New Zealand Law Commission
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18 MäORI GROUPS, who bring claims under the Treaty of Waitangi Act
1975, are most often bonded by blood. The usual common denominator of each group is the ability of each member to whakapapa to a common tipuna.
19 While a goal of the settlement process should be to encourage management “by Mäori, for Mäori”, there are difficulties. Even where a settlement has been effected with members of a settlement group, there remains the potential for dispute between the tribal leadership and members of a particular whänau or hapü over use or distribution of assets or the proceeds of assets. When settlements embrace more than one kin group, disputes are more likely still.
20 Although most claims have, in the past, been brought by kin groups, the new reality is that more Treaty claims are being brought by Mäori not bonded necessarily by kinship. These claims focus on generic issues. Examples are the claims relating to flora and fauna, generic broadcasting, electoral issues,23 Crown asset sales, forestry ownership,25 fisheries26 and the Mäori language. A contemporary example is the current Volcanic Inner Plateau (VIP) claim. Such approaches are likely to carry an even greater potential for tension than that which exists already within groups.
21 Tensions are more likely to turn to disputes once assets are transferred to the claimant group. Ideally, the group should be able to resolve its own disputes, but experience has shown that this does not happen and the disputes inevitably reach the general courts.
22 Already, outside the realm of Treaty settlements, the real issues before the courts lie within one of the five areas identified by the Chief Judge, sometimes masked by the way in which the cases have been pleaded: governance, succession and/or membership of a kin group, leadership accountability within a kin group,31 participation of members of a kin group in policy formulation, and the distribution of benefits among members of the kin group.
23 These disputes are not easily resolved under the general law by a judge inexperienced in the tikanga of a particular iwi. (For example, in Te Runanga o Atiawa v Te Atiawa Iwi Authority conflicting evidence as to what constituted the tikanga of Te Atiawa was presented to the Judge.)
24 Disputes are better anticipated, and resolved, the Commission considers, by empowering the settlement group to make rules that are consistent with community expectations, and which enable such disputes to be resolved in a manner that promotes confidence. Additionally, or where the group itself cannot solve disputes, there may be a role for the Mäori Land Court in some capacity.
25 The development of New Zealand scholarship relating to Treaty of Waitangi settlement issues is still at an early stage, but useful information can be derived from the Harvard Project on American Indian Economic Development.
26 The Harvard Project found that tribal decision makers are likely to make better choices than non-tribal decision makers about the future development of the tribal group. Indeed, a strong tribal culture was found to be a resource that strengthened tribal governance. Cultural assimilation is not a prerequisite for economic development.
27 Also, amongst several distinguishing features of successful tribal governance structures identified by the study, two were:
• a governance structure that separates the functions of elected representatives and business managers;
• the ability to settle disputes fairly.
28 Each settlement group will need, at the least, to be able to make decisions in a timely fashion. But the particular needs of each group will differ. Some groups will place emphasis on economic development, others on social development, and yet others may seek a holistic approach to Mäori development.
29 The appropriate degree of interaction between management of the settlement entity and members of the settlement group can only be determined by the group, but reporting on an annual basis should be a minimum requirement.
30 The creation of a suitable settlement entity needs to be planned for early in the settlement process.
31 Evidence suggests that sometimes the creation of the settlement entity is seen as the last hurdle to overcome in achieving settlement of Treaty grievances. Planning and consultation may often be inadequate. Commentators have noted:
A common aspect of the settlement processes and outcomes is disagreement as to the basis for representation (by marae, hapü, or otherwise) within the governance structure and the mechanisms for accountability ... Many groups complain that no funding or information is given to ‘minority’ groups with which to formulate and propose alternative governance models. As a result, iwi members are often presented with a single proposed model, developed with or without consultation (and sometimes inconsistent with consultation undertaken). Because the development of the governance body is generally the responsibility of the tribal negotiators, the settlement package and the governance body are usually presented to the tribe as co-requisites.
32 The Crown contributes towards costs in order for the settlement group to complete the ratification of both the Deed of Settlement and the settlement entity. While claimants have a choice as to where this funding is allocated, they generally organise consultation hui and postal voting on both issues at the same time in order to minimise costs.
33 While the group has a choice in how to organise these matters, it may be that the settlement entity is so important that the two issues, of ratification of settlement entity and Deed of Settlement, are better kept as distinct as possible. The Commission considers that more involvement from government agencies would be useful in this respect. As the Mäori Affairs Select Committee recently noted:
The Office of Treaty Settlements considers it is for the claimant community to determine how the ratification process is carried out. Given that the conduct of the ratification process can affect the durability of settlements, we have reservations about the wisdom of this hands off approach. We consider care should be taken to organise the communication hui so that major marae within the settlement area are not excluded from the process. Also, where groups have expressed concern about the settlements, special care should be taken to ensure they have full opportunity to participate.
34 The cost of establishing the current settlement entity of choice, the trust, can be extremely high because the trust deed must be fitted to the circumstances of the particular group. The approval of the form of the deed can also call for considerable work by OTS.
35 The Office of Treaty Settlements estimates that to review a single settlement entity, as well as assigning two to three senior analysts to the project over a period of months, it spends between $20,000–$30,000 on legal advice. The cost to claimants, who lack the institutional experience of OTS, can be expected to be two to three times higher.
36 In the case of settlements concerning relatively small assets, the Commission is concerned that the costs to beneficiaries might reduce significantly, and could even negate, the benefits to which they are entitled.
37 If a single model entity was available, which could receive settlement assets, costs should be a lot lower, because a standard form entity is less likely to be time consuming to adapt than an entity that has to be created specifically.
38 The taxable status of settlement entities also needs to be clarified given the importance that both the Crown and Mäori attach to the issue, as does the need to achieve a commercially effective vehicle.