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Treaty of Waitangi grievances[1] are matters that Maori,[2] the Crown,[3] the general public and political parties[4] want, for varying reasons, to see resolved and settled. The current settlement processes provide that Maori enter Direct Negotiations (“Negotiations”) directly or after a Waitangi Tribunal (“Tribunal”) hearing. This process has been evolving since 1975, with both Maori and the Crown continuing to examine the processes:
The policy framework continues to be examined critically by both claimants and the Crown to ensure it is working to meet the aims of the settlement process. It will continue to be improved and refined ...[5]
This article continues the critical examination of settlement processes by looking at the process of Negotiations currently used for the resolution of Treaty of Waitangi grievances. The primary purpose of this article is to examine aspects of the Negotiations process in contributing to resolving Treaty claims.[6] It is also my intention to recommend required principles for the development of a more effective claims resolution process. It is my contention that the Negotiations process has limitations, deficiencies and inadequacies for the resolution of Treaty claims.
An understanding of the Tribunal is required in order to understand the context of Negotiations. The Tribunal has been recognised as the first stage in the development of Treaty settlements, with Negotiations being the second stage.[7]
Since 1975 Maori have taken their claims for dispossession and alienation to the Tribunal. Since the early 1990s Maori have been able to negotiate the settlement of claims directly with the Crown. These two non-Court processes were instigated by the New Zealand Governments of the time and progressed through local political pressure and international influences. Wickliffe recognised the international dynamics when stating:
It would be a mistake to believe that Governments and the courts have always acknowledged the need to protect indigenous rights and settle indigenous claims fairly and equitably. The movement towards the recognition of indigenous rights has occurred because the countries concerned have been encouraged to change their approach since the establishment of the United Nations and the alignment of indigenous rights issues with human rights and equality.[8]
Some have commented that the Tribunal was a political response to increased Maori nationalism[9] while others have hoped that the Tribunal would be the vehicle by which justice might at last be done under the Treaty.[10] A recent Crown document on the settlement of claims notes:
Dissatisfaction with such settlements and lack of action by the Crown on outstanding grievances led to the increasing calls during the 1960s and early 1970s for a forum where Maori claims against the Crown could be heard.[11]
The Tribunal was set up in 1975 with the following functions: to hear claims by Maori against the Crown concerning breaches of the principles of the Treaty of Waitangi, to determine the validity of these claims, to make recommendations to the Crown on redress for valid claims, and to examine and report on any proposed legislation referred to the Tribunal by the House of Representatives or a Minister of the Crown.[12] The Chairperson of the Tribunal at the time noted:
In carrying out those functions, the Tribunal has exclusive authority, for the purpose of the 1975 Act, to determine the meaning and effect of the Treaty of Waitangi, as embodied in the English and Maori texts, and to decide upon issues raised by the differences between them.[13]
With clear and precise statutory purposes the Tribunal has been seen to play a role beyond the inquiry and reporting of historical and contemporary treaty claims.[14] The Tribunal has been part of a process of resolution and reconciliation.[15] The Waitangi Tribunal’s stated vision supports the move towards reconciliation. It states:
Having reconciled ourselves with the past and possessing a full understanding of the Treaty of Waitangi, Maori and Non-Maori New Zealanders will be equipped to create a future for the two peoples as one nation.[16]
In order to equip New Zealanders to create a future as one nation, part of the Tribunal’s role is to educate people and enhance awareness of the Treaty of Waitangi. At times, although the political and legal prominence of the Tribunal has generated some understanding of the role of the Tribunal, understanding of its processes and Treaty grievances has been misconceived by many New Zealanders. The Tribunal therefore takes on a function of laying out history and exposing what has happened to provide an adequate base for people to talk about what can be done by way of reparation.[17] This educative role also serves the function of explaining the Maori world to a predominantly non-Maori society.[18] Through its hearings and reports, the Tribunal has examined New Zealand’s historical past and presented its findings to Maori and non-Maori.
The Treaty of Waitangi Act 1975 referred to a Tribunal and provided for individual tribunals to be established for the purpose of hearing claims.[19] When claims come to hearing the Tribunal operates through these individual tribunals.[20]
There is some misunderstanding in relation to the Tribunal in that people think that it operates as a separate Court. Instead, the Tribunal operates as a Commission of Inquiry and, like most Commissions of Inquiry, it is not a Court of Law. The Tribunal inquires, but it does not decide issues between parties and it does not adjudicate. Its reports do not have legal effect in the way in which Court judgments do; it can conduct hearings but these hearings are not judicial proceedings; it is not required to follow the rules of evidence applicable to civil litigation; and it is not entitled to make investigations outside the scope of the specific Inquiry at hand.[21]
Once a claim is lodged, the Tribunal process follows five stages. The first stage is where research is undertaken by the Tribunal, the Crown Forestry Rental Trust[22] or claimants themselves.[23] The research will form the basis of the evidence to be presented at the third stage, being the hearing stage. The second stage is where prior to a hearing the Tribunal carries out a five-step judicial-conference approach to ensure that all issues for consideration at the hearing are clear and ready to be heard. The judicial-conference approach also seeks to have claims heard and reported more quickly than has been the case in previous Tribunal claims. The steps to this process, each marked by judicial conferences, are as follows:
1. An early conference sets out a district boundary and establishes which claimants are going to be heard.
2. The research for the casebook is defined and a dead line set for the completion of all research reports.
3. All claimants and their counsel, assisted by historical experts, are required to file comprehensive and fully particularised statements of claim. These statements establish the scope and nature of the grievances to be heard.
4. The Crown is required to respond to the statements of claim. The Crown should give advance warning of its stance on the issues raised. It should also indicate points of agreement and commonality between the parties, where the Crown concedes to matters in the claimants' case, or where it disagrees.
5. Before hearings commence, another judicial conference will be held. This conference will set out the hearing programme, specifying which witnesses will be heard. Parties are encouraged to cooperate with one another to reduce unnecessary repetition in their cases. The length of time claimants spend in hearing is no longer significant,[24] but the quality of their submissions is.[25]
The Tribunal hearings usually take the form of a series of week-long hearings where both claimants and the Crown may give evidence to the Tribunal. The fourth stage is the release of the Tribunal report. The report sets out:
... whether or not the claims are well founded. It makes recommendations on how relief might be provided. A typical recommendation if a claim is well founded is that the claimants and the Crown negotiate a settlement.[26]
At this point claimants may enter into negotiations with the Crown in the Negotiations process. If Negotiations are not successful then the claimants may return to the Tribunal for a Remedies hearing, the fifth stage, where claimants and the Crown present detailed submissions as to what they perceive to be appropriate remedies for the claim. The Tribunal will then make detailed recommendations on redress.
Whatever the recommendations of the Tribunal, the claimants will need to negotiate, with the Crown, a resolution to their claim. These negotiations are referred to as Direct Negotiations.
The New Zealand Government originally formulated the Direct Negotiations process in the early 1990s. The process was part of the Crown settlement policy which had been developing since 1975.[27] Since 1990 the Crown’s Proposals for the Settlement of Treaty of Waitangi Claims have been developed, changed and modified[28] to a situation where the Crown recognises that its aims for Direct Negotiations for settlements of Treaty grievances are:
1. To negotiate a fair, comprehensive, final and lasting settlement of all the claims of the claimant group for breaches of the Treaty up to at least 21 September 1992;
2. To reach a settlement that restores and increases the mana and tino rangatiratanga of the claimant group and will restore and increase the honour of the Crown; and
3. To reach a settlement that provides a basis for a new and continuing relationship between the claimant group and the Crown based on the principles of the Treaty of Waitangi.[29]
Further, the Government in July 2000 adopted six principles to guide it in negotiating settlements of historical claims under the Treaty of Waitangi. These principles in summary are:
1. Good Faith – The negotiating process is to be conducted in good faith based on trust and cooperation towards a common goal.
2. Restoration of relationship – The strengthening of the relationship is an integral part of the settlement process and will be reflected in any settlement.
3. Just Redress – Redress should relate fundamentally to the nature and extent of breaches suffered. Existing settlements will be used as benchmarks for future settlements where appropriate.
4. Fairness between claims – There needs to be consistency in the treatment of claims.
5. Transparency – The Government will give consideration to how to promote greater understanding of the issues.
6. Government-negotiated – The Treaty settlement process is necessarily one of negotiation between claimants and the Government as the only two parties who can, by agreement, achieve durable, fair and final settlements.[30]
The Office of Treaty Settlements (“OTS”) negotiates the settlement of all historical Treaty of Waitangi claims on behalf of the Crown.[31] OTS also manages the implementation of Treaty settlements, that is, the way in which the settlements are to be actioned. Claims need to be lodged with the Waitangi Tribunal before OTS can consider them. Once a claim is lodged, claimants can seek Direct Negotiations straight away, or may choose to have their claims heard by the Tribunal before entering negotiations.[32]
The Direct Negotiation of Treaty claims can be seen as a series of four steps. The first step has been appropriately named “Preparing a claim for negotiations”. Claimants seek Direct Negotiations, and the Crown will agree or not agree to enter into Negotiation after assessing the validity of the claimant’s claim. Most claimants prove their claim via the Waitangi Tribunal. There are certain aspects, such as confiscation, which the Crown readily accepts as breaches of the Treaty. The Crown also assesses whether the claimant group and claim meet the criteria for comprehensive and iwi-level negotiations. Further, the group must show that Negotiators are mandated.[33] The decision to accept or reject a group’s mandate is left to the Minister in Charge of Treaty Negotiations and the Minister of Maori Affairs.[34]
The second step is referred to as “Pre-negotiations”. The aim of this step is for the Government and the claimants to prepare for formal negotiations. At this stage the Crown decides how much funding it will provide to help the claimant group with the cost of negotiations.[35] Funding is normally linked to milestones so that once a claimant group reaches certain milestones they receive funds. Both parties then look at terms of negotiation to be set out in Negotiation Briefs. A number of Crown terms are non-negotiable. In a comprehensive report prepared by the Office of Treaty Settlements entitled Healing the Past, Building a Future – A Guide to Treaty of Waitangi Claims and Direct Negotiations with the Crown, it was clearly stated that:
Each claimant group negotiates the wording of their Terms. However, parts of the Terms outline the Crown’s fundamental approach to Treaty settlements, and negotiations can only proceed if the claimant group accepts that this is the Crown’s approach.[36]
The range of matters that claimants must accept include inter alia:
(a) to settle all of the claimants’ historical claims arising from Crown actions in breach of the Treaty, statute, and common law (including claims arising from aboriginal title);
(b) not to pursue the claims by other means (for example, through a Waitangi Tribunal hearing or in any Court of law) while in Direct Negotiations;
(c) that after a settlement has been agreed and ratified, any Treaty of Waitangi memorials placed on the titles of properties within the claim area will be lifted;
(d) negotiations will be conducted in good faith;
(e) negotiations are conducted in private and remain confidential, and media statements will only be made when the parties agree; and
(f) negotiations are “without prejudice” (that is there is no admission of liability; also neither party is bound until the Deed of settlement is signed and they can go back to legal proceedings if negotiations break down).[37]
What is left to negotiate? The Crown’s requirements for negotiations are comprehensive and leave only administrative matters to be negotiated, such as where, when and how often negotiation meetings will be held.
It is the Crown’s view that, to start the formal negotiations, the Crown and the claimant group both need to be able to discuss particular options for redress. They need to prepare for these discussions by gathering information about what is wanted (by claimants) and what is available (from the Crown). Once the Crown has some idea about the most important wishes of the claimant group, the Crown consults with other government departments about the types of redress that may be available to settle the Treaty claim. This is called the Crown Negotiating Brief. Ministers must approve the Crown Negotiating Brief.[38] The Crown negotiators can then propose settlement options for the claimants to consider.
The third step in the four-step process is termed “Formal Negotiations”. During negotiations, the Crown and claimant representatives put forward their proposals for settling the claim and try to reach an agreement. The Crown’s proposals for redress will be within the limits of its approved Negotiating Brief. The claimants put forward their proposals based upon what they have prepared in pre-negotiations. If there is broad agreement, the discussions concentrate on the details of those proposals.[39] If negotiations are successful, parties will proceed to draft and finalise a Deed of Settlement, which then needs to be approved by both Cabinet and the claimant group’s constituents.
The last step in the Direct Negotiation process is labelled “Ratification and Implementation”. This step involves claimants and the Government obtaining support for the Deed of Settlement. The claimants need to obtain enough support for the Deed to satisfy the Crown before it will proceed to implement settlement legislation.
This step also requires the claimant group to agree on a way of holding and managing lands, cash and other resources that they will acquire through the settlement. Although the Crown claims that it is not its wish to tell groups how to manage their own affairs, it has set criteria for governance structures with which groups must comply before the transfer of any settlement assets occurs. The Crown’s expectations of claimants are clear:
The Crown must be sure that the claimant group has approved a governance structure that:
adequately represents all members of the claimant group,
has transparent decision-making and dispute resolution procedures,
is fully accountable to the whole claimant group.[40]
Although it is my view that the Direct Negotiations process is far from perfect or even acceptable, I recognise that the process is some attempt to:
- remove the sense of grievance,
- [achieve] fair, comprehensive, final and durable settlement[s] of all historical claims of the claimant group,
- provide a foundation for a new and continuing relationship between the Crown and the claimant group, based on the principles of the Treaty of Waitangi.[41]
A positive step towards the reconciliation of the relationship between Maori and the Crown is the acknowledgment that grievances exist and need to be addressed. The Crown’s aims and objectives of the Direct Negotiation process are about redressing Maori grievances and the economic and social disparities between Maori and non-Maori, and providing an economic base for Maori future development. The process, although faulty in many respects, is nonetheless an acknowledgment by the Crown that there are important matters to be determined.
The Direct Negotiations process is quicker than the Tribunal process for the Crown and Maori claimants in achieving settlement and resolution of claims. The process enables claimants the option of dispensing with the need to take their claims through the Tribunal. The comment has been made that the Crown preference is for Direct Negotiation. Many MPs wanted:
...the process to be completed quickly. To this end, they wanted claims settled where possible by direct negotiations between the claimants and the Crown, without having to go through expensive and protracted Tribunal hearings.[42]
It is accepted that many groups and especially Maori want to see Treaty grievances settled as quickly as possible.
It is also acknowledged that the Direct Negotiations process is working in terms of settling claims. According to the Office of Treaty settlements, fourteen claims have been settled and approximately $594.8 million has been allocated in settlement redress.[43]
In my view the Direct Negotiations process is unacceptable as a process for the resolution of Treaty claims. It is true some Iwi have seen the benefits of settlements achieved through Direct Negotiations and have settled their claims.[44] However, I perceive major negative aspects within the process.
In 1994 the Crown published the Crown Proposal for the Settlement of Treaty of Waitangi Claims and proceeded to meet with Maori groups throughout New Zealand to discuss the proposal. This proposal was the result of three years’ work by Government officials.[45] Approximately 2077 submissions relating to the proposals were submitted to the Crown.[46] Many of the submissions categorically rejected the Crown’s proposals.
Of the 2077 submissions received, approximately 869 were cards which rejected the Proposals as flawed because of their unilateral development; the fiscal envelope as unjust; and recommended re-negotiation with Iwi.[47]
The rejections outlined in the submissions were made on two levels. At one level, there was opposition to the Crown’s proposal as it was conceived and developed in a unilateral manner by the Crown.[48] There had been a total lack of consultation with Maori regarding the development of the proposals. Maori had not been involved at all in the planning or design of the Crown’s proposals.
On a second level the rejections focussed on the Crown’s lack of commitment to partnership and the unilateral approach planned for the settlement process.[49] The Crown proposed that it would make unilateral decisions in a number of steps within the settlement process.
Further opposition to the Government’s policy was expressed at a hui called by Sir Hepi Te Heuheu in January 1995.[50] The hui expressed a number of concerns about the Government policy including inter alia:
The government’s proposals had been developed in a climate of secrecy without any consultation with the Maori Community.
They were seen as a unilateral declaration of how claims would be settled.
The bulk of the settlement principles were seen as designed to protect the government and provide assurances for the general populace. They did not reflect a primary focus on justice as a means of remedying injustices of the past. Most noticeable to the hui was the near absence of the Treaty of Waitangi from the settlement principles.[51]
Durie’s observations of the situation were summarised as follows:
What we seem to have is a government deciding what the process will be, what the negotiating structure will be, setting the terms, then deciding who it will deal with and how it will deal with them.[52]
Kelsey, when discussing the Government’s proposal for the settlement of claims which included a fiscal cap,[53] noted:
A genuinely Treaty based settlement would involve dialogue between sovereign representatives of the Crown and Iwi on terms of parity, each of whose constituencies would have the right to mandate their own representatives in their own way. Instead Pakeha government is claiming the right unilaterally to decide what the Treaty means; what the process will be used to settle grievances; what is a reasonable outcome on a take it or leave it basis.[54]
While the overwhelming Maori rejection of the Government’s proposal was a blow to the Government of the time, it did not prevent the Government from continuing with the implementation of its policy, without any substantial changes.[55]
The unilateral approach by the Government for the introduction of the Direct Negotiation process has continued, with changes to the process. In July 2000 the Government announced changes to the settlement process with the adoption of a “principles framework”.[56] Further, the Minister in Charge of Treaty Negotiations announced moves to streamline Treaty Settlements in February 2002.[57] Both changes have been implemented without consultation with Maori.
The process for Negotiations has been framed and changed in a unilateral manner by one party to the Negotiations. It is difficult to see how a process aimed at achieving a better relationship between Maori and the Crown will be successful when the process to achieve this has been imposed on Maori, rejected by many Maori, and changed without any input from Maori.
Where the Direct Negotiations process is most flawed is in the non-negotiable aspects of the process. Negotiation denotes bargaining with a view to reaching agreement. Hooper noted:
At its best, negotiation is a creative process in which the parties involved in an issue discuss their positions, needs and interests in order to find a positive, realistic and wide ranging solution.[58]
When we think of negotiation, words such as compromise, bargaining, competition and cooperation come to mind.[59] However, there is a lack of negotiation in the Direct Negotiations process. The Government has set the procedures to be followed from step one to four. This is not negotiable and as stated above was essentially imposed on Maori.
The Government has set the total pool of money that it is prepared to spend. This means that, once the first claim is settled, other claims that follow are not negotiated on the basis of loss of land or loss of lives but on relativity to other claims.[60] The Tainui claim was negotiated in relation to the Sealords deal. Other claims such as Ngai Tahu and Ngati Awa have been negotiated in terms of Tainui. Ward noted:
Graham apparently considered that the settlement was not for $170 million as such, but rather 17 percent of whatever total sum the government allowed. He therefore agreed to write into the settlement the provision that, should the $1 billion ceiling be raised over the next 50 years, Tainui would always get 17 percent of the additional amount.[61]
While the current Labour Government has abolished the fiscal cap,[62] the relativity clauses in the Tainui and Ngai Tahu settlements mean that other settlements will surely be negotiated in relation to those claims. The language of the fiscal cap may have disappeared from Government policy but the actions of settlements within a fiscal cap remain.
Further, the Crown is specific about the claims with which it wishes to deal and in what order. The Crown is also clear about its intention to negotiate historical claims.[63] The Government also decides if a claimant is ready for negotiations and whether the group is mandated to the Government’s requirements. After negotiating a settlement the Government will not proceed with the settlement until it is satisfied with an Iwi’s plan for settlement.
Going through the above steps, the only part negotiations will play in any of the process is how the package, the value of which the Government has already decided, will be composed.[64] Kelsey was critical of the Government proposal for the settlement of claims and questioned whether “negotiations” actually existed in the settlement process.
Where does “negotiation” come in once the settlement process is underway? The Government:
- sets the procedure to be followed,
- sets the total pool of money it is prepared to spend,
- decides whether iwi have proven their grievance,
- selects which grievances have high enough priority to be dealt with,
- sets the price they are prepared to pay for those grievances they are willing to address,
- decides whether a negotiator has a proper mandate to represent a iwi or hapu,
- decides whether the plan for distributing the outcome is acceptable,
- can abolish the ‘bank’ of the Crown-held land earmarked for possible return, at any time.[65]
The process is more in line with “take it or leave it” than negotiation. To package the process as one of negotiation is misleading. The reality is that the process contains very little scope for negotiating a settlement and yet it is supposed to be the process which is important to achieving just, fair and durable settlement.
Macduff acknowledged the importance of the negotiation process in discussing the role of negotiations in a Treaty context:
... what seems equally important – both in terms of the outcomes and with a view to the ongoing relationship of the negotiating parties – is the protection and management of the process of the negotiations.[66]
Certainly the outcome of settlements is important. How those settlements are achieved and through what processes matters are progressed is equally important if negotiated settlements are to be truly fair, just and durable.
The Waitangi Tribunal has been marginalised by the Government’s preference for Direct Negotiations.[67] Claimants are making the decision that they want a quicker path to a settlement. This normally means by -assing the Tribunal and going straight to Direct Negotiations. The Direct Negotiations’ process is preferred by the Government, with many MPs wanting the quick settlement of Treaty claims. It may be asked whether MPs seek just and fair settlements or merely quick settlements, given the comments of Ward who recognised that the marginalisation of the Tribunal has not happened by accident:
Many members of the National government taking office in late 1990 were, at best, lukewarm about the Treaty claims process, and saw the Tribunal as fostering new grievances rather than resolving old ones....Virtually all of them – and many Labour MPs too, in response to their electorates – wanted the process to be completed quickly. To this end, they wanted claims settled where possible by direct negotiations between the claimants and the Crown, without having to go through expensive and protracted Tribunal hearings.[68]
Fleras and Spoonley were of the view that MPs had actually conspired to undermine the Tribunal’s role as a mechanism for justice.[69] With Government attitudes as such it is no wonder that the Government has and continues to under-fund and under-resource the Tribunal.
National Party Member of Parliament Georgina te Heuheu was of the view that the Government was marginalising the Tribunal in an effort to force claimants into negotiations:
... the Government might be trying to create a backlog to force claimants into direct negotiations. But without an independent quasi-judicial body for claimants to turn to the negotiations would be weighted solely in the Government’s favour.[70]
Roberts was also of the view that the preference for direct negotiations resulted in the maginalisation of the Waitangi Tribunal and was also in order that the Government retained full control of the settlement process.
This is clearly in the government’s interest because it has more resources at its disposal in the negotiation process, and will ultimately determine the nature of any settlement and what state assets will be returned. In other words, it keeps the upper hand. ...This latest move can also been seen as a further marginalisation of the Waitangi Tribunal.[71]
It has been noted above that Maori initially rejected the Negotiation process. With the passing of time the Government now appears to have assumed that, with the settlement of some claims and the increase of new claimants looking to settle grievance, Maori have now accepted the Negotiations process. Part of the justification for the implementation of the Negotiation process used by the then Minister of Treaty Negotiations, Douglas Graham, was the fact that the Government was currently in negotiations with claimants,[72] and there were “individual iwi and hapu coming in all the time waiting to get on with the resolution of their particular claim”.[73]
Current reading of the Office of Treaty Settlements’ quarterly report reveals the Government’s perception of acceptance of the negotiation process by Maori:
Since late 1998 there has been an increased level of interest in direct negotiations by claimant groups with 13 groups in the negotiations phase. A number of other groups are seeking a negotiating mandate.[74]
The perception is that, because Maori are participating in the process and have achieved settlements through the process, Maori have accepted the process. This is not so. The first major tribal settlements of Tainui and Ngai Tahu rejected the Government’s policy:
Both Tainui and Ngai Tahu maintained that they had begun negotiations outside of that policy and would continue negotiations on that basis. Both had rejected the policy at consultation hui and said they were not negotiating within the parameters of the government’s new policy.[75]
Groups entering the negotiation process have been categorical that their entry into the process should not be seen as acceptance of the process.
Taranaki tribes were in a similar position when they expressed their willingness to enter into negotiations with the Government. Their claims’ co-ordinator, Peter Adds, made it clear that this was not to be interpreted as acceptance of the Government’s proposal for settling claims, stating that in a very united way they had rejected the policy at a consultation hui.[76]
Maori have no alternative but to enter into negotiations if they are wanting to settle their Treaty claims. Therefore the mere fact that Maori are entering into negotiations cannot be seen as an acceptance of the negotiation process.
The Crown at Tribunal level is one of the parties presenting evidence before the Tribunal and refuting allegations made by Maori claimants. At Negotiation stage it is the Crown that determines what Maori claimants may receive in settlement. Such a situation caused Henare to comment that, in reality, the Government is the judge and jury in its own case.[77] Josie Anderson, now a member of the Waitangi Tribunal, put matters differently but conveyed the same message when she stated:
By whose law does a thief get to steal a car, admit later that he has stolen it, then decide when, how, and what part of the vehicle he will give back to the owner.[78]
An important issue is that settlements must be completed in a fair and just manner. Quick settlements may not necessarily equate to just settlements. The danger is that hurried settlements could lead to further injustices. This was acknowledged by Annette Sykes when she recognised that trying to settle matters cheaply and in a hurry could lead to further injustices.[79] The negative aspects identified within the Direct Negotiations make this process unfair and unjust to the Maori participants of the process.
There is very little argument that the processes should continue to develop and need to be developed.[80] Ward is of the view that, while there have been difficulties with the development of a process for settling Treaty claims, there is a “manageable and effective process taking shape”.[81] In 1995 a publication entitled Treaty Settlements: The Unfinished Business[82] contained a number of articles looking specifically at the developing settlement process.
From the above examination I contend that there are a number of factors or principles which need to be applied within the development of resolution processes for Treaty claims.
I do not intend to propose changes to rectify or improve each of the negative aspects identified above. From a practical and realistic perspective I do not foresee the Crown making major changes to the present processes. It would take a significant amount of lobbying for the Crown to consider major changes to these processes. The following principles I perceive are base-line imperatives in order to avoid the negative aspects of the process identified above. The following factors I have identified are in no particular order of priority or preference.
Maori have not been involved in the planning, establishment or development of the current claims processes. Comments from Denese Henare in regards to Crown Direct Negotiations and also the Waitangi Tribunal reflect this fact:
The partnership set up by the Treaty is not a true partnership in the sense that Maori have not fully participated within the processes to achieve resolution.[83]
In 1994/95 the Crown took its proposal for settlement of Treaty claims to Maori around the country. The resentment to and rejection of the proposal was discussed above.[84] The dominant reason for the rejection of the Crown’s proposal was due to the substance of the proposal and also the unilateral development of the proposal.[85]
For a claims process to obtain some acceptance and approval from Maori, given past experience, it would seem certain that Maori will need to be involved in the future development of the claims process. As a major partner within the settlement process Maori need to be afforded the opportunity to participate in the development of settlement processes. Maori participation in the development of the processes will assist Maori acceptance of the processes.
It needs to be asked why there are both the Waitangi Tribunal process and the Direct Negotiations process. The Maori view and the Crown view differ in relation to why the two processes are necessary. The current processes are dominated by the Crown view.
For the Government the settlement of grievances is part of the reconciliation of the Crown and Maori with a view to bringing better relations between Maori and the Crown. The resolution of historical grievances is a necessary first step towards establishing a healthy and robust relationship.[86] It is recognised that:
The settlement of grievances of the indigenous people arising from colonisation is not an easy task. Yet to ignore valid grievances is not only unjust but leaves unreconciled the relationship between the descendants of the settlers and the tangata whenua. Race relations in such a climate will always be fragile.[87]
Racial harmony is but one reason given by the Government to justify the resolution of historical Treaty grievances. The Government also sees settlements assisting Maori economically. There is the hope that future development will address the many inequalities between Maori and non-Maori in areas such as education, health, housing, employment and imprisonment rates. Recognising that settlements will not by themselves solve Maori social issues, the Government does seek “to provide Maori communities with tangible recognition of their mana and a resource base for future development”.[88]
Others, such as Coates, have viewed the Government’s objective of settlements in a different light. Coates viewed the Government attempts to address historical and legal obligations as merely moves to escape international pressure and condemnation, or to find solutions to the critical problems of the indigenous minorities.[89]
The Waitangi Tribunal has seen the need to address Treaty grievances from a slightly different point of view. In the Waitangi Tribunal Business Strategy 1998 there was recognition that economic benefits from settlements will assist in forming an economic base from which to address some of the negative statistics pertaining to Maori. The Tribunal then proceeded to identify the importance of addressing historical grievances in order to allow Maori to focus on pressing social and economic needs.
The focus on the past grievances is diverting the energies of many Maori away from pressing social and economic needs and is preventing Maori from taking control of their futures. However, it is difficult to move beyond a sense of grievance if that grievance is not acknowledged.[90]
For Maori the resolutions of Treaty grievances are about justice, future survival and self-determination. The settlement of historic Treaty claims for Maori is part of the process towards tino rangatiratanga or self-determination. Williams summarised Maori attitudes to the Treaty resolution processes as follows:
To Maori, their survival as a discrete cultural, linguistic, political, and economic group within New Zealand is the purpose of the process.[91]
Williams, cited by Kelsey, also saw the goals of Treaty claims for Maori as three-dimensional. Williams stated that they:
are a response to current feelings of cultural, economic, and political powerlessness. They are not purely backward looking. They have three dimensions. First, Maori seek to use the claims process to secure the just settlement of historic wrongs. Usually those historic wrongs are argued to have grievously injured the cultural and economic well being of the tribe. Second, Maori seek to use the claims process to protect and enhance their cultural base. That is to affirm and enhance the Maori sense of separate identity. Third, Maori seek to use the claims process as a means to participate in mainstream economic activity. The aim is to secure an economic base to benefit Maori collectively and to ensure their survival as a distinct people.[92]
Maori and the Crown have different objectives and expectations in relation to the claims processes. For a process to be effective Macduff identified that:
as a preliminary point, the issue is simply one of clarifying what the expectations of all the participants are in taking part in this process. [93]
In a critique of the claims settlement process, Coates identified the difference in expectations as the “root problem” within settlement processes throughout the world. Coates argued that “indigenous groups and governments the world over have different goals and are thus talking past one another”.[94]
As I see it the problem is simple enough. While the Crown continues to dominate what the settlements are about, it is highly unlikely that Maori and the Crown will be able to develop the current processes with like purposes and expectations in mind. If the Crown opened its view to include Maori aspirations and expectations, the end result might be surer and swifter. I would anticipate that the processes by which any such settlements are achieved would be markedly different from current processes.
Maori also need to be clear what the “Maori” purpose is. For as long as we have mandated negotiators who sign settlements for something based on Crown-dominated views, this will be an uphill battle. The courtroom litigation regarding the fisheries settlement is proof that Maori are divided by the Crown’s approach.[95]
The current focus of the claims processes is adversarial. The processes accentuate a competitive approach and conflict in shaping the relations between Maori and the Crown.[96] Current settlement processes are inherently confrontational. Parties are involved in a protracted struggle in which participants are galvanised into opposing corners, each seeking to concede as little as possible and gain as much as possible.[97]
A preoccupation with contesting claims has also had the consequences of glossing over the key element in any productive interaction: the managing of a relation in the spirit of cooperative engagement rather than by the letter of the law or terms of a contract.[98]
The settlement processes dominate Maori–Crown relations and are therefore influential in setting the parameters and make-up of the Maori-Crown relationship. If the settlement processes focus on a contest, involving a competitive, adversarial approach, it is no wonder that the Maori-Crown relationship reflects such a situation. This tends to “distract from the possibility of a relationship based on coexistence rather than conflict”.[99]
A reorganisation of the present processes focussing on relationships rather than contestation is seen as a positive move towards racial harmony and better relations between Maori and the Crown. These factors are identified as important outcomes of the settlement process by the Crown, Maori and the Waitangi Tribunal.[100] Fleras and Spoonley assert that:
Pressure is mounting to transcend claims-making as the exclusive model for Maori-Crown relations. The preference is to focus instead on a more flexible approach that emphasises engagement rather than autonomy, relationships rather than rights, interdependence rather than opposition, and power-sharing rather than an elite game of resource re-allocation.[101]
Maori have sought to emphasise a Maori-Crown relationship for many years. Williams in reviewing the articles by Coates and McHugh stated:
All this brings me to the issue of relationships and the strong call in both papers for a shift from full and final to organic agreements which emphasise the ongoing quality of the relationship between the parties rather than the value of the settlement. Without wishing to detract from the importance of that message and the intellectual underpinning that each writer brings to it, the Maori leadership has been saying this for some considerable time now.[102]
The change in focus, from the current competitive adversarial one to a relationship focus, appears essential for developing better relations between Maori and the Crown.
The principles of the Treaty of Waitangi are central to the Waitangi Tribunal process. However, the Treaty principles are not mentioned in either the Direct Negotiations process itself or the Crown’s principles for achieving the settlement of Treaty grievances.[103] Within a process for the settlement of Treaty grievances it seems odd to say the least that the process itself is not based on the Treaty or Treaty principles at a minimum. Further, the Treaty principles have not appeared in settlement documents.[104]
Maori concerns regarding this issue were raised in 1995. The Government’s disregard for the principles of the Treaty, and what Durie referred to as the “implicit discounting of the Maori version of the Treaty”,[105] saw the Government moving “away from any recognition of the Treaty as a broad guide to future national development”.[106] Once again the Crown views outweighed Maori views.
With the Treaty of Waitangi playing such an essential part in the formation of the relationship between Maori and the Crown, it is not surprising that Maori called for the principles of the Treaty of Waitangi to be included in any proposal to settle Treaty claims.[107]
Support and recognition of the importance of the Treaty came from Sir Geoffrey Palmer in his discussion regarding Treaty settlement processes, where he stated:
Surely the main business must be, as it always had been, to make progress under the Treaty of Waitangi to ensure that Maori grievances are addressed and that justice is done. Certainly we must look forward as Chief Judge Durie said yesterday. But let us keep the focus on the Treaty.[108]
The Treaty is about the past but has also always been about the future.[109] The Treaty is also about the relationship between Maori and the Crown. I addressed the need to change the focus of the claims process to a concentration on relationships.[110] The Maori-Crown relationship will need to be based on the Treaty. It therefore makes sense that the development of the current claims processes be based at least on the Treaty relationship as identified in the Treaty.
Through an examination of the positive and negative aspects of the Direct Negotiations for the resolution of Treaty claims, I have identified a number of elements which will assist the progress of settlements and resolutions. There are however major impediments that continue to hinder the settlement processes.
From this examination I have proposed some fundamental shifts that are necessary for the improvement of relations between Maori and the Crown. The development of a more equitable Treaty relationship is an imperative of the claims settlement process.
[*] B.Soc Sci, LLB (Hons), LLM , Lecturer in Law, University of Waikato, is of the tribal groups of Ngati Makino, Ngati Pikiao, Ngati Awa and Ngati Maru.
[1] Claims by Maori that they have been prejudicially affected by legislation, policies, acts or omissions of the Crown inconsistent with the principles of the Treaty of Waitangi.
[2] Prior to European contact, the word Maori simply meant normal or usual. There was no notion of a dominant Maori hegemony. There was no concept of a Maori identity predicated around cultural or national semblance. Instead, the distinguishing features, which demarcated groups, were mainly attributed to tribal affiliations and the natural environment. For further discussion refer to Meredith, P Understanding the Maori Subject (unpublished paper, 1998) and Durie, M Te Mana, Te Kawanatanga: The Politics of Mäori Self-Determination (1998).
[3] For the purposes of this article the words Crown and Government will be used interchangeably, recognising that “[t]he Crown refers to the executive arm of Government and symbolises the historical authority of the sovereign as head of the state. While the Crown is a convenient way of referring to one party involved in the settlement negotiations, in practice there are a number of agencies and positions within the Crown that are significant in the Treaty settlement process” (Office of Treaty Settlements at http://ots.govt.nz/crown.htlm).
[4] For further discussion on political parties’ Treaty policies see “Parties show diverse range of policies” Waikato Times, 9 July 2002, 7, http://www.labour.org.nz, http://www.national.org.nz, http://www.greens.org.nz, http://www.alliance.org.nz, http://www.nzfirst.org.nz, http://www.libertarianz.org.nz and http://www.act.org.nz.
[5] Media briefing by Office of Treaty Settlements on the “Treaty of Waitangi Settlements Process” at http://www.liveupdater.com/ots/DocumentLibrary/TreatyofWaitangi SettlementsProcess.html, 9 July 2002.
[6] For the purposes of this article the term “Treaty claims” refers to any claims lodged with the Waitangi Tribunal. This phrase is used interchangeably with the term “Maori claims”. The terms are consistent with each other as at present only persons of Maori descent are able to lodge Treaty claims.
[7] Media briefing on the “Treaty of Waitangi Settlements Process” at http://www.live updater.com/ots/DocumentLibrary/TreatyofWaitangiSettlementsProcess.htm, 9 July 2002, 2.
[8] Wickliffe, “Issues for Indigenous Claims Settlement Policies Arising in Other Jurisdictions” in McLay, G (ed) Treaty Settlements: The Unfinished Business (1996) 114.
[9] McDowell, M & Webb, D The New Zealand Legal System – Structure, processes & legal theory (2 ed, 1998) 220.
[10] Kelsey, “The Treaty Contradiction” in Kelsey, J Rolling Back the State – Privatisation of Power in Aotearoa/New Zealand (1993) 286.
[11] Office of Treaty Settlements, Healing the Past, Building a Future – A Guide to Treaty of Waitangi Claims and Direct Negotiations with the Crown (1999) 17.
[12] Treaty of Waitangi Act 1975, s ?.
[13] Department for Courts, Waitangi Tribunal –Te Roopu Whakamana i te Tiriti o Waitangi – Business Strategy 1998 (1998) 3, and the preamble of the Treaty of Waitangi Act 1975.
[14] Historical grievances relate to past actions or omissions of the Crown and are mostly associated with the way in which land was acquired from Maori through direct purchase, legislation such as the Public Works Act, the Maori Land Court, or confiscation. Contemporary claims relate to current Crown actions or omissions.
[15] Department for Courts, supra note 13, at 4, and the preamble of the Treaty of Waitangi Act 1975.
[16] Department for Courts, supra note 13, at 4.
[17] Durie, “Not standing apart” in Capper, R in conversation with Brown, A and Ihimaera, W (ed) Vision Aotearoa – Kaupapa New Zealand (1994) 22.
[18] Theron, L Healing the Past: A Comparative Analysis of the Waitangi Tribunal and the South African Land Claims System (1997) <http://www.kennett.co.nz/law/ indigenous/2000/52.html, 25 July 2002; and Durie, “The Waitangi Tribunal: Its Relationship with the Judicial System” [1986] NZLJ 235.
[19] Treaty of Waitangi Act 1975, Second Schedule, cl 5.
[20] Carter, N Key Issues in processing Claims through the Waitangi Tribunal – A Chairman’s Perspective – Key Issues that Claimant Solicitors should be aware of when progressing claims (1998) 1.
[21] Wickliffe, C The Waitangi Tribunal Procedure (unpublished paper delivered to Maori Claims Process class, School of Law, University of Waikato, 1999).
[22] Established by the Crown Forest Assets Act 1989, s 34.
[23] Office of Treaty Settlements, supra note 11, at 45.
[24] By way of example, the Tauranga Moana inquiry took over 4 years to complete the hearings, while the Gisborne inquiry, under the new process, was completed within 8 months of hearing the first claim in the inquiry.
[25] Te Roopuu Whakamana i Te Tiriti o Waitangi, Te Manutukutuku (May/June 2001) 2.
[26] Office of Treaty Settlements, supra note 11, at 45.
[27] For a chronology of the developments of the Crown’s settlement policy since 1975 see Office of Treaty Settlements, Healing the Past, Building a Future – A Guide to Treaty of Waitangi Claims and Direct Negotiations with the Crown (1999) 20.
[28] See Office of Treaty Settlements, Treaty of Waitangi Claims – Direct Negotiations Process (1994); Office of Treaty Settlements, Crown Negotiations Work Programme: How to Get There – A Guideline to the Negotiations Work Programme for claimants and counsel (1996); and Office of Treaty Settlements, Treaty of Waitangi Claims – Direct Negotiations Process (1997).
[29] Office of Treaty Settlements, Treaty of Waitangi Claims – Direct Negotiations Process (1999) 1.
[30] Te Puni Kokiri, He Tirohanga o Kawa ki te Tiriti o Waitangi – A Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal (2001) 114.
[31] The Office of Treaty Settlements at http://www.ots.govt.nz/crown.html records the settlement of 14 claims since 1989 totalling approximately $594.8 million in settlement redress.
[32] Office of Treaty Settlements, supra note 29, at 2.
[33] Ibid, 7.
[34] Office of Treaty Settlements, supra note 11, at 54.
[35] Ibid, 58.
[36] Ibid, 60.
[37] For the key requirements for Terms of Negotiations, see Office of Treaty Settlements, Office of Treaty Settlements, supra note 27, at 60.
[38] Office of Treaty Settlements, supra note 31, at 1.
[39] Office of Treaty Settlements, supra note 11, at 62.
[40] Ibid, 73.
[41] Ibid, 81.
[42] Ward, A An Unsettled History – Treaty claims in New Zealand today (1999) 41.
[43] The Office of Treaty Settlements at http://www.ots.govt.nz/frameset-sdocs-agreements. html, 23 July 2002.
[44] For discussion of claims that have been settled, such as the Fisheries settlement, the Tainui Settlement, and Ngai Tahu settlement, see Office of Treaty Settlements, supra note 11, and Ward, supra note 42.
[45] Roberts, J H Politics not Justice - The government’s treaty settlements policy (1999) 3.
[46] Report of Submissions – Crown Proposal for the Treaty of Waitangi Claims (1995) 4.
[47] Ibid, 5.
[48] Ibid, 22.
[49] Ibid, 23.
[50] For discussion of the hui see Roberts, J H Alternative vision – He moemoea ano: from fiscal envelope to constitutional change: the significance of the Hirangi Hui (1996).
[51] Roberts, supra note 45, at 4.
[52] Durie, supra note 17, at 21.
[53] For further discussion of the “fiscal cap policy” see Gardiner, W Return to Sender – What really happened at the fiscal envelope hui (1996).
[54] Kelsey, “The Mystery Envelope: What is the Government up to?” in Kelsey, J The Fiscal Envelope – Economics, Politics & Colonisation (1995) 21.
[55] Roberts, supra note 45, at 6.
[56] Supra note 30, at 7.
[57] “Moves to streamline Treaty claims”, The Dominion, 20 February 2002, 11.
[58] Hooper, Spiller, and Macduff, “Negotiation” in Spiller, P (ed) Dispute Resolution in New Zealand (1999) 23.
[59] For further discussion on negotiations see Fisher, R and Ury, W Getting to Yes – Negotiating agreement without giving in (1983), Macduff, “The Role of Negotiation: Negotiated Justice?” in McLay, G (ed) Treaty Settlements: The Unfinished Business (1996) 54, and Weeks, D The Eight Essential Steps to Conflict Resolution – Preserving Relationships at Work, at Home, and in the Community (1994).
[60] See Principle 3 at page 19 above.
[61] Ward, supra note 42, at 55.
[62] For further discussion on the fiscal cap, see Gardiner, supra note 53.
[63] Office of Treaty Settlements, supra note 11, at 22.
[64] Kelsey, supra note 54, at 21.
[65] Ibid, 22.
[66] Macduff, “The Role of Negotiation: Negotiated Justice?” in McLay, supra note 8, at 57.
[67] Fleras, A and Spoonley, P Recalling Aotearoa – Indigenous Politics and Ethnic Relations in New Zealand (1999) 22.
[68] Ward, supra note 42, at 40.
[69] Fleras and Spoonley, supra note 67, at 22.
[70] Berry, “Treaty stalling claims denied, but no extra cash”, The Evening Post, 28 May 2001, 2.
[71] Roberts, supra note 45, at 17.
[72] The Tainui and Ngai Tahu claims.
[73] Roberts, supra note 50, at 12.
[74] Office of Treaty Settlements, Quarterly Report to 31 March 2002 (2002) 3.
[75] Roberts, supra note 45, at 9.
[76] Ibid.
[77] Henare, “Carrying the burden of arguing the Treaty” in Capper, supra note 17, at 128.
[78] Gardiner, supra note 53, at 125.
[79] Roberts, supra note 45, at 12.
[80] For insight into the Crown’s changing policies for direct negotiations, see Office of Treaty Settlements, Treaty of Waitangi claims – Direct Negotiations Process (1994); Office of Treaty Settlements, Crown Negotiations Work Programme: How to Get There – A guideline to the Negotiations Work Programme for claimants and counsel (1996); Office of Treaty Settlements, Treaty of Waitangi claims – Direct Negotiations Process (1997); and Media briefing on the “Treaty of Waitangi Settlements Process” at http://www.liveupdater.com/ots/DocumentLibrary/TreatyofWaitangiSettlementsProcess.htm, 9 July 2002.
[81] Ward, supra note 42, at 70.
[82] McLay, supra note 8.
[83] Henare, supra note 77, at 127.
[84] Supra pages 23-25.
[85] See the analysis of submissions regarding the Crown’s proposal compiled in Crown, Report of Submissions – Crown Proposal for the Treaty of Waitangi Claims (1995) 107.
[86] Office of Treaty Settlements, supra note 11,at 16.
[87] Ibid, 3.
[88] Ibid, 16.
[89] Coates, “International Perspectives on Relations with Indigenous Peoples” in Coates, K S and McHugh, P G Living Relationships – Kokiri Ngatahi (1998) 29.
[90] Department for Courts, supra note 13, at 3, and the preamble of the Treaty of Waitangi Act 1975, 6.
[91] Williams, J V “Quality Relations: The Key to Maori Survival” in Coates and McHugh, supra note 89, at 262.
[92] Kelsey, supra note 10, at 270.
[93] Macduff, supra note 66, at 55.
[94] Coates and McHugh, supra note 89, at 10.
[95] For discussion of the Fisheries settlement see Durie, M H Te Mana, Te Kawanatanga – The Politics of Maori Self-Determination (1998) 149.
[96] Fleras & Spoonley, supra note 67, at 140.
[97] Ibid, 142.
[98] Ibid, 140.
[99] Ibid, 144.
[100] Wickliffe, supra note 21.
[101] Fleras and Spoonley, supra note 67, at 144.
[102] Williams, supra note 91, at 264.
[103] Durie, supra note 95, at 190. For a comprehensive list of the Crown’s principles, see Office of Treaty Settlements, Healing the Past, Building a Future – A Guide to Treaty of Waitangi Claims and Direct Negotiations with the Crown (1999) 22.
[104] Durie, ibid, 205.
[105] Durie, “Proceedings of a Hui held at Hirangi Marae, Turangi” in McLay, supra note 8, at 24.
[106] Ibid.
[107] Ibid, 27.
[108] Palmer, “Where to from Here?” in McLay, supra note 8, at 152.
[109] Durie, “The Treaty Was Always About the Future” in Coates and McHugh, supra note 89, at 189.
[110] Durie and Orr, The Role of the Waitangi Tribunal and the Development of Bicultural Jurisprudence (1990) 14 NZULR 64.
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