunal report or two. After all, the Tribunal is 40 years old. If you can’t, with 40 years’ worth of carefully researched Tribunal reports, work out that the value of Treaty settlements is miniscule compared to the value of land and resources that were wrongly taken from Māori, you’re asleep at your computer keyboard.

We need a deadline and we need to stick to it. The Crown should set a date when it will stop breaching the Treaty and start offering Treaty settlement redress that properly acknowledges the value that the Crown and the New Zealand public continue to receive from Treaty breaches (in other words, value that comes at the expense of Māori). We’ve talked about deadlines before, but it is usually been in the context of extinguishing Māori rights contrary to any principle of justice because people think waiting 40 years to resolve these issues is a long time. Try waiting 175 years.

The commitment that New Zealanders – Māori and non-Māori alike – have made to finding a resolution to long-standing grievances is laudable. No one doubts that wrongs were committed. The evidence is incontrovertible. No one doubts some sort of recompense needed to be sorted. Principles of justice usually require that when your property is taken either your property or compensation to the value of that property be returned to you. We are lucky that Māori have accepted that settlements comprising substantially less than the value of their land, along with apologies and other components of modern settlements, will be deemed to have put right a lot of wrongs.

So, are the over-excited comments of one media blowhard about Tainui ‘claiming Auckland’ worth worrying about? Well, asserting that the Crown’s generosity is being taken advantage of in the Treaty settlement process is, to be blunt, taking the piss. And someone needs to call him on it.

These opinions only get legs because they’re not seen for what they are – farcical. Just because you say it out loud, on multiple media platforms, doesn’t make it real, or plausible, or sensible, or in this case even worth listening to.

What I have noticed over the years with the Treaty process is that by indulging the mad end of the spectrum (think Don Brash at Orewa), you open the door for other racists.

I think back to the asset sales of election year. Most people expect that the Government will act within the law. If the law requires the Government to act consistently with Treaty principles when selling public assets, hey guess what? The Government cannot just say “We’re the Government, and if we want to sell something, we can.” The Government must comply with the law. Most people would say that was a good thing. But then Mike Hosking isn’t most people. Clearly. Because most people wouldn’t describe a case that went all the way to the Supreme Court as “Day one, their case fell over”. I could go into a lot more detail explaining the significance of the Supreme Court decision in the context of a long line of cases in which our higher courts have elaborated on the Crown’s legal obligations with respect to Treaty principles, but Mike doesn’t appear to be interested in either understanding or explaining issues accurately. What a waste of time.

Mike also doesn’t seem to have much of a sense of irony. Otherwise, how could he claim, with a straight face, that the problem is that those genuinely looking for solutions have been swamped by the headline grabbers and the opportunists? I know how you feel, Mike.

Good will only goes so far. If Treaty settlements are to be durable, they must be underpinned by principles of justice. All New Zealanders should demand nothing less. Resolution of these claims will require give and take on both sides. It will also require a genuine desire to understand the complexity of the substantive issues and the process for settling historical claims. I’m pleased to say that most New Zealanders I know are ready and willing for this challenge. They want to understand. They want to be part of a process of putting things right. They want to treat people with respect and be treated respectfully by others. They’re well beyond the limits to which Mike’s narrow thinking constrains him. And by quite some margin.

Alternative Briefing to Incoming Minister – Vote Treaty Negotiations

Introduction

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.

2020 Vision – Labour’s Treaty Settlement Policy

The Labour Party has released its Māori Development policy that includes their intention to ensure that all historical Treaty settlements are completed by 2020. The National Party had previously set a target of 2014 to have Deeds of Settlement completed with all outstanding groups. This target will not be met despite the accelerated speed of settlements under the current government. Keeping in mind that speed is not, of course, equivalent to quality, it should be obvious that nobody is more anxious to complete just and durable settlements than those whose claims are to be settled. I am, nonetheless, cautious about the way in which these targets are articulated. Such targets may be beneficial if they signal that a high priority is to be placed on the resolution of these issues and resources are to be directed to the claims and settlement process accordingly. However, they can be problematic if the intention is to simply impose a deadline for political reasons. In that case it may merely act as one more unilaterally imposed constraint on the settlement process which ultimately undermines both their justice and durability (which I would argue are both fragile enough as it is).

In its Strategic Direction paper released last month, the Waitangi Tribunal is also aiming to complete its inquiries into historical claims by 2020. In that document, covering the period 2014-2025, the Tribunal sets out five categories of claims to assist it to prioritise work according to its strategic objectives:

1. Final district inquiries and remaining historical claims (to be completed by 2020);
2. High priority kaupapa claims [thematic claims, often related to a contemporary policy issue, often of national significance] (to be progressed by 2020);
3. Remaining kaupapa claims [especially those with a historical grievance not addressed by the settlement process] (to be substantially advanced or completed by 2025);
4. Address the backlog of contemporary claims (by 2025); and
5. Address urgent claims arising from Treaty settlement processes and any kaupapa or contemporary claims granted urgency (to be dealt with urgently as they arise).

Although the 2020 timeframe is the issue that has gained media attention, this timeframe has been announced by Labour as part of a much wider Māori Development policy. Even within the section on the Treaty of Waitangi, there are many more interesting measures proposed. Amongst other things, Labour proposes to:

• implement a Treaty education programme for stakeholders and communities

• continue to work with hapū and iwi on innovative redress models to best reflect the nature of their claims under the Treaty of Waitangi

• review the various mechanisms that give effect to the Crown’s ongoing obligations arising from the Treaty settlement process – the intent will be to report on the implementation of such commitments.

• review the role and function of the Waitangi Tribunal once historical treaty claims have been settled, recognising that the inherent nature of the Tribunal has been to consider the way in which the Crown has upheld its obligations as a Treaty partner.

 There is also a section on post-settlement relationships in which Labour commits to:

• work in partnership with hapū and iwi to develop relevant Governance frameworks that recognise the unique collective feature of tribal wealth and resources

• consider the active partnership opportunities that can be forged with iwi on projects of national significance

• work with hapū, iwi and Māori to quantify the contribution of its economy on real growth and productivity predictors that inform its economic policy

• work in partnership with Māori to develop a unique export trade window that platforms industry participation in niche markets

• consider Māori business and services equally in the tendering and procurement of services in its regional economic growth initiatives.

 Importantly, the policy recognises the ongoing obligations that the Crown has, not only in the implementation of Treaty settlements, but, more broadly, as a result of the continuing Treaty partnership. This is important because the Treaty of Waitangi created a relationship that will continue to exist beyond 2020, whether all historical claims are settled by that date or not.

Ka Mate, Ka Mate; Ka Ora, Ka Ora

A few weeks ago, the Haka Ka MateAttribution Act 2014 was passed into law. This Act gives effect to provisions contained in the Ngāti Toa Rangatira Deed of Settlement that relate to the haka Ka Mate. Composed by the Ngāti Toa leader Te Rauparaha, Ka Mate has evolved into something that is seen as a national haka, performed by many of New Zealand’s national sporting teams.

As the statement of association set out in the Act makes clear, although Ka Mate is perceived as being symbolic of New Zealand identity, Ngāti Toa see this haka as being inextricably bound up with their own tribal identity:

The haka Ka Mate is regarded by Ngāti Toa Rangatira as one of the legacies of Te Rauparaha. Given the role of Te Rauparaha in Ngāti Toa Rangatira history, the connection between Ngāti Toa Rangatira and the haka Ka Mate is significant, and it forms an integral part of Ngāti Toa Rangatira history, culture, and identity.

 The Act (and the provisions in the Deed of Settlement that it implements) is designed to address long-standing concerns Ngāti Toa have had about the performance and use of Ka Mate.  The Tribunal heard evidence relating to Ka Mate in its Wai 262 inquiry and in Ko Aotearoa Tēnei: A report into claims concerning New Zealand law and policy affecting Māori culture and identity (2011) the general thrust of Ngāti Toa’s concerns were outlined as follows:

Te Ariki Kawhe Wineera, a direct descendant of Te Rauparaha, is concerned about the misuse of Ka Mate in various New Zealand and overseas commercial ventures. While some renditions of the haka are respectful, many simply ignore the cultural values inherent in the composition, and some are unquestionably offensive – including, for example, an Italian television advertisement for Fiat cars in which a group of women perform a mock haka. Mr Wineera wishes to protect the integrity of Ka Mate, as well as the values that underlie it. He also wishes to ensure that in circumstances where Ka Mate is performed respectfully and with the consent of his iwi, Ngāti Toa receives at least some of the commercial benefits that might flow from that use. He argued that Ngāti Toa’s kaitiakitanga [guardianship] in respect of Ka Mate should be recognised in law.

 In this Act, the Crown acknowledges the significance of Ka Mate as a taonga of Ngāti Toa Rangatira and as an integral part of their history, culture and identity. The Act also provides that any publication of Ka Mate for commercial purposes and communication of Ka Mate to the public must include a statement that Te Rauparaha was the composer of Ka Mate and a chief of Ngāti Toa Rangatira. This legislation will be reviewed after 5 years of enactment to consider whether the interests of Ngāti Toa Rangatira relating to Ka Mate are sufficiently protected.

One thing that is obvious but interesting in the case of Ka Mate is that Ngāti Toa are not attempting to prevent the haka being performed, but rather wish to ensure that its integrity is maintained and that the mana of Te Rauparaha and Ngāti Toa are acknowledged. According to media reports, Ngāti Toa have good relationships with the NZ Rugby Football Union, other national sports teams, and institutions such as the army and police who use Ka Mate.

This Act responds to some of the particular issues faced by Ngāti Toa in relation to Ka Mate. However, these issues around Ka Mate also point to some of the wider questions about the protection of traditional knowledge within the context of an intellectual property rights system primarily designed to address other types of issues.

PostTreatySettlements.org.nz

A new website designed to stimulate debate about issues relating to the Treaty of Waitangi in the post-settlement environment was launched yesterday.  On the website you can find a number of issues papers addressing five key topics.  The site is the outcome of a project undertaken by the Institute of Policy Studies and Te Kawa-a-Māui (the School of Māori Studies at Victoria University). Personally, I would have liked to have seen a greater number of the issues papers written by Māori contributers.  One might also quibble with the way in which the key issues have been chosen and prioritised.  And I think that many of the additional opinion pieces referred to  actually place obstacles in the path of having an intelligent, well-informed, and balanced discussion of these issues.  But, I would encourage people to have a look at the site and form their own views on those matters.  The site is intended to be interactive and comment is encouraged.  I certainly endorse the objectives of the project team and congratulate all those involved for providing a space to engage people in discussion on these important issues.

Haronga v Waitangi Tribunal (Supreme Court)

About this time last year, I wrote a brief post on the Court of Appeal’s decision Haronga v Waitangi Tribunal.  The case was subsequently appealed to the Supreme Court and that court issued its decision last month.  The Supreme Court overturned the Court of Appeal’s decision and, quite dramatically, overturned the Waitangi Tribunal’s own decision not to grant an urgent hearing.

As I noted in an earlier post, the basic facts of the case are as follows:

In Haronga, the application for an urgent hearing was made in September 2009 in light of Crown advice that the Crown and Te Manu Whiriwhiri (a body comprised of several mandated groups from throughout the Gisborne region) intended to initial a deed of settlement in December 2009.  Mr Haronga sought an urgent hearing before the Waitangi Tribunal to address remedies for Treaty breaches specifically in relation to the Mangatu State Forest.  Mr Haronga argued that redress in relation to these breaches should be addressed through the Mangatu Incorporation and that none of the groups within Te Manu Whiriwhiri had the mandate to agree a settlement in relation to those specific issues.

Judge Clark, in the Waitangi Tribunal, declined the application for an urgent hearing.  There were three key planks to Judge Clark’s reasoning:

1. The Tribunal had, in its report, Turanga Tangata, Turanga Whenua, already made recommendations as to the settlement of claims in the Gisborne region and it had not specifically recommended return of the land in question to the current owners of Mangatu and it was unlikely that the Tribunal would reach a different outcome faced with the specific issues that would form the basis of an urgent hearing.
2. Settlement negotiations were underway with the Crown and had not broken down in such a way as to require the Tribunal to act as a “circuit-breaker”.  Admittedly, the Crown was not negotiating directly with Mangatu Incorporation, but then the incorporation had not sought a mandate to negotiate specifically a settlement relating to the purchase of the relevant Mangatu block.
3. The shareholders in the Mangatu Incorporation would not miss out on benefitting from the settlement because all of them are members of Te Whakarau, the relevant mandated group within Te Manu Whiriwhiri that is engaged in the ongoing settlement negotiations with the Crown.

Both the High Court and the Court of Appeal took the view that Judge Clark’s decision not to grant an urgent hearing on the matter of remedies specifically in relation to the Mangatu State Forest was lawful.  The fact that the remedies sought would potentially involve the exercise of the Waitangi Tribunal’s special jurisdiction in relation to Crown forest land did not affect the question of whether an urgent hearing ought to be granted in this case.

The Supreme Court disagreed.  The majority determined not only that the exercise of jurisdiction in relation to Crown forest land required particular consideration in reaching a decision on whether to grant an urgent hearing, but it affected that decision to such an extent that the only conclusion that could lawfully be reached would be to grant an urgent hearing and specifically address the remedies sought by Mr Haronga.  In most cases where the court finds an administrative decision is legally flawed, the court will direct the decision-maker to make the decision again.  Therefore, it is of no small significance that in this case the court has substituted its own decision for the Tribunal’s and directed the Tribunal it must grant an urgent hearing of Mr Haronga’s claim.

The fact that this claim sought the return of Crown forest land was central to the reasoning of the majority in the Supreme Court.  This called into play the Tribunal’s particular jurisdiction in relation to Crown forest land, under which the Tribunal has the power to make binding recommendations that such land be used to settle well-founded claims to that land.  The Court determined that, having decided the that the Mangatu Incorporation’s claims was well-founded, the Tribunal was then obliged to decide whether to grant the remedy sought by Mr Haronga.  The Court noted:

            While the Tribunal is not obliged to recommend a remedy for all claims it has decided are well-founded, it is required to determine whether it should do so. . . The obligation to inquire into each claim is not discharged by a determination that the claim of Treaty breach is well-founded.

The Court also referred to Justice Baragwanath’s decision in Attorney-General v Mair, where he commented that the particular jurisdiction of the Tribunal in relation to Crown forest land provides for a Tribunal determination which “while expressed as recommendatory, [is] ultimately adjudicatory”.  The majority were of the view that the special characteristic of these recommendations (binding, as opposed to the Tribunal’s other, mostly non-binding recommendations) ought of have been given particular consideration in determining whether an urgent hearing should have been granted.  The Court found it was not considered in this case.  Consequently, the Tribunal’s decision not to grant and urgent hearing was fatally flawed as the 

prejudice to the claimants of that decision could not have been properly assessed.

The Court, therefore, disagrees with all three key planks of Judge Clark’s reasons.  Given the Court’s reading of the statutory scheme, the majority found that the general findings in the Turanga Tangata, Turanga Whenua report could not constitute a discharge of the Tribunal’s responsibilities.  The Court also found that Mr Haronga’s actions indicated that, as far as he and the proprietors of Mangatu Incorporation were concerned, negotiations with the Crown in relation to the settlement of their specific claim had broken down.  Te Whakarau could no longer be said to have a mandate from the owners of Mangatu Incorporation to address the Mangatu purchase in their negotiations with the Crown, and the fact that those negotiations were ongoing was irrelevant. Judge Clark was, therefore, incorrect when he concluded that the owners of Mangatu Incorporation would not be prejudiced by his decision not to grant an urgent hearing.  As the Supreme Court pointed out, “[t]he settlement negotiated [by Te Whakarau] will not deal with the specific claim for resolution of the land under the adjudicatory jurisdiction of the Tribunal”.  The majority in the Supreme Court considered that Judge Clark had no choice but to direct an urgent hearing of Mr Haronga’s application and ordered the Tribunal to undertake such a hearing.

Justice William Young did not agree that this was an appropriate remedy in this case.  Justice Young did not accept that the Tribunal’s binding powers in relation to Crown forest land meant that the Tribunal, when exercising those powers, was functioning as if it were an adjudicatory court.  If it was, he argues, there would be no need for the staged interim and final recommendations required in exercising this jurisdiction.  Furthermore, the Tribunal’s decision as to whether it ought to make any recommendations is distinct, considers Justice Young, from its duty to inquire into claims.  On this view, the granting of an urgent hearing in this case is not an inevitable consequence of the Tribunal’s powers when properly exercised.  Justice Young maintains that the Waitangi Tribunal is better placed to make a determination on these matters than is the Court.

The majority’s decision is notable for requiring the Tribunal to undertake an urgent hearing of Mr Haronga’s application and make a decision as to what, if any, remedy is appropriate in this case.  This, in itself, is likely to have considerable ramifications for the way in which the Tribunal approaches urgency applications in future, particularly those that relate to remedies.  Both the majority and minority decisions also include some significant comments in relation to settlement negotiations and the nature of the mandates held by representative bodies in those negotiations, which could also have an impact on the settlement process more broadly.

Maa-nulth Final Agreement and the Ngāti Porou Deed of Settlement

At the beginning of this month the Maa-nulth Final Agreement, negotiated as part of the British Columbia Treaty Process, came into effect.  Looking at the contents of this agreement, I thought it might be helpful to consider how the agreement compares with settlements reached under the Treaty of Waitangi Settlement Process.  I’ve used the Ngāti Porou Deed of Settlement, signed at the end of last year,  as a relatively recent point of comparison.  Though there are many factors which distinguish the situation of the Maa-nulth nations from that of the hapu of Ngāti Porou, even a general comparison reinforces a number of concerns I have about the durability of Treaty of Waitangi settlements.

The five Maa-nulth First Nations are Ucluelet First Nation, Huu-ay-aht First Nations, Toquaht Nation, Ka:’yu:’k’t’h’/Che:k’tles7et’h’ First Nations and Uchucklesaht Tribe.  The traditional territories of these nations are situated along the west coast of Vancouver Island and altogether this agreement will cover about 2,000 people.  I have not been able to ascertain the precise land area that would have been encompassed by the traditional territories of these nations, but my rough calculations based on the maps provided by the nations in the negotiating process suggest that their traditional lands covered approximately 400,000 hectares.

Ngāti Porou are also recognised as having a traditional territory of approximately 400,000 hectares, though in most other respects the two groups are very different.  The 2006 census figures show that over 70,000 people affiliate to Ngāti Porou – a population 35 times larger than the five Maa-nulth Nations combined. 

Both the Maa-nulth Final Agreement and the Ngāti Porou Deed of Settlement are detailed documents which provide for a range of mechanisms designed to implement a new relationship between the indigenous community and the state.  The Maa-nulth agreement is intended to reflect an agreed relationship with the state for the very first time while the Ngāti Porou settlement aims to give effect to the rights and obligations of the relationship established by the Treaty of Waitangi.  These different contexts are important and do give rise to significant differences in process and substance, but perhaps not to the extent one might expect. 

In any case, even though it makes for a relatively crude comparison, we can consider the total dollar value of these agreements and the amount of lands being returned.  These will both be important factors contributing to the sustainability of community infrastructure and, ultimately, the durability of the agreements.  The land package in the Maa-nulth Final Agreement consists of approximately 24,500 hectares.  Ngāti Porou will have approximately 6,000 hectares returned to them.  Even though the Maa-nulth nations are located on the relatively small Vancouver Island, and not the vast lands of mainland British Columbia, it might still be argued that, in general, the amount of land the state has at its disposal in Canada is much greater than the amount of land that could be used for Treaty of Waitangi settlements in New Zealand.  Indeed, that is no doubt part of the reason why the Maa-nulth nations are receiving a much greater percentage of their traditional lands as part of their agreement. 

In terms of the monetary component of these agreements, the Ngāti Porou settlement includes financial redress of $90 million (NZ) and the Maa-nulth agreement provides for capital transfers of a similar amount (approximately $70 million CDN which, at current exchange rates, is about $90 million NZ).  I should note that the total value of the Ngāti Porou settlement is cited as $110 million (NZ) but that includes the value of properties returned as part of their ‘cultural redress’.  As far as I can ascertain, the value of the capital transfers in the Maa-nulth agreement do not include the value of returned land.  The Maa-nulth agreement also provides for various other forms of ongoing funding, though those other funding streams generally reflect things such as contracts for provision of social services that are not dealt with in the settlement of historical Treaty of Waitangi claims.

Given that the traditional territories of both communities cover a comparable land area, it might seem logical that the value of these agreements are roughly similar.  However, when we recall that the Maa-nulth Nations have a population of 2,000 and Ngāti Porou has a population of over 70,000 it is clear that the Maa-nulth agreement is much more valuable when considered on a per-capita basis.  It is, of course, arguable that present day population size ought not to be the only, or indeed the predominant, factor in determining the financial value of the Treaty of Waitangi settlements.  I agree that the primary consideration in the historical Treaty claims settlement process ought to “what will provide a just resolution of these grievances?”.  Having said that, it is a narrow vision of justice that would not take account of the value of the settlement pre head of population.  Furthermore, if the settlement of historical Treaty of Waitangi claims is going to contribute to broader goals of reconciliation, then such settlements must provide a sufficient economic base for settling groups to establish a sustainable tribal infrastructure.  If these settlements do not provide a sufficient base for tribal infrastructure to meet the needs of its population over more than a single generation, these settlements will not be “full and final” and will not assist with a wider process of reconciliation.

I think there are significant flaws in both the British Columbia Treaty Process and the Treaty of Waitangi Claims Settlement Process, some of which I have referred to previously.  There are also numerous differences in law and policy, historically and today, between the Canadian and New Zealand jurisdictions, so any comparisons must be heavily qualified.  Nevertheless, a quick (and admittedly, fairly rough) comparison between the Maa-nulth and Ngāti Porou agreements reinforces the need to consider the justice of these agreements from multiple angles if we wish them to be durable and to contribute to broader objectives of reconciliation.

Special Rapporteur Report: Treaty settlements

In July last year, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, visited New Zealand to investigate the situation of Māori.  That visit was to follow up the 2005 visit of the previous Special Rapporteur, Rodolfo Stavenhagen, and primarily focused on issues relating to the Treaty of Waitangi and the associated claims and settlement processes.  The Special Rapporteur last week reported on his 2010 visit.  In his report, he identified the concerning disparity between Māori and other New Zealanders across a range of health and social indicators.  That aspect of the report has been the subject of some comment in the media.  The Special Rapporteur also makes a number of interesting comments on the Treaty settlement process.

The Special Rapporteur commends the New Zealand government for its efforts to settle historical claims based on the Treaty of Waitangi, but also notes some significant “ongoing concerns”. In general, the Special Rapporteur recorded the overarching concern expressed by many Māori that the Treaty settlement process is fundamentally flawed “because the party responsible for the breaches of the Treaty of Waitangi – the Government – is wholly responsible for determining the framework policies and procedures for redress for those breaches, resulting in a situation that is inherently imbalanced and unfair to Māori”. 

Of particular concern to the Special Rapporteur was that the government determines the group with which it will negotiate, which, while creating some efficiencies in the settlement process can lead to the specific claims of smaller groups being overlooked and can cut across existing hapū and iwi leadership structures.  The Special Rapporteur was very troubled by the Waitangi Tribunal’s comment in its Tamaki Makaurau Settlement Process Report that although the Treaty settlement process is supposed to improve Māori-State relationships, “what we are seeing […] is that the process of settling is damaging more relationships than it is improving”.

Other concerns relate to the settlement redress that is available.  The Special Rapporteur notes that “the Government wholly defines what and how much redress is available to settle historical claims” and that “Māori have expressed concern that the value of the settlements is grossly out of proportion to the value of what has been taken from them, amounting only to an estimated three per cent of the value of their total loss”.

The Government’s focus on achieving “finality” of settlements also creates problems.  Because the Crown’s concept of “finality” is based on the extinguishment of Māori rights (which, I would argue, is problematic in itself), the legislation that implements aspects of Treaty settlements prevents the Waitangi Tribunal or the courts from addressing the historical claims that are the subject of that legislation.  The Special Rapporteur notes “This lack of independent review contributes to a feeling on the part of Māori of an imbalance of power in the settlement process, as well as a feeling that the settlement process is at times unfair”.

The Special Rapporteur’s overall view of the Treaty settlements process is expressed in the following passage:

The Special Rapporteur understands that there are many difficulties and complexities involved in the Government’s laudable effort to provide redress for historical grievances through negotiated Treaty settlement.  Nevertheless, the aforementioned concerns have fomented an uneasiness and mistrust by Māori of the Treaty settlement process, which may have negative implications for achieving the important goals of redress and reconciliation that the process is designed to advance.  The Special Rapporteur observes that increasing Māori participation in and influence over settlement policies, procedures, and outcomes could go a long way in alleviating the apparent discontent in the Treaty settlement process felt by Māori groups.

If settlements are to be durable agreements that contribute to a process of reconciliation, then it will be necessary for the government to address the concerns outlined by the Special Rapporteur and focus more attention on reaching Treaty settlements that deliver justice, rather than settlements that merely deliver short-term efficiencies. 

Year 171

As I noted around this time last year, Waitangi Day is not only a time to celebrate our nationhood, but ought also to be a time when we reflect on the nature of the relationship set out in the articles of the Treaty of Waitangi and how healthy that relationship is at present.

The 171^st year of the life of the Treaty has provided some interesting indicators of the state of the Treaty partnership.

The increasing influence of the National Iwi Chairs Forum over the last year has certainly been a notable development in terms of the way in which the Crown engages with Māori.  Pita Sharples, as both Minister of Māori Affairs and Māori Party co-leader, sees as extremely positive the input that the Iwi Chairs Forum has had, and continues to have, into policy relating to the foreshore and seabed, water, aquaculture, emissions trading, forestry and resource management.  Sharples suggests that this group represents the Māori Treaty partner, and that the Māori Party itself represents the Māori Treaty partner in its relationship with the National Party.  Prominent Māori lawyer Annette Sykes has a different view.  In the 2010 Bruce Jesson Lecture, Sykes provided a powerful critique of the National Iwi Chairs Forum and its relationship with the Crown.  Sykes argues that the increasing influence of the National Iwi Chairs Forum is not enhancing the Treaty relationship.  On the contrary, she suggests that it is in fact obstructive of the relationship envisaged by the Treaty, which was one between hapū rangatira and the Crown.  In effect, the Crown has constructed “a Treaty partner in it’s own image” which it feels comfortable dealing with. Sykes points to the Forum’s engagement in the very areas highlighted by Pita Sharples as evidence for her argument.

The foreshore and seabed issue is one area in which Pita Sharples believes the health of the Treaty relationship is being demonstrated.  Although he acknowledges that the proposed replacement for the Foreshore and Seabed Act, the Marine and Coastal Area (Takutai Moana) Bill that is currently before the Māori Affairs Select Committee, is not everything Māori might have hoped for, he clearly sees the Bill as a step towards better recognition of tino rangatiratanga.  The Bill is undoubtedly an improvement on the Foreshore and Seabed Act.  But it is still fundamentally flawed.  Many people might wonder how it can be a step towards tino rangatiratanga for the Māori Party to support a Bill that will discriminate against Māori.

Another area that we might look to in order to ascertain the health of the Treaty relationship is the work of the Waitangi Tribunal and the Office of Treaty Settlements.  There has certainly been considerable activity in this area over the past year.  The Tribunal has released the Stage II report on the Tauranga Moana claims dealing with post-raupatu issues, Part Two of the report on the Urewera claims, the East Coast Settlement Report, the Wairarapa ki Tararua Claims Report, the Management of the Petroleum Resource Report, and a pre-publication version of the chapter dealing with te reo issues from the Wai 262: Indigenous Flora and Fauna and Māori Intellectual Property inquiry.  We hope to see the final report for the long running Wai 262 inquiry published this year. The Office of Treaty Settlements has also been busy with major settlement legislation being enacted, a number of significant deeds of settlement reached, and important agreements in principle signed with groups in the Auckland area and the Te Hiku Forum representing five iwi from the northernmost part of the country.  The Crown is continuing to work towards its target of settling all historic treaty claims by 2014.  Swift progress is of as great a concern to Māori as anyone else, and yet we must not lost sight of the fact that the durability of these settlements will depend on delivering a measure of justice.  With that in mind, it is worrying to note the recent concerns raised by some iwi about the pressure to settle that is being exerted by the Crown.

As we head into the 172^nd year of the Treaty of Waitangi, we have both an election and a constitutional review on the horizon.  Both could well deliver significant outcomes for the way in which the Treaty relationship is implemented.