The settlement process

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

As a result, the settlement process has become familiar to lawyers, negotiators and Crown officials. The rest of us are less acquainted with what goes down.

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.

Any Māori can submit a claim to the Waitangi Tribunal. It can be made by a single iwi, a group of iwi or a collection of hapu¯ 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 its case.

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

PRE-NEGOTIATION

The Crown – through the Office of Treaty Settlements – negotiates only with one mandated group acting on behalf of a claimant. This can be the most contentious part of the claims process and often stalls negotiations.

When multiple groups are included in one claim, sometimes not all can agree on the chosen representative. A series of hui are held to discuss 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 – and the Ministry of Māori Development acts as 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 sign 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 cogovernance 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, and the deal is taken before Parliament to be legislated.

LEGISLATION

Parliament will pass a law to confirm the final settlement and make it 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 passed and the governor-general gives it royal assent. The package is provided to a Post-Settlement Governance Entity (PSGE), within about 40 days, for implementation.

IMPLEMENTATION

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

The PSGE works with the government departments that have commitments to satisfy the conditions of the settlement.

The group receives the cash and property agreed, and establishes committees to look after environmental features, and apply for resource consents when needed.