Australian Indigenous Law Reporter
The Minister, Mr Douglas Graham, published Crown Proposals for the Settlement of Claims as a basis for consultation during 1995. A booklet Crown Proposals for the Settlement of Treaty of Waitangi Claims: Detailed Proposals provides full details. The booklet extracted here is a Summary.
In his Foreword the Minister wrote:
The Treaty of Waitangi is the foundation document of New Zealand.
Many believe the Crown, in various ways, failed to act with the utmost good faith and that as a result Maori were seriously disadvantaged. Over the past 150 years Maori have sought redress to settle these grievances. Attempts to resolve some of them have been made during that time with varying success, but many grievances remain unanswered.
All New Zealanders wish to enjoy positive race relations. Yet this is unlikely while such grievances continue to blight the relationship between the Crown and Maori. They were not caused by the current generation who need not feel guilt in any way. The Government on behalf of the Crown has to resolve the claims honourably so that the injustices can be put behind us once and for all. But it is only the current generation of New Zealanders from whom Maori can seek redress. Therefore, there are real limitations on what can be asked of today's New Zealanders to resolve historical grievances.
Any reading of our history clearly shows that Maori have suffered injustices, particularly in the way that many tribes lost their land. This occurred in a variety of ways, for example, the Crown confiscated a large amount of land from Maori after the wars of the 1860s. This is why the Crown considers that resolving the grievances should focus as far as possible on the restoration of property rights to Maori.
Claims by Maori under the Treaty are claims against the Crown and the Crown alone. They are not against anyone individually. It is for the Crown to restore its honour. Therefore, only Crown assets can be used in the settlement of claims. While a claim may be about land which is now privately owned, that land cannot and will not be compulsorily acquired to settle claims because to do so would be to attempt to resolve a past injustice by creating a new one.
Each iwi or hapu that has a claim is entitled to have it considered by the Crown on its own merits. Only in this way does the Government believe the grievance can be removed. Land claims cannot be treated as a claim by all Maori people acting as one.
The aim of settling a claim is to correct a wrong. Settlements cannot alter in any way the terms of the Treaty of Waitangi itself nor absolve the Crown from its ongoing obligations under it. The Treaty is as applicable today as it was in 1840.
Nor will settlements restrict the ability of any Maori to enjoy the rights held by every other New Zealander, for example, to health services, educational and welfare entitlements which exist regardless of race. The Crown cannot demand that the proceeds of settlement are used to relieve the Government of its duties to provide such services to Maori.
The claims by Maori are wide ranging and diverse. While some relate to land, rivers and natural resources, others involve such general issues as the preservation of the Maori language. Ad hoc attempts in the past to settle claims often have proved unsuccessful because there was little understanding of the totality of the issues. Over the past few years, the Government on behalf of the Crown has attempted to approach the claims in a rational, cohesive and constructive way. It has had to work out what it believes can be done, taking into account its responsibilities to all New Zealanders.
This has led to the development of some basic principles:
Another need claimants have is to be sure that their particular settlement is fair in comparison with other settlements, taking into account the ability of the Crown to redress all historical claims. Without some idea of the total package that can reasonably be made available by the Crown, it is difficult for claimants to agree to a settlement which will bind future generations unless the settlement is fair relative to all other claims.
The Crown has many demands to meet and has to carefully assess how much can be put aside to settle claims. The Crown has accordingly decided to set aside a settlement sum of $1 billion to be available over a period of about 10 years. This has become known as the 'Fiscal Envelope' or the 'Settlement Envelope' and confirms the Crown's commitment to settle claims. This Settlement Envelope covers all 'historical' claims, which the Crown has defined as claims where the act or omission by the Crown occurred before 21 September 1992. It is not for claims about acts or omissions of the Crown which occur after that date. The costs of settlements that have been put into effect since 21 September 1992, including the Sealord fisheries settlement, are to be charged against the Settlement Envelope.
The Settlement Envelope is similar to a special account which will be used to purchase surplus land from different government departments and to provide cash for settlement purposes. No claimant, however, is expected to enter negotiations having made any concession and it is not a precondition to negotiations that claimants have to agree to the Settlement Envelope or the amount in it.
Claimants may not wish to negotiate or settle their claim at this time and that is their choice. But the Crown stands willing to act in good faith to redress as many proven claims as possible in a fair and honourable way.
The negotiations procedures and the various policy proposals developed by the Crown to date are now set out in this booklet and submissions from all New Zealanders are invited. Other issues may arise in the future and further consultation will be necessary. Only by general consensus amongst all New Zealanders will these matters finally be resolved.
The Government on behalf of the Crown will hold meetings throughout the country for Maori, various interest groups and the public generally between February and April 1995. All submissions will be carefully considered by Government and the policy proposals may be modified as a result.
The resolution of claims is a complex matter. It requires understanding and tolerance. It is hoped that a platform can be developed on which to make progress. The harmonious and peaceful development of our country will depend on the outcome.
The Introduction section indicates the contents of the booklet and provides a flow chart before going on to the Summary of the Proposals.
This summary booklet considers the nature of Treaty claims and outlines a proposed change to the Treaty of Waitangi Act. Chapter two discusses how claimants are represented, including mandating negotiators and governing structures. The third chapter deals with changes proposed to the process for negotiations. Then the protection mechanism and land banking are explained. The fifth chapter considers different options involved in the redress of claims, including claims concerning conservation land, natural resources and gifted land, and the role of the Settlement Envelope. The final chapter is on how settlements are reached and ratified. Certain requirements are proposed by the Crown so final settlements can be achieved.
This chapter describes what a Treaty of Waitangi claim is and how it is made. It sets out the Crown's proposals for a change to who is able to make a claim and outlines the difference between historical and contemporary claims.
At present, any Maori person or group of Maori may bring a claim against the Crown if they believe that some action or omission by the Crown was inconsistent with the principles of the Treaty of Waitangi. Claims are submitted to the Waitangi Tribunal.
Any claim is a claim against the Crown. It is not a claim against any individual New Zealander. Only Crown assets can be used in the settlement of proven claims.
The Crown is proposing that s. 6 of the Treaty of Waitangi Act be amended so that the Tribunal can decline to hear claims not lodged and mandated by hapu or iwi. This would prevent individuals from making claims over collective assets without the authority of the hapu or iwi.
The Crown believes that because the Treaty of Waitangi was signed between representatives of the Crown and the chiefs of iwi and hapu, the proposed amendment reflects the nature of the Treaty.
Some claims are lodged by pan-Maori or non-tribal organisations. The proposed amendment to the Act would still allow such claims to be considered as long as they were sponsored by one or more hapu or iwi claimants.
The Crown is making a distinction between two types of claims - which are known as 'historical' claims and 'contemporary' claims. It is proposing that historical claims are those which may arise as a result of a Crown action or inaction on or before 21 September 1992. Any claims which arise from actions or omissions after that date are contemporary claims.
The 21 September 1992 date was chosen because that is the date when Cabinet agreed on the general principles for settling Treaty of Waitangi claims. These principles are listed in the Foreword to this booklet.
Deciding who the proper claimants are in respect to a particular claim and ensuring that claimant negotiators have the proper mandate are both important questions to settle before negotiations can begin. The Crown also wants to make sure that claimants have established and agreed on a structure which will administer the benefits of any settlement. This chapter sets out the Crown's proposals for dealing with claimant representation issues.
The Crown needs assurances on certain issues before it is willing to settle Treaty claims. Without these assurances, the Crown believes the durability of a settlement may be at risk. The three areas the Crown has identified are:
The claimant group are often not the people who bore the original grievance because the grievance has arisen from some action in the past. Therefore, there are a number of issues to be resolved about who has inherited the grievance, including:
In the context of Treaty claims, a mandate refers to the authority given to a person or group of people to represent claimants during negotiations with the Crown and to recommend a settlement on their behalf.
To ensure that negotiators do have a mandate, the Crown proposes that before negotiations can begin, the claimants should sign a Deed of Mandate which will state:
The advantage for the Crown of the Deed of Mandate is that it will be clear who has the authority to negotiate and settle a claim. The Crown considers that the advantage for claimants is that the requirement for the Deed should help to produce a unified approach and will provide more transparency for those claimants not directly involved in the negotiations.
The Crown wants to be sure that any assets or resources which are to be transferred to a claimant group will be managed and administered within a proper legal structure. Claimant negotiators will need to demonstrate that a governance system exists to handle settlement proceeds. They will also have to show that this structure has been agreed to by the claimant group. This governance structure would need to be identified before the settlement is finalised and certain rules about how it would operate would have to be defined. These include:
The Crown believes it is important that members of a claimant group have an avenue of redress if they have concerns about the governance system. This will ensure that the views of minorities within the claimant group are able to be heard. The Crown is suggesting that the Maori Land Court would be an independent body which could take on the role of looking into objections about the governance structure.
Once the issues of claimant representation have been sorted out, the next stage is to begin negotiations. This chapter sets out the Crown's proposals for a new process for negotiation of Treaty of Waitangi claims.
Negotiation is the principal way for claimants and the Crown to resolve claims under the Treaty. (The Waitangi Tribunal can also order the resumption of certain Crown assets to redress a claim.) Many claimants may ask the Waitangi Tribunal to hear a claim and make findings on it before they enter into negotiations. Other claimants may prefer to enter into direct negotiations with the Crown without a Tribunal hearing. In either case the claimants and the Crown need to have enough information about the claim before negotiations begin, and then follow an agreed path to a settlement. This is the negotiations process.
The Crown is proposing that after exploratory discussions between the claimants and the Office of Treaty Settlements, the Crown may accept the claim onto the Negotiations Work Programme. This is a programme of the claims which the Crown and claimants have agreed to negotiate. Acceptance onto the programme would be an important step. It would mean the Crown acknowledges the nature and significance of the Treaty breach and the Crown and claimants signal they are willing to negotiate over redress for the breach.
First, the historical basis for the claim will have to be established. This will involve discussions between the Crown and claimants about the nature of the claim. Further historical research may be required. Any Waitangi Tribunal reports will have to be considered.
Secondly, the Crown will have to develop its own position on the nature and extent of the breaches. The Crown will also have to agree that the correct claimant group has been identified and that the claimant negotiators have been properly mandated by the claimant group. The Crown will have to weigh up any resource and financial constraints before a claim can be given sufficient priority to be included in the Negotiations Work Programme.
The Crown proposes that for a claim to be accepted onto the Negotiations Work Programme claimants will have to agree:
Negotiations will begin after the Crown has developed a negotiating brief on what it is prepared to offer as redress and the structure of its negotiations. It is for the use of the Crown only, not for the claimants. To develop its brief, however, the Crown will hold exploratory discussions with claimants about the redress they are seeking. Claimants may also wish to prepare their own negotiating brief.
The Crown's brief will cover any procedures that may be required for consulting with other organisations and the wider public about options for redress.
The Crown would hold discussions with claimant groups whose claims are in negotiation to see how their claims would fit into the proposed new process.
This chapter outlines the existing process for the protection of Maori interests in surplus Crown land and explains what land banking is and how it fits into the mechanism.
There are two existing procedures which are designed to ensure that the interests of claimants are protected:
The Crown notifies iwi that a piece of land is surplus and invites submissions from them. lwi are asked to identify whether they consider it should not be sold because it meets 'Category 'A', 'B' or 'C' criteria for protection.
If the Crown agrees that it is a Category A site, it will be essential to the settlement of a claim. It will be of such special historical, cultural or spiritual significance that the Crown acknowledges it cannot be substituted for another piece of land. It might be, for example, a burial place, a sacred shrine or a pa site.
If it is a Category B site, it will be a site of special importance such as a mountain or a river.
If it is a Category C site, it will be a site particularly sought by the claimants which will facilitate the settlement of their claim.
If the Government agrees that the property meets Category A criteria, it may be transferred immediately to the claimants or land banked. If the Government agrees that the property meets Category B or C criteria, then the property may be land banked.
To land bank a property for a claimant, the Crown will buy the property from the department, CRI or CHE that owns it. The Crown will then put it in a 'land bank' and will keep it for future use in the settlement of the claim.
In order for a property to go into a land bank the claimants must agree:
This chapter is divided into four sections, each of which contains proposals about issues relating to the redress of claims. These proposals cover general questions and should speed up the ability of the Crown to decide its position on any claim negotiations that occur. The sections concern claims relating to the conservation estate, natural resources and gifted land, and the role of the Settlement Envelope.
If a claim is proved to be valid and it relates to land, then in general terms:
The 'conservation estate' is the name used to describe lands administered by the Department of Conservation. It includes: conservation parks, marginal strips, national parks, marine reserves, lands held under the Reserves and Wildlife Acts, and other areas. It covers an area of some seven million hectares, or approximately 30 per cent of the whole country.
The conservation estate has to be managed for conservation purposes, the public have free access to the land, and most significant management decisions require public consultation.
In general the Crown proposes that conservation estate land should not be used to settle claims. The Crown considers that it administers the conservation estate on behalf of all New Zealanders and that the rights of the general public to use the conservation estate should not be affected as a result of Treaty settlements. It also believes that it has a responsibility to protect the natural and historic values of the land (including wahi tapu sites).
In considering Treaty claims concerning conservation land, therefore, the Crown proposes certain principles should be applied:
There are three possible ways of using the conservation estate in settling claims:
Ownership of the land could be returned to claimants (possibly with conditions attached to maintain conservation values and public access) .
The land could be vested with claimants under the Reserves Act or by special legislation. This would allow continued Crown involvement with the land. If the conditions were breached, the land could revert to the Crown.
The Crown could continue to own the land but Maori could take on a significant role in managing the land.
The Crown proposes that returning ownership of land to claimants (as in the first option above) will be considered in relation to small pieces of land of special significance to Maori (e.g. burial sites) and only if this would not affect conservation values or the management of the conservation estate.
The Crown recognises that there is a lot of public interest in the conservation estate and in how claims to it will be settled. Because of this, the public and relevant interest groups will be fully consulted over any changes proposed to the ownership or management of conservation land. Existing property rights, e.g. of lessees, will be protected. Their interests in the future use of conservation land will also be considered, as will the needs of sectoral groups, like the tourism industry.
The Crown also has obligations under the Public Works Act to offer surplus land back to the previous owner.
Another area where restrictions are necessary relate to Treaty claims to natural resources. Again special rules must apply because in general terms the Crown controls natural resources in the interests of all New Zealanders.
Natural resources which are the subject of claims include: water, geothermal energy, river and lake beds, foreshores and seabeds, sand and shingle, and minerals, including gold, coal, gas and petroleum. Sometimes the claim is over land which includes natural resources.
Article I of the Treaty of Waitangi gave the Crown the authority to govern in the interests of all New Zealanders, and this includes controlling the use of natural resources for the common good. In some cases the Crown not only controls the use of a resource but is also its legal owner. In other cases legal ownership is not specifically defined, but the Crown regulates the resource for the benefit of all New Zealanders. For some resources, e.g. water, the Crown's regulatory role includes allocating resources among competing uses and users.
There are four main types of interest that people can have in a resource:
The Crown proposes that Treaty claims about natural resources should focus on their uses and their cultural and spiritual values. It does not consider that Article 11 of the Treaty guaranteed to Maori the ownership of natural resources in 1840. The Crown does accept that Maori used and valued a number of resources at the time the Treaty was signed.
The Crown considers that it has the ultimate right to control the use of natural resources where necessary in the interests of all New Zealanders and that Article I of the Treaty reflects this right. However, in exercising this right the Crown must take into account other Treaty interests.
The Crown accepts that Article 11 of the Treaty guarantees Maori use and value interests in natural resources. The Crown is proposing two ways of deciding whether Maori have such interests in a particular resource:
Known in 1840 - Was the resource being used or valued in 1840? The Crown proposes that future uses are guaranteed only if they existed in 1840 or were reasonably foreseeable developments of those uses.
Effect of Sales - The Crown proposes that if land containing natural resources was fairly sold, there would be a claim over the resources only if it was clearly understood that Maori could continue to use them.
The Crown proposes that it will be willing to negotiate redress over a claim about a natural resource when:
When negotiating settlements, the Crown must always keep in mind its duty to act in the best interests of all New Zealanders. The Crown will have to consider what is affordable as well as the relative severity of a grievance in relation to other claims. Natural resource claims will usually be settled as part of the package covering a claimant group's overall grievance. (These principles also apply to the redress of all historical claims.)
Use and value interests could be reinstated to Maori where appropriate if this did not interfere with the existing rights of private users. The Crown might also consider transferring certain property rights as compensation, and could offer Maori greater participation in the management of natural resources, e.g. through increased representation on boards and tribunals.
Public consultation will occur if any change in the public's interest in a resource is contemplated.
Another specific area for the redress of Treaty claims concerns gifted lands. A number of claims have been lodged at the Waitangi Tribunal alleging that the Crown did not act in good faith or actively protect Maori interests in gifted lands.
During the early part of European settlement of New Zealand, many Maori made gifts of land to the Crown to be used for public purposes such as schools. Often conditions were implicitly or explicitly attached to the gift. Some of these lands are no longer owned by the Crown. Some are still held by the Crown but may no longer be required for public purposes.
Yes. The Crown proposes that where a claim involves a breach of a legal obligation and where the claimants could still take legal action, that claim should be dealt with outside of the Treaty claims process.
The Crown is proposing the following steps to help decide whether there has been a Treaty breach over gifted land:
The Crown is suggesting several ways it could deal with gifted land claims depending on the particular case:
The Crown has decided that there has to be a limit to the cost of redressing all historical grievances. The reasons are:
Accordingly, the Crown has decided to set aside a settlement sum of $1 billion over about a 10-year period. This is known as the 'Settlement Envelope' and confirms the Crown's commitment to settle historical claims.
The Crown has taken into account the criteria described above. The Crown has considered the large number of Treaty claims and the wide range of grievances they cover. Some of the claims relate to extensive areas of confiscated land while others concern only small pieces of land. The actions or omissions of the Crown are similarly variable. Some actions were well intentioned at the time but can now be seen to have been unfair; others cannot be justified on any reasonable basis. The Crown also has taken into account the cost of the Fisheries Settlement which has a bearing on the amount that can be made available to settle claims relating to land.
The amount in the Envelope is a political decision which cannot be open for negotiation. It should be noted that Maori do not have to agree to the Settlement Envelope or the amount in it before they begin negotiations, nor is there any obligation on them to seek to negotiate at this time.
All proven historical claims will be settled from the Envelope, i.e. those claims which are based on an action, or lack of action, taken by the Crown on or before 21 September 1992. Any claims arising from Crown action or inaction after that date are called contemporary claims and will be dealt with outside of the Settlement Envelope.
The Crown considers that there will have to be a final date for claimants to file historical claims with the Waitangi Tribunal. The date previously considered was 30 June 1996. The Crown accepts that this date is no longer realistic. It proposes that an appropriate cut-off date be discussed with claimant groups as part of this consultative process.
The Settlement Envelope is like a special account which will be used to buy surplus land or assets in the claim areas from government departments and specified Crown agencies for use in settlements. Cash and other assets to be used in settlements will also come from the Envelope. The costs involved in settling each claim will be recorded and will be part of the total amount that the claimant group receives in its settlement from the Envelope. The Settlement Envelope will be included in the Government's annual budgeting and financial reporting. The Minister in Charge of Treaty of Waitangi Negotiations will report on an annual basis on payments made in relation to settlements charged against the Envelope.
The Crown is proposing that only certain costs associated with settling Treaty claims will becovered by the Settlement Envelope. These are:
The Crown proposes that certain other costs will not be met by the Settlement Envelope (and will not have to be met by claimants). These costs are:
No. Article III rights are not affected by a settlement. Maori are as entitled to the benefits of government services such as health, education and social welfare as every other New Zealander. This is reflected in Article III.
Settlement of historical claims does not affect the place of the Treaty, nor the rights it enshrines for Maori. The Treaty is a living document and remains as valid today as it was in 1840. Settlements are designed to right a wrong. The Crown proposes that settlements of historical grievances must be full and final but this does not mean the Treaty is amended or rescinded in any way. In the Sealord fisheries settlement, the settlement was a fulfilment of the Treaty right; it did not amend the Treaty.
Yes. Claims can still be brought under Article II but only for Crown actions or
lack of action which occurred after
21 September 1992 (contemporary claims). Such claims, if any, will not be met from the Settlement Envelope.
The settlement process being proposed here would allow each claimant to negotiate direct with the Crown. Claims would be dealt with separately on their merits on a case by case basis. A global settlement or pan-Maori settlement, on the other hand, would mean that all claims would be merged and settled together, with negotiations being carried out on behalf of all iwi by designated negotiators.
The Crown does not intend to settle land claims on a global or pan-Maori basis. It considers this would leave many grievances unresolved and such an approach denies the right of iwi and hapu to control their own destiny.
The Crown believes that for its proposals for the settlement of all historical grievances to be acceptable to all New Zealanders, settlements have to be full and final. This means that once a claimant has negotiated a settlement with the Crown, that claimant or its successors cannot, at some time in the future, try for a further settlement of the same historical claim.
The proposed settlement process outlined in these booklets is voluntary. It is an invitation by the Crown for Maori to negotiate historical claims. If some claimants do not wish to do so, that is entirely for them to decide. The Crown is not demanding that Maori come to the negotiating table, nor is it forcing settlement upon them.
When the negotiations have progressed sufficiently and some agreement regarding settlement has been reached, the steps towards drawing up a Deed of Settlement can be taken. The Crown is proposing a series of steps for drawing up this Deed and is also proposing ways to ensure that any settlements are final and will not be open to review or challenge later on. Furthermore, the Crown has certain expectations which it wants fulfilled before settlement resources can be transferred to claimant groups.
When the negotiations reach the stage where there is agreement on how a claim should be settled a draft Deed of Settlement is prepared. This will also contain information on how the benefits of the settlement will be managed and distributed. The claimants' negotiators will then consult with members of the iwi or hapa and seek their approval, and the Crown negotiators will refer the matter to the Government for approval.
The Crown will need to feel sure that there is a sufficient level of support both among the claimant group and in the broader political environment for the settlement to be durable. Once the Crown is satisfied that the claimants have agreed to the terms of the draft Deed and the structure for managing the proceeds of the settlement, a final Deed of Settlement can be signed by both parties.
The Crown believes it is important that any settlement be final and result in all parties feeling that the grievance has been properly resolved. The Crown is proposing three steps to ensure that settlements of historical grievances are final:
The Crown is proposing that when a settlement is reached over any claim, no compensation will be paid out or benefits transferred to claimants until any memorials on land in the claimants' role have been removed and the Tribunal has declared that any Crown forest assets there are no longer liable for return. Claimants would have to inform the Tribunal that they consent to these steps.
Sometimes memorials will apply to areas where there are claimant groups with overlapping interests. The Crown is proposing that the Waitangi Tribunal would have to remove these memorials before settlement resources are transferred.
The Crown believes that Maori are in a strong position to determine the nature of any initiatives to improve the process for removing memorials. It seeks suggestions from Maori on how to remove memorials (and how to declare licensed land no longer liable for return).
No. The Crown is proposing that once a settlement has been reached, neither the Tribunal nor the Courts would be able to review that claim or settlement at a later date. This would ensure that settlements are seen as final and are not at risk of being opened up again in the future.
The Tribunal could still enquire into historical claims which had not yet been settled and into contemporary claims.
At the appropriate time, the Crown will propose repealing the protection mechanisms which will then no longer be required.
The booklets are published by the Office of Treaty Settlements, Department of Justice, Private Bag 180, Wellington, New Zealand.