East Coast Settlement Report

The Waitangi Tribunal has released two significant reports within the last week.  First was the Tribunal’s report on the Treaty claims of iwi and hapū of the Wairarapa ki Tararua district.  This report is the culmination of a major district inquiry and was released on 26 June 2010.  I will write a post on that report in due course, but for the moment I would like to focus on the Tribunal’s East Coast Settlement Report, which was released yesterday. 

The East Coast Settlement Report is the latest in a series of reports which address aspects of the Treaty settlement process itself.  In fact, this report provides a helpful summary of previous Waitangi Tribunal comment on Crown settlement policy.  The report also addresses the recent Court of Appeal decision in Attorney-General v Te Kenehi Mair (which was the subject of a previous post on this site).

The East Coast Settlement Report relates to the settlement negotiations that are currently under way between the Crown and Te Runanga o Ngāti Porou.  A number of claimants who submitted claims for the Waitangi Tribunal’s East Coast district inquiry did not wish to enter direct negotiations with the Crown without first going through a full district inquiry.  Some of these claimants, who claim to represent the kin groups Ruawaipu, Uepohatu, and Te Aitanga-a-Hauiti ,sought recommendations from the Tribunal that the settlement between the Crown and Te Runanga o Ngāti Porou should be delayed.  They contended that the Runanga has no mandate to negotiate the settlement of their claims and that the Crown’s recognition of the Runanga’s mandate is contrary to the principles of the Treaty.  The Tribunal held an urgent hearing of these claims in December 2009 and has now reported its findings and recommendations in the East Coast Settlement Report.

The report identifies a number of aspects of the mandating process that might have been improved upon, although the Tribunal determined that any flaws in the process were not substantial enough to warrant delaying the settlement.  The Tribunal was mindful that such a delay would significantly prejudice those who support Te Runanga’s mandate.  Furthermore, the Tribunal noted that a full inquiry was unlikely to address the many of the issues at the heart of the claimants concerns, which were really issues between Māori groups, upon which the Waitangi Tribunal has historically been reluctant to comment.

However, the Tribunal did find a number of flaws in the Crown’s Treaty settlement policy and recommended a number of changes to that policy to ensure that the settlement process is fair and that settlement agreements are durable.

These recommended changes included the following:

• The Office of Treaty Settlements should call for submissions at the point that a proposed mandating strategy is submitted, as well as after a deed of mandate is received in order to allow ample time for interested parties to voice their concerns and for the Crown to be made aware of potential issues at an early stage.

• The information provided as part of any mandating strategy must include: 
• the specific claims (Wai numbers) to be included in a proposed settlement; 
• a clear definition of the claimant community on an iwi, hapu, marae, and whakapapa basis; 
• and the specific geographical area to be covered by a proposed settlement.

• The Office of Treaty Settlements should, at an early stage, write to all Wai number claimants whose claims might be extinguished if a proposed settlement goes ahead, and should also assist any body that is mandated to negotiate the settlement of claims to communicate settlement milestones and developments with affected claimants.

• The Crown should adopt a more proactive role in monitoring developments during the mandating strategy process in order to discharge its responsibilities towards claimants who may feel marginalised as a result of the process.

• In order to lessen the likelihood of claimants seeking assistance and protection through the Waitangi Tribunal’s urgent inquiry process, the Crown must recognise that it “has a responsibility to ensure that all interested parties in a negotiated settlement have access to unhindered participation at every stage of the mandating process.”

• The Office of Treaty Settlements should “update its policy guide, Ka Tika a Muri, Ka Tika a Mua, to reflect changes that have arisen out of the recommendations of Waitangi Tribunal reports on mandating issues and Crown settlement policy in general.

Waikato-Tainui Raupatu Claims (Waikato River) Act

Earlier this month, the Waikato-Tainui Raupatu Claims (Waikato River) Act was passed by Parliament.  This act implements aspects of the agreement between the Crown and Waikato-Tainui to settle claims in relation to the Waikato River, which were explicitly excluded from Waikato-Tainui’s earlier settlement.  ‘Co-management’ is a central theme of the legislation, which provides a number of significant mechanisms for the involvement of Waikato-Tainui in the management of the river.  

The central body in the new co-management arrangements established by the Act will be the Waikato River Authority.  The Authority is comprised of ten members – five members appointed by the Crown (including two members to be recommended by local government) and five members appointed by organizations representing iwi with interests in the river.  The Authority sets the primary direction of the management of the Waikato River.  This is affected through the Vision and Strategy for the Waikato River, which is set out in Schedule 2 of the Act and is to periodically reviewed by the Authority.  The Vision and Strategy are central to the new framework for the environmental management of the Waikato River.  Broadly, instruments that regulate the management of the river under the Resource Management Act 1991, such as regional policy statements, and regional and local plans must be made consistent with the Vision and Strategy.  Any changes to conservation management strategies and plans must be accompanied by a statement on how the Vision and Strategy has been given effect to.  The Act also lists a range of other situations in which the Vision and Strategy must be given particular regard.  The Vision and Strategy, therefore, are important instruments in relation to the management of the river, and the Waikato River Authority is the body responsible for reviewing the Vision and Strategy and recommending amendments.

The Authority has a range of other powers and functions, including providing advice to local and central government agencies and appointing members to sit on resource consent hearing committees, but the Authority also has an important role as trustee of the Waikato River Clean-Up Trust. The object of this trust is the restoration and protection of the health and wellbeing of the Waikato River for future generations.  Under the terms of the amended Deed of Settlement, the Crown will provide $21 million to the trust fund initially and then $7 million each year for 27 years.  This trust will therefore be a central player in the management of the river through its role of allocating funding for restoration projects.

There are a number of other significant co-management measures in this settlement, but the final instrument that I would like to address in this post is the Integrated River Management Plan.  The purpose of this plan is “to achieve an integrated approach between Waikato-Tainui, relevant departments, relevant local authorities, and appropriate agencies to the management of aquatic life, habitats, and natural resources within the Waikato River”.  This plan is to be prepared jointly by Waikato-Tainui and relevant government departments and must include a conservation component, a fisheries component, and a regional council component.  These various components feed into the particular planning processes that regulate each specific subject area.

Overall, this settlement represents significant potential for Waikato-Tainui to have genuine input into the management of the Waikato River.  The next challenge will be for all those involved to ensure that this potential is fully realized. 

Tuhoe Settlement Negotiations

A couple of weeks ago, TV3 News ran an item on Ngai Tuhoe’s Treaty of Waitangi settlement negotiations.  The item, in rather sensationalist style, stated:

The Government is on the verge of offering the Tuhoe tribe a treaty settlement that could be as groundbreaking as it is controversial. Tuhoe is hoping it will mean total control of the Urewera National Park, and start the tribe on the way to self-rule and becoming a separate nation… Tuhoe sources have told us the first steps towards separate Tuhoe rule are also on the table under what’s called ‘mana motuhake’. The tribe wants Government functions like schools, health and welfare handed over to Tuhoe, with other functions – even tax – devolved over time.

The Minister of Treaty of Waitangi Negotiations responded to this item by issuing a statement that included the following:

At no point in the negotiations have Ngai Tuhoe asked for any form of separatism from New Zealand or an independent Tuhoe state.  Those issues are simply not part of any negotiation the Crown is undertaking.  The Crown has not, and will not, make any offer to Ngai Tuhoe that includes such forms of redress. 

While the Minister was quick to dismiss the idea of a separate, independent Tuhoe state, issues of self-determination, increased autonomy, and tino rangatiratanga are inevitably a part of all Treaty of Waitangi settlement negotiations.  In the case of Ngai Tuhoe, there has been a particular focus on political and constitutional arrangements throughout the claims and settlement process to date.  As noted above, this is nothing very extraordinary in the context of Treaty of Waitangi settlement negotiations, but does provide an opportunity to more directly address ‘constitutional claims’.

These constitutional claims were heard by the Waitangi Tribunal as part of its Te Urewera district inquiry.  Last year, the Tribunal released a pre-publication version of Part 1 of its report on the Te Urewera claims.  The Tribunal notes that, as Ngai Tuhoe were not signatories to the Treaty of Waitangi, they were not automatically bound by its terms, though the Crown’s obligations to Ngai Tuhoe are not affected:

Due to the failure of the Crown’s emissaries to bring the Treaty to Te Urewera in 1840, the claimants’ tipuna were not offered the chance to debate the terms of the Treaty or a relationship with the Crown, or to come to a decision on the matter. By British law, the Crown’s sovereignty over the whole of New Zealand rested on its proclamations of May 1840, as gazetted in October 1840. In political terms, however, life continued unaltered in Te Urewera after October 1840. The Treaty took effect for the claimants’ tipuna only as a unilateral set of promises made to them by the Crown.

The one part of the Tribunal’s report that has, to date, been released as a pre-publication document, only addresses the period up until 1865.  The Tribunal suggests that there was nothing that took place between 1840-1865 that significantly affects the matters that are the subject of the ‘constitutional claims’:

Government did not attempt to assert any authority in Te Urewera until 1866, when it confiscated a sizeable portion of land in the district. Nor did it attempt to enter into a relationship with the peoples of Te Urewera, or to obtain their consent to its authority.

It is this background that provides a central part of the context for Ngai Tuhoe’s Treaty settlement negotiations.  It is hardly surprising that one of the subjects listed as a key area for discussion in the Terms of Negotiation is described as follows:

Constitution: aim to provide clarity between the Crown and Ngai Tuhoe regarding their constitutional relationship. Such discussions should focus on historical, current and future Treaty relationships

Establishing new relationships between iwi/hapū and the Crown is a vital part of the Treaty settlement process.  Without such new relationships it is impossible to move towards any form of reconciliation.  These issues sit at the heart of Ngai Tuhoe’s claims and it will be interesting to see how these will be addressed in any proposed settlement.

New Zealand’s Support for UNDRIP

Last week it was announced that New Zealand would support the United Nations Declaration on the Rights of Indigenous Peoples.  This is an important step forward and it was increasingly becoming untenable for New Zealand to maintain its opposition when Australia and the USA, under new, more progressive administrations, were revising their position on the Declaration.  Canada, the fourth of the opposing countries, is now also reported to be moving towards acceptance of the Declaration.  Even though this is an incredibly important step, the New Zealand government’s announcement represents a rather strange form of support.  Various members of the Government, from the Prime Minister down, have been at pains to play down the significance of New Zealand’s support for the Declaration, mostly suggesting that it would have no practical effect.  New Zealand’s statement of support does contain a number of caveats, but the Declaration will, undoubtedly, influence New Zealand law, as former High Court Judge Sir Edward Durie and public law expert Mai Chen have both pointed out.

New Zealand’s statement of support for the Declaration, and in particular, the qualifications contained within that statement, generally reflect the objections that were raised by the previous Government at the time the Declaration was adopted by the General Assembly.  As noted in a previous post, anyone looking for an accessible overview of the Declaration and an analysis of the New Zealand government’s concerns could do no better than to read this article by Claire Charters.  Those interested in this issue may also wish to listen to this interview with Aboriginal legal scholar Megan Davis that aired on ABC radio shortly after Australia had announced its decision to support the Declaration.  And for more detailed general information about the Declaration, see the recently published collection of essays edited by Claire Charters and Rodolfo Stavenhagen, Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples.  As always, Peace Movement Aotearoa also has a helpful collection of resources that are accessible via their website.


[UPDATE: See also Claire Charters’ recent comments here]

The New Zealand government seems to be particularly concerned about the articles of the Declaration that relate to self-determination, rights to land and resources, and involvement in decision-making.  As noted above, these reflect the concerns expressed by the previous government and Claire Charters’ article explains why the fears around these provisions are misplaced.  I thought it might be useful here to draw attention to aspects of the government’s statement of support that relate to the Treaty of Waitangi claims settlement process and the provisions in the Declaration that address rights to lands and resources.

There are three important articles in the Declaration which relate to Indigenous peoples’ rights to lands and resources:

Article 26

1.            Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2.            Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3.            States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28

1.            Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

2.            Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

The New Zealand government’s statement of support notes:

…where the Declaration sets out aspirations for rights to and restitution of traditionally held land and resources, New Zealand has, through its well-established processes for resolving Treaty claims, developed its own distinct approach…Redress offered in Treaty settlements is, however, constrained by the need to be fair to everyone and by what the country as a whole can afford to pay.

The New Zealand government appears to be trying to say that it will support the rights set out in the Declaration, so long as it doesn’t require it to do anything differently.  In particular, the government seems to think that the Treaty of Waitangi claims settlement process should continue unchanged, even if it is inconsistent with the rights set out in the Declaration.  I am not sure how that process can be expected to contribute to meaningful reconciliation if it proceeds on that premise.  Then again, it may well be that, despite the government’s qualifications, the Declaration becomes a much more influential instrument than some of the commentary has suggested. 


  

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.

Chris Finlayson on Treaty Settlements in Auckland

It was good to see the Minister for Treaty of Waitangi Negotiations, Chris Finlayson, today explaining in the Herald some of the key aspects of Treaty settlements and setting out the Government’s broad objectives in this area.  It is very helpful to have information about the Treaty settlement process made accessible.  It is also good to see the Minister emphasizing, in positive and optimistic terms, the importance of concluding Treaty settlements and redressing historical claims.

While I am pleased to see the Minister communicating this information to a wide audience, some of his underlying assumptions seem to me to be fundamentally problematic for his stated objective of achieving just and durable Treaty settlements.   In a previous post, I noted that the lack of attention to the justice of settlement agreements is ultimately detrimental to the durability of those settlements.  However, the conceptualization of the Treaty settlement process that the Minister has articulated appears to place little value on achieving justice.  Rather, the focus is on deal-making and reaching politically expedient agreements.  This might have little effect on the fairness and, consequently, the durability of settlements so long as the negotiation of settlement agreements took place between parties with roughly equal power and resources or if there existed procedural safeguards to level the playing field.  This is not the case.  The Crown Forestry Rental Trust publication, Māori Experiences of the Direct Negotiation Process, shows that one of the concerns that has consistently been expressed by Māori groups is that the Treaty settlement is process is not really a ‘negotiation’ in any accurate sense of the word.  

As an example, the Minister says that:

Public access to natural resources is, and always will be, a bottom line for this Government. . . . Iwi are keen to get on with the business, the Crown is keen, and everyone agrees that public access can never be compromised.

I don’t know whether everyone really does agree that public access can never be compromised.  I certainly wouldn’t be very impressed if, contrary to an agreement we had struck, the government confiscated my land, profited from that confiscation for over 100 years, and then told me that I could have 2% of that land back, but that members of the public would also continue to use my land.  If public access is a bottom line for the Crown, what choice do iwi who want to settle their claims have but to agree?  I understand that achieving resolutions which are just, not only to Māori, but also to other New Zealanders, will, in some situations require measures such as a guarantee of public access. But just and durable settlements will not be achieved by the Crown making demands within a process where iwi who wish to settle their claims have no choice but to concede.  Quite simply, the primary concern in relation to Treaty settlements must be justice in both the process and the substantive outcome with regard to the particular circumstances of the historical injustice that the settlement is to address.

Year 170: Treaty Settlements Progress

The settlement of Treaty of Waitangi claims continued at pace during the 170th year of the Treaty relationship.  

The Crown signed Terms of Negotiation with NgāiTakoto (a Far North iwi based around Kaitaia and the Aupouri Peninsula) and Ngā Punawai o te Tokotoru (a group comprised of three Te Arawa iwi: Ngati Rangiteaorere, Tapuika and Ngati Rangiwewehi).  Terms of Negotiation provide the guidelines under which negotiations between settling groups and the Crown will proceed.  For completeness, it should be noted that the Terms of Negotiation agreed with Ngā Punawai o te Tokotoru amend Terms previously signed with Tapuika and Ngati Rangiwewehi in 2008 so as to include Ngati Rangiteaorere.  NgāiTakoto has also recently progressed to the next stage in the settlement process and signed an agreement in principle as one of five iwi that comprise the Te Hiku Forum.

Agreements in principles or letters of agreement were signed with eight different Māori groups, representing seventeen iwi.  These agreements provide a broad outline of an agreed settlement package.  On the basis of that broad outline, the parties then work towards agreeing Deeds of Settlement which set out the details of the settlement redress.  Over the course of the last year, Deeds of Settlement were signed with Ngāti Manawa, Ngāti Whare, and Waikato-Tainui (the latter specifically addressing claims in relation to the Waikato River).  A Deed of ‘on account’ Settlement (agreeing specific matters prior to a comprehensive settlement) was also signed with Whanganui Iwi.  Furthermore, legislation to implement the settlement of the Port Nicholson Block claims was enacted and the transfer in July of approximately $450 million in land and cash to eight Central North island Iwi completed the Central North Island Forestry Settlement.

During 2009, the Government also consulted representatives of Māori groups on proposals to speed up the settlement process and make it more efficient.  

The progress of Treaty settlements is heartening.  As are attempts to speed up the settlement process.  Nobody would like to see the speedy conclusion of Treaty settlements more than Māori.  The return of lands and the provision of symbolic compensation can provide a foundation from which settling groups may begin to rebuild an economic base, which so many Māori groups have had taken from them in breach of the principles of the Treaty.  That rebuilding cannot happen soon enough.  

But we should also proceed cautiously in this area if we want to ensure these settlements are durable and contribute to a wider project of reconciliation.  The Canadian sociologist, Andrew Woolford, has studied the treaty process that is underway in British Columbia.  Despite the different historical contexts, the British Columbia process of modern treaty negotiations with First Nations has many similarities with the Treaty of Waitangi settlement negotiations in New Zealand.  In his 2005 book, Between Justice and Certainty, Woolford argues that if too little attention is paid to the justice of settlements because the the primary objective is seen as being to agree pragmatic deals as quickly as possible, then the injustice is not properly addressed and the settlements are unlikely to be ‘full and final’.  We can see this sentiment reflected in recently reported comments from Ngati Kahu negotiator, Margaret Mutu when she suggests that none of the settlements Maori have made with the Crown are final, and future generations will go back to the Crown for more.  And this on the eve of Mutu signing an agreement in principle with the Crown on behalf of Ngati Kahu as part of the Te Hiku Forum.

Perhaps instead of focusing on ways to conclude settlements faster, we should consider more carefully what is actually required to properly redress breaches of the Treaty and develop a strong foundation for a healthy, on-going Treaty relationship.