How breaches of the Treaty of Waitangi are settled

Friday, 3 August 2018

What led to the signing of the most important document in New Zealand's history?

More than 200 claims of Treaty breaches have been lodged with the Waitangi Tribunal, and so far governments have spent over $2 billion settling injustices.

As a result, the settlement process has become familiar to key players like lawyers, negotiators and Crown officials.

The rest of us are less acquainted with what goes on.

GROUNDS FOR A CLAIM

The articles of the Treaty of Waitangi passed sovereignty in New Zealand to the British Crown, but enabled Māori to keep rangatiratanga, or chieftainship, over their resources. It also allowed the Crown first rights to any land being sold while guaranteeing Māori the rights and privileges of British citizens.

Claims can be made for times the Crown didn't uphold one or more of the Treaty articles at any time from 1840 until 1992.

Ngāti Rangi chief Che Wilson signed a settlement with the Crown in March. It included recognition and governance arrangements for the Whangaehu River, and financial and commercial redress worth $17m.

Stuff's NZ Made/Nā Nīu Tīreni project: When the Treaty of Waitangi was signed, Māori owned more than 66 million acres of land. By 1975, almost 97 per cent had been sold or taken. (Last published February 1, 2021.)

* $42b Maori economy about more than just Treaty settlements

* NZ's largest iwi: 10 years of nothing**

Any Māori can submit a claim to the Waitangi Tribunal, and they can be made by a single iwi, a group of iwi or a collection of hapū from the same geographical area.

If the claim meets the standards of the tribunal, it's registered and legal aid is provided for the group to fund the preparation of their case.

Essentially, there are four stages in a Treaty settlement: Pre-negotiation, negotiation, legislation and implementation.

PRE-NEGOTIATION

Historical claims can be made for times the Crown didn't uphold one or more of the Treaty articles at any time from 1840 until 1992.

The Crown - through the Office of Treaty Settlements - only negotiates with one mandated group to act on behalf of a claimant.

It can be the most contentious part of the claims process and often stalls negotiations. The largest iwi in the country, Ngāpuhi, has exactly this issue.

When multiple groups are included in one claim, sometimes not all can agree on the chosen representative. A series of hui are held so everyone can discuss their grievances and meet the nominated representatives, while attempting to get agreement from as much of the community as possible.

Representatives are chosen solely by the claimant group - the Crown has no say. The Ministry of Māori Development acts as a neutral observer while voting takes place to make sure that the process is open and fair.

When the vote is in and someone is nominated, the Crown and the representatives signs terms of negotiation.

NEGOTIATION

During negotiation, the Crown and claimant group publicise a proposal about how the grievance will be resolved in a deed of settlement - this can take up to 18 months.

At a hui, everyone has time to consider the settlement and pose questions before being asked to vote. Everyone in the claimant group who's 18 or over will get voting papers.

Settlements give three kinds of redress to the claimant group: A historical account of the Treaty breaches and Crown acknowledgement and apology; cultural redress; and commercial and financial redress.

The historical account details the ways that the Crown breached the Treaty - both parties must agree on this.

Cultural redress can include changing place names, the transfer of Crown land to the claimant group, and co-governance of rivers and lakes.

Commercial and financial redress is made up of cash, property, or a mixture of both.

When an agreement is reached, a signing ceremony is held to celebrate the settlement and it's taken before Parliament to be legislated.

LEGISLATION

Parliament will pass a law to confirm the settlement is final and make the settlement legally binding.

The legislation is usually written with the deed of settlement so representatives and the Crown can ensure it covers everything agreed in the deed.

After three readings and a select committee review, the legislation is officially passed and the Governor General gives it 'royal assent'.

The settlement package is provided to a Post Settlement Governance Entity (PSGE), within about 40 days, for implementation.

IMPLEMENTATION

Prior to this phase, a group of people is voted onto the PSGE, which manages the settlement assets and its effect on environmental features and government departments.

The PSGE works with the government departments who have commitments to satisfy the conditions of the claimant group's settlement.

The group receives the cash and property agreed as part of the commercial redress.

It also establishes committees to look after environmental features, like rivers and lakes, and apply for resource consents when needed.