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• Post-Settlement Issues
• Defining Considerations

1. Introduction

Post-settlement issues

1 SINCE 1985 THE WAITANGI TRIBUNAL has had jurisdiction to

inquire into and make recommendations on Crown acts or omissions, which constitute breaches of the principles of the Treaty of Waitangi, from 6 February 1840, the date on which the Treaty was signed.[7] Any Mäori person may bring a claim under the Treaty of Waitangi Act 1975 on behalf of a group of Mäori.[8]

2 Over the last decade, Deeds of Settlement have been concluded between the Crown and a number of settlement groups,[9] with several more still to be completed.[10] There are also at least 30 groups in negotiation with the Crown or in regular contact with the Office of Treaty Settlements (OTS). In addition, benefit allocations under the pan-tribal fisheries settlement concluded in 1992, are likely in the near future.[11]

3 The Commission’s analysis of the relevant case law and existing legal entities in use by Mäori,[12] and discussions with officials from Te Puni Kökiri (TPK) and OTS, and with the Chief Judge of the Mäori Land Court, have confirmed the significance of the two issues prompting the Commission’s reference.

4 First, there is at present, no uniform settlement model, able to be adapted to meet the particular needs of each individual settlement group and its members, which defines satisfactorily the core functions of those responsible for stewardship of the settlement assets.

5 Secondly, there is at present, no model mechanism to ensure that, when disputes arise among members of settlement groups (or between members of the group and those responsible for stewardship of the settlement assets), such disputes can be resolved promptly, and in a manner consistent with the cultural expectations of the group, by a forum knowing those expectations and operating with the confidence of the group.

6 There is, the Commission considers, a need for a model settlement entity, that answers both deficiencies and that marries existing legal principles with Mäori values.

7 There is also the possibility that such an entity might serve wider purposes than just receiving assets transferred in settlement of Treaty grievances, and their use by the relevant settlement group. This will be a matter for Mäori to consider.

Defining considerations

8 In this analysis the following considerations are of prime importance.

Tribal identity

9 First, any new settlement model must support, and not be to the detriment of, tribal identity. As Professor Durie has noted:

... [d]ifferent concerns about modern tribal governance structures have ... been raised in connection with the emphasis on business models, which appear to corporatise iwi. Tribal members are aware of the corporations in Alaska which have all but ousted traditional tribal structures and are keen to avoid creating economically orientated organisations which fail to capture the essential cultural basis of the tribe.[13]

10 This danger can be avoided, the Commission believes, by creating a framework that recognises the importance of tikanga Mäori.

Mandate and representation

11 Secondly, there are the enduring issues of mandate and representation of Mäori in the Treaty claims process.[14] These issues have their origin in the pre-settlement process, and in that sense are beyond the Commission’s reference. But, any conflict in that phase can lead to problems in the post-settlement phase, upon which this paper focuses.

12 These issues can be within, or between kin groups, or expand to groups beyond kin groups involved in the settlement process. The role of the Crown in this area is a specific issue in itself.

13 The Crown prefers, when resolving Treaty grievances, to settle with “large natural groups”, which may comprise a combination of claimants.[15] While this approach certainly has advantages for the Crown and in some instances for the settlement group, the potential for disputes is greater when different kin groups are involved in the same settlement.¹⁶

Cost

14 Thirdly, the cost of creating suitable settlement entities is a significant issue in itself. The entity must be cost-effective, especially from the claimants’ point of view.

Current policy

15 Fourthly, adherence to current Crown policy is a further consideration: specifically the criteria for post-settlement entities, and those applied by Te Ohu Kai Moana (TOKM).[17] The Commission is in general agreement with these criteria, but considers that they need to be refined to take into account tikanga Mäori.

Commercial efficacy

16 Fifthly, any entity must allow the settlement group to advance economically. There are instances of entities created in the past that have disadvantaged Mäori economically.

A flexible approach

17 Finally, the Commission’s preference is that any structure must be flexible enough to empower the various settlement groups to determine their own priorities, and how the priorities are to be given effect. Four elements, however, will always need to be present: stewardship, accountability, transparency and dispute resolution.