New Zealand Law Commission
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A1 THIS APPENDIX considers the Treaty settlement process and outlines the
two different (though complementary) processes that are currently used by kin groups and the Crown to resolve grievances emanating from alleged breaches of the principles of the Treaty of Waitangi.
A2 The appendix also describes the approval processes of both the Crown and Te Ohu Kai Moana (TOKM) with respect to settlement entities. Under current practice it is necessary for claimant groups to comply with the approval processes before assets can be transferred to a settlement group to settle Treaty grievances. The policies of TOKM tend to be more prescriptive than the Crown, with an additional point of departure being that, after some amount of litigation, it has been decided that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 requires TOKM to deal with ‘iwi’ in their historical sense.
The Waitangi Tribunal
A3 The first major step on the part of the Crown to redress breaches of the principles of the Treaty came with the creation of the Waitangi Tribunal, which is a permanent commission of inquiry. The principal functions of the Waitangi Tribunal include:
• inquiring into claims made by or on behalf of Mäori that allege breaches of principles of the Treaty of Waitangi; and
• to make (predominantly non-binding) recommendations to the Crown if those allegations are sustained.
A4 Originally, the Waitangi Tribunal only had jurisdiction to inquire into and make recommendations on Crown acts or omissions dating from the commencement of the Treaty of Waitangi Act in 1975. However, in 1985 this jurisdiction was extended to allow inquiry into claims arising from alleged Crown breaches dating from 6 February 1840, the date of the signing of the Treaty.
A5 Any Mäori may submit a claim to the Waitangi Tribunal. When a claim is lodged, the Registrar checks the claim against section 6 of the Treaty of Waitangi Act 1975 and if the requirements of that section are satisfied, the claim is registered and assigned a “Wai” number. Once this is completed the Crown and others with an interest in the claim are notified. The Waitangi Tribunal also identifies any claims that should be heard together.
A6 After the claimants’ research is filed, the Waitangi Tribunal undertakes research and a casebook is compiled containing all the research to be presented to the Waitangi Tribunal during its inquiry. The hearings are timetabled and begin with evidence and submissions presented by the claimants, followed by the Crown and others with an interest in the claim. Subsequent to the hearings being completed the Waitangi Tribunal issues a report, where:
... [t]he Tribunal’s task is to decide, whether, on the balance of probabilities, a claim is well founded. If the Tribunal decides that a claim is well founded, it may recommend to the Crown how the claimants can be compensated, how the harm they are suffering can be removed, or how similar harm can be prevented from happening in the future.
A7 Depending upon the nature of the claim and the conclusion reached in the report of the Waitangi Tribunal, settlement negotiations may then begin between the claimants and the Crown. Alternatively, the Waitangi Tribunal may hold a remedies hearing where the parties involved have an opportunity to recommend to the Waitangi Tribunal what actions should be undertaken to remedy the breach. If such a hearing is held, the Waitangi Tribunal issues a further report, after the hearing, detailing its recommendations.
A8 Mäori allegations of historical breaches of the principles of the Treaty have focused mainly on the following issues:
• Pre-1840 land purchases “old land claims” and “surplus lands”
• The New Zealand Company Purchases
• Pre-emption waiver purchases, and “surplus lands”
• Pre-1865 Crown purchases
• War and land confiscation (raupatu)
• The introduction and operations of the Native Land Court.
A9 To date, most claims to the Waitangi Tribunal have arisen from these historical breaches of the Treaty. However, there are a number of claims relating to more contemporary cultural issues like the protection of Mäori intellectual property rights (Wai 262).
A10 At any stage after the lodgement of a claim with the Waitangi Tribunal, the claimants are able to initiate direct negotiations with the Crown. If the claimant groups decide to negotiate directly with the Crown the Waitangi Tribunal will usually suspend further consideration of the claim while negotiations are in train, unless the parties have agreed otherwise. If negotiations fail, the Waitangi Tribunal will usually resume consideration of the claim.
A11 The Crown’s current policy is not to negotiate while the Waitangi Tribunal process is continuing. The Crown may decide to wait until the Waitangi Tribunal has reported before it embarks on negotiations. While the Waitangi Tribunal’s findings will inform the parties, neither party is bound to follow those recommendations in negotiating a settlement.
Direct negotiations with the Crown
A12 Negotiations with the Crown are undertaken in four distinct phases:
• agreement to begin negotiations;
• ratification and implementation.
Agreement to begin negotiations
A13 A prerequisite for entering negotiations is the registration of a claim with the Waitangi Tribunal. Direct negotiations begin when the claimant group asks either the Office of Treaty Settlements (OTS) or the Minister in Charge of Treaty of Waitangi Negotiations to begin negotiations.
A14 If the claimants proceed directly to negotiations they must provide the Crown with detailed research that outlines every Crown action alleged to have breached the Treaty, and that demonstrates the link between the acts and/or omissions of the Crown and the resulting damage or harm done to the claimants’ tipuna.
A15 Negotiated claims will often proceed at an iwi level, in order to be able to obtain a wider range of reparation and to address the past breaches of the Treaty. However, within such claims there is room for the interests of smaller groups (such as whänau, marae or hapü) to be taken into account. The ability to settle on an iwi or hapü basis will often turn on the way in which the particular kin group has organised its affairs, or on the formal legal personality and organisation of the claimant group.
A16 A major part of the negotiation is the acquisition of a mandate for negotiators from their kin group to undertake negotiations on their behalf. The Crown has in place a process with which the claimant negotiators must comply, the end product of which is a Deed of Mandate. As well as the Office of Treaty Settlements, Te Puni Kökiri (TPK) is involved in advising the Crown in the mandating process. Once a mandate has been established and the Crown has recognised it, the Crown will consider how to provide a reasonable financial contribution to the negotiation of the claim.
A17 A document is developed between the Crown and the claimant group called the Terms of Negotiation. This document sets out the scope and goals of the negotiation process. While it is the Crown’s preference to settle all historical claims during negotiations, in the past some claims have been excluded from negotiations to be dealt with at a later date by the parties or by the Waitangi Tribunal. The document may include a timetable for negotiations. Options for reparation are addressed with the claimants providing the Crown with specific details of what redress is sought and what Treaty breaches they are seeking to be formally recognised. Ministers are required to approve the Crown Negotiating Brief before the process can continue.
A18 Once both the Crown and the claimant group have been authorised to conduct negotiations those parties commence formal negotiation with the object of achieving, in the first instance, general agreement, which may be formalised in a document called a Heads of Agreement or an Agreement in Principle (the former being a more detailed document than the latter). This agreement is drafted in the form of an offer from the Crown to ensure that, after the consultation that follows, the claimant group is aware of the terms negotiated on their behalf.
A19 Once the kin group has approved a Crown offer, a formal document detailing all the settlement issues is prepared and executed: this is called the Deed of Settlement. This Deed requires Cabinet approval before it can be finalised by the Crown and put to the kin group for ratification by the claimants. Once signed by both parties, the agreement recorded in the Deed of Settlement is legally binding.
A20 This agreement usually contains:
• an agreed historical account and Crown acknowledgements, which form the basis for a Crown apology;
• cultural redress; and
• commercial and financial redress to be offered by the Crown.
Ratification and implementation
A21 The proposed Deed of Settlement must be ratified by the claimant group. The Crown will not implement a settlement unless a satisfactory ratification is undertaken by the claimants, which involves the Minister in Charge of Treaty of Waitangi Negotiations approving the process by which the ratification is to take place, and Cabinet deciding that a sufficient majority of the claimant group has approved the settlement.
A22 The purpose of the ratification process is two-fold. From the perspective of the claimant group, it ensures that members of the claimant group are adequately informed of the proposed settlement and consent to their representatives concluding a formal settlement. From the perspective of the Crown it provides assurance that members of the claimant group have, in fact, been informed of the terms of the proposed settlement and that they have consented to it. Consent from members of the claimant group may be obtained through hui and/or postal ballot.
A23 Once the results of the process are made known to the Minister in Charge of Treaty of Waitangi Negotiations, and after the Cabinet is satisfied with the results of the process, the Crown and the claimants sign the Deed of Settlement that then becomes binding.
A24 Once the Deed of Settlement is signed:
... [t]he members of the settlement group must also agree on a way of ‘holding’ and managing the lands, cash and other agreed redress offered to settle their claim. This may form part of the claimants’ ratification process. These arrangements must be finalised before the Crown hands over the settlement assets.
A25 Often an Act of Parliament will need to be passed before all of the settlement can be implemented, though many parts of the agreement will be in force once ratification and signing has concluded. The Waitangi Tribunal will be made aware of the settlement and will make no further inquiry into the claim. The Office of Treaty Settlements then oversees the implementation of the agreement on behalf of the Crown with any changes to the agreement requiring consent from both sides.
A26 Usually, while the legislation is progressing through the legislative process, the kin group works with OTS to have a settlement entity developed and approved, with the ratification of the entity needing to take place before the settlement legislation is introduced into Parliament.
A27 The role of the Crown can, generally, be regarded as completed once a grievance has been addressed and settlement funds have been transferred. While the Crown can be seen to have a legitimate interest in the successful operation of settlement entities (in particular, in relation to the delivery of social and economic benefits to Mäori), it is preferable to regard the management of the assets transferred as part of the settlement as being within the exclusive domain of the relevant group.
A28 In approving a settlement entity, OTS has a series of 20 questions that it uses as a guide in determining whether or not an entity adequately protects the membership of the kin group. These questions are based around themes of governance, representation, accountability and transparency as set out below:
(1) What is the proposed Governance Entity and its structure?
(2) How was the proposed Governance Entity developed?
(3) What is the relationship between the proposed new Governance Entity and existing entities that currently represent me?
(4) How do I know if I am a beneficiary of the settlement and that I can participate in the Governance Entity?
(5) How do I have a say in who the representatives on the Governance Entity will be?
(6) How often and how will the representatives change?
(7) What are the purposes, principles, activities, powers and duties of the Governance Entity and the bodies accountable to it?
(8) Which decisions will I have a say in?
(9) How can I participate in the decisions of the Governance Entity?
(10) Who will manage the redress received in the settlement?
(11) Who will determine what benefits I get?
(12) What are the criteria for determining how benefits are allocated and distributed?
(13) How will the people managing assets and determining benefits be accountable to me?
(14) What are the rules under which the Governance Entity and the bodies accountable to me operate?
(15) Are there any interim governance arrangements in the period between the establishment of the Governance Entity and the date that the settlement assets are transferred? If so, what are they?
(16) How will the structure and the rules of the Governance Entity and the bodies accountable to it be changed?
(17) What are the planning/monitoring/review processes for decisions?
(18) What if I don’t agree with a decision made by the Governance Entity?
(19) How often will accounts be prepared and audited?
(20) Will I receive information about decisions that affect me? How? How often?
A29 A more prescriptive approach is taken by TOKM to approval of settlement entities, and its statute requires TOKM, to deal with “iwi” rather than with a claimant “group”.
A30 Te Ohu Kai Moana literature identifies a number of kaupapa to be set out in the constitution of any iwi organisation to which it allocates assets: viz
• Kaupapa 1: The constitution must acknowledge that Iwi organisation’s obligation to act for the members of the iwi.
• Kaupapa 2: Membership, expressed as the right to participate in choosing representatives on the Iwi organisation, is a right open to all those who affiliate to the Iwi by whakapapa.
• Kaupapa 3: Voting rights in Iwi elections and matters relating to constitutional amendments are confined to those who affiliate to the Iwi by whakapapa.
• Kaupapa 3(a): All issues relating to whangai should be entirely determined according to the tikanga of each Iwi. Accordingly the matter of whangai voting rights remains at the discretion of each Iwi organisation.
• Kaupapa 4: Individual Iwi members shall have the right to request and exercise a postal vote in any process that elects representatives to the Iwi organisation, or considers amendments to the constitution.
• Kaupapa 5: All Iwi organisations shall establish and maintain a register of iwi members.
• Kaupapa 6: The Iwi organisation must have an Annual General Meeting at which it will provide to iwi members:
• An annual plan
• An annual report
• Annual audited accounts
• Kaupapa 7: Constitutional amendments to change any of the Kaupapa and Policies set by Te Ohu Kai Moana require at least a seventy-five percent [75%] majority of votes cast to be carried.
A31 More specific policies are also articulated by TOKM to give effect to the above kaupapa:
• Policy 1: A recommended minimum 15 working days’ notice in the appropriate media must be given before Iwi AGMs, and elections or hui to consider constitutional amendment.
• Policy 2: Notice of elections shall call for nominations in writing to be received at the Iwi office at least five working days before the hui or election.
• Policy 3: Iwi organisations are required to advertise any processes involving elections or proposed constitutional amendments, and all AGMs, in any area containing significant concentrations of their members.
• Policy 4: Constitutions shall state the period of office of elected representatives, that period not to exceed five years.
• Policy 5: If an Iwi organisation decides to provide for alternates to the elected representatives, each alternate must be elected by, and as part of, the same process that elected the particular representative onto the Iwi organisation.
• Policy 6: Iwi organisations shall make a copy of their constitution available for viewing by Iwi members at their Iwi office in normal office hours, and available by post on request, on a cost recovery basis if necessary.
A32 Further, TOKM demands a structural separation between asset management and governance. For instance, the role of the representative iwi organisation to provide strategic governance over the separate asset management body must be included in the constitution of the iwi organisation, with elected representatives to the iwi organisation being able to comprise only one-third of the directors on the asset management body. Additionally, TOKM stipulates that the representative iwi organisation must have the power to amend the constitution of the asset management body with the 75 per cent majority as set out in the representation policy.