Negotiation Process
(from the Office of Treaty Settlement website www.ots.govt.nz)
Establishing well-founded Claims
Most historical Treaty claims involve one (or some combination) of the following three types of land loss or alienation.
1. Purchases of Maori land before 1865, including:
- Private purchases prior to 1840 that were subsequently investigated and validated by the Crown;
- Crown Purchases;
- Private purchases after 1840 where the Crown waived its pre-emptive right to purchase Maori land under Article 2 of the Treaty of Waitangi.
2. Confiscation of Maori land by the Crown under the New Zealand Settlements Act 1863.
3. Alienations of Land after 1865, including:
- sales after the investigation of customary ownership and individualisation of title under the various Native Land Acts after 1865;
- public works takings.
There has been a great deal of research done by the Waitangi Tribunal and other bodies on land loss or alienation under these three categories. As a result, the Crown is in a position to acknowledge that, in many cases, breaches of the Treaty of Waitangi and its principles are likely to have occurred.
Where a claimant group wishes to negotiate with the Crown in relation to the types of land loss described above, the claimant group will still have to demonstrate how the breach or breaches of the Treaty of Waitangi harmed their tupuna.
The Crown is able to enter into negotiations with claimant groups whose claims are yet to be heard by the Waitangi Tribunal, or who are waiting for the Waitangi Tribunal to report. However, the claimant group still needs to establish a mandate. The Crown also has a strong preference to negotiate with large natural groups of claimants, rather than individual whanau, or hapu.
If a claimant group wishes, they may prefer to complete hearings before the Tribunal and have the Tribunal finish a report on their claims prior to entering into any discussion with the Crown about negotiating a settlement. This report can then become the basis for negotiations between a claimant group and the Crown, although the Crown may not necessarily accept all of the Tribunal’s findings.
The claimant group may also have to complete some additional research to identify the land lost and how that loss occurred. The Office of Treaty Settlements does not provide funding for such research. This must come from a claimant group’s own resources or from the Crown Forestry Rental Trust.
While many claimant groups may be able to establish a breach or breaches of the Treaty of Waitangi, this does not automatically mean that the Crown will offer identical redress to each claimant group. The degree of culpability (extent to which a party is wrong or to blame) of the Crown may differ in each case. The Crown believes that the seriousness of each type of breach is different and redress should reflect that, but this is a matter for discussion during negotiations.
The aim of this part of the process is for the claimant
group to provide a Deed of Mandate to the Crown.
This Deed of Mandate:
- states who has the authority to represent the claimant group in negotiations with the Crown;
- describes how this mandate was obtained and how the negotiators are to be held accountable to their wider claimant community;
- defines the claimant group, the claim area and the claims that are intended to be settled.
There are a number of ways in which those who negotiate on behalf of the claimant group can be selected. Each claimant group may have a different approach. The Crown’s key concern is that the process by which this occurs is fair and open to all members of the claimant community.
Selection of representatives to negotiate a settlement package with the Crown does not mean those representatives will also be in
charge of any settlement assets. A mandate is valid only for the negotiation phase of the settlement process. All members of a claimant group will have the opportunity to approve the settlement package and, subsequently, decide on how the settlement assets are to be administered and governed.
Deeds of Mandate are assessed by the Office of Treaty Settlements and Te Puni Kokiri (the Ministry of Maori Development). If a Deed is found to be properly inclusive and representative by these two agencies, it is then publicised in local and national newspapers to ensure that all members of the claimant community have a chance to comment, as well as neighbouring claimant groups. The Minister in Charge of Treaty of Waitangi and Minister of Maori Affairs make the final decision on behalf of the Crown, and a mandate may be recognised subject to certain conditions.
Comprehensive Negotiations/Large Natural Groups
The Crown prefers that any negotiation with a claimant group cover all that group’s historical claims against the Crown. This means that a subsequent negotiated settlement is a settlement for all the claimant group’s historical claims against the Crown. It is, in other words, a comprehensive settlement.
The Crown also prefers to negotiate with large natural groups. A large natural group is usually an iwi or a cluster of hapu with a
significant population, and a large distinctive claim area.
Negotiating with larger rather than smaller groups allows the Crown to offer a wider range of redress. Many forms of redress work best when they apply to a large natural grouping of claims interests that is limited by customary association. Including a wide variety of redress within a settlement package also allows a wide range of needs to be met.
The Crown does not usually consider a single claim lodged with the Waitangi Tribunal as sufficient basis for negotiations, as any Maori can lodge a claim and there is no requirement for such a claim to have a mandate from the wider claimant community.
From 1 January 2012 the Office of Treaty Settlement will be the sole government agency responsible for contributing towards the costs associated with the settlement negotiation process.
The Crown provides a contribution towards:
- The costs of pre-negotiations, including obtaining a mandate (payable once the Crown recognises the mandate) agreeing Terms of Negotiation and starting formal negotiations
- The costs of negotiations, including reaching a draft Deed of Settlement and setting up an appropriate post-settlement governance entity to hold and manage the settlement assets
- The costs of ratification, which is the cost of confirming acceptance of a settlement package and the post-settlement governance entity by all members of a claimant group.
To ensure fairness, the level of funding provided depends on a number of factors including the complexity of the claim, the size and spread of the claimant group, overlapping claim interests, and whether there are specific issues within the group that will need particular attention during the negotiations process.
Claimant funding is provided in instalments throughout the negotiations process depending on the progress being made.
Claimant groups may wish to supplement their funding by seeking support from bodies such as the Crown Forestry Rental Trust
Mandated representatives are also expected to be accountable to their wider membership for any funds received from the Office of Treaty Settlements. The Crown also needs assurances that the funding has been expended only on negotiations expenses.
As an important part of the negotiations phase, the Crown and the mandated representatives first discuss the various interests they each wish to protect and promote in a settlement package. The parties then try to reach agreement on particular proposals for settling the claim. Usually the Crown and the mandated representatives exchange letters outlining an Agreement in Principle or, more formally, sign Heads of Agreement, to signal their agreement on the monetary value of the settlement (what is known as the
“settlement quantum”), and the scope and nature of other redress to be provided.
The parties then need to work through the detail on such matters as:
- an account of the historical basis of the claims, those matters the Crown acknowledges as breaches of the Treaty and its principles, and the wording of the Crown’s apology;
- what commercial settlement assets might be transferred, and on what terms;
- the various items of cultural redress that are offered.
When all the details of the redress have been agreed, these are set out in a draft Deed of Settlement for approval by Cabinet. The draft Deed of Settlement is then initialled by both the Crown and the mandated representatives for ratification by the claimant group.
The Deed of Settlement initialled between the Crown and the mandated representatives must be clearly approved by the wider claimant group before it becomes binding. This approval process is called ratification.
The key part of the ratification process is a postal ballot in which all members of the claimant group over the age of 18 are eligible to vote.
In addition members of the claimant group must have a chance to review and ratify the proposed governance entity for the settlement. The term “governance entity” simply refers to the legal entity that will be used to hold and manage settlement assets, and exercise the forms of cultural redress provided in the settlement package. Ratification of the governance entity must occur before the Crown can introduce settlement legislation and transfer the redress provided in the settlement to the claimant group. The ratification process for a governance entity is similar to that used to ratify a Deed of Settlement. It may be carried out at the same time as the members of a claimant group consider whether or not to ratify a Deed of Settlement, or it can occur as a separate
process.
The term “governance entity” simply refers to the legal entity that will be used to hold and manage settlement assets and exercise the forms of cultural redress provided in the settlement package. The constitution of the governance entity is a matter for the claimant group to decide. The type of structure may depend on, among other things, the size of the claimant group and the assets and cultural redress they will be administering. It will also depend on the claimant group’s aims following settlement.
The Crown has no wish to determine these aims or the type of governance entity chosen by a claimant group. But the Crown does have obligations to all New Zealanders to ensure the settlement assets are managed by and for those who will rightfully benefit from the settlement of their claims.
Accordingly, prior to the transfer of the settlement package to the claimant group, the Crown will assess whether the proposed governance entity has a 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;
- ensures the beneficiaries of the settlement and the beneficiaries of the governance entity are identical when the settlement
assets are transferred from the Crown to the claimant group; and - has been ratified by the claimant community.
Developing a governance entity should involve as many members of the claimant group as possible, at an appropriate point in the
process.
Claimant groups are urged to begin considering their Governance Entity options at an early stage in the settlement process so that
they are able to have a structure approved by their members and established by the time the legislation implementing their settlement is introduced into Parliament. This will avoid any delay in transferring the settlement assets to the claimant group and allow claimant groups to begin to exercise the forms of cultural redress as quickly as possible.
Settlement legislation is usually needed to implement a settlement. For example, legislation is needed to ensure the finality of the
settlement by removing the ability of the courts and Waitangi Tribunal to re-open the historical claims or the Deed of Settlement. It may also be needed to vest land in the governance entity on behalf of the claimant group if normal administrative land transfer processes would not be appropriate.
Once the legislation to give effect to parts of the settlement has been introduced and referred to a Select Committee (usually the
Maori Affairs Select Committee), anyone who wishes to do so is able to make a submission to the Select Committee.
The Select Committee may investigate any aspect of the settlement, including the process by which it was arrived at. However, apart from purely technical changes, for example to ensure that the legislation properly reflects the Deed of Settlement, it must approve the legislation as a whole, or not at all.
Once the Select Committee has reported back to Parliament on the submissions, the Bill is then passed through its final stages and signed by the Governor-General. Once signed, the legislation then allows the settlement assets to be transferred to the governance entity on behalf of the claimant group and the group can begin to make use of the cultural redress provided in
the settlement.