Treaty settlement negotiations: An overview

Iwi groups throughout the country are currently in Treaty settlement negotiations for the comprehensive settlement of their historical Treaty of Waitangi claims against the Crown.

Some of these iwi groups will have their claims discussed in Waitangi Tribunal reports and have a body of evidence already prepared as part of the Waitangi Tribunal process. Others have skipped the Waitangi Tribunal inquiry phase altogether and have proceeded to direct negotiations with the Crown without that background.

Direct Negotiations vs Tribunal Inquiry

Both avenues have their merits. Proceeding through a Waitangi Tribunal inquiry/hearing process prior to negotiations has the benefit for iwi to be able to draw from significant evidence once in negotiations with the Crown. It also means recommendations and findings from the Waitangi Tribunal which, although not binding, do have weight when later negotiating directly with the Crown.

For those who proceed to direct negotiations without a Tribunal Report in support, one upside is that negotiations can progress more quickly without a lengthy Tribunal inquiry being carried out beforehand. On the other hand, the evidence base provided via the Tribunal process will not be available but may be met in some ways via research funded separately and prepared specifically for negotiations.

Each iwi group will need to consider what the appropriate course is for them, bearing in mind the nature of the grievances suffered by them, the timing factor and potential opportunity cost of delaying negotiations and the background evidence which may be provided via the Tribunal inquiry.

There is no right or wrong way to approach settlement negotiations but, for those who do commence negotiations with the Crown, we set out below an overview of the key milestones involved and some of the considerations to be made when embarking on this journey.

Mandating

The first step in settlement negotiations is the mandating process, whereby a iwi group receives the mandate, or authorisation, from the iwi members to act on their behalf in negotiations with the Crown towards a settlement of that groups Treaty of Waitangi claims. In order to do that a mandate strategy must first be prepared by the iwi group and approved by the Crown (via the Office of Treaty Settlements and/or Te Puni Kōkiri) which sets out the process through which a mandate will be achieved. The mandating process will invariably require a series of mandate hui at which the proposed mandated body will present to the iwi and to explain why it seeks a mandate and on what basis.

Following those mandate hui, if sufficient support is provided, the iwi group will prepare a Deed of Mandate for the mandated body. That document is submitted to the Crown for formal recognition. Once formally recognised, the mandated body can commence negotiations with the Crown.

In order to do so, the Crown will prepare its work plan through to an Agreement in Principle (at least). There is always the possibility that work plans and timeframes will vary during the course of negotiations and, whilst this can be frustrating for iwi groups, it is often inevitable given the political nature of negotiations. With that in mind, iwi groups must factor those potential delays into communication strategies and also funding application(s) to groups such as the Crown Forestry Rental Trust.

Terms of Negotiation

Terms of Negotiation are another milestone on the way to a settlement. At times, these can be relatively pro-forma however they do serve a purpose in setting the ground rules between the mandated body and the Crown going forward into what can be intense negotiations. Terms of Negotiation also have other impacts in terms of limiting iwi group’s involvement in Waitangi Tribunal proceedings and other Court proceedings. Whilst Terms of Negotiation are non-binding, they are based on good faith and must be followed by both parties if the negotiations are to progress.

Agreement in Principle

Following the signing of Terms of Negotiation between the two parties, formal negotiations can commence towards an Agreement in Principle. An Agreement in Principle is a major milestone for any iwi group, as it sets out the overall redress package agreed to.

In recent times, there has been a move towards more informal Agreements in Principle or Agreements in Principle equivalents, where the level of detail is less than that of a normal Agreement in Principle. This has been a result of a drive to reach settlements where there may not be resources to complete all aspects of the standard Agreement in Principle at that stage of the process. This can leave considerable work to be carried out in the following phase through to Deed of Settlement, but can also mean that claimant groups avoid delays at this phase (and flow on funding issues). That said, the Crown’s preference now seems to be moving back towards having full details in an Agreement in Principle to ensure completeness.

Deed of Settlement

Obviously, the Deed of Settlement is the ultimate aim, together with the settlement legislation. Following Agreement in Principle, the groups will work towards an initialled Deed of Settlement detailing all redress to be provided in full and final settlement of the iwi group’s historical claims.

A Deed of Settlement will include the following redress:

• Historical Account covering the claims of the iwi group and Crown breaches of the Treaty;
• Crown acknowledgment and apology;
• Cultural redress, including redress over sites of cultural significance to the group and relationship redress/agreements with Crown departments;
• Commercial redress, including a quantum amount and specific commercial sites which are to be purchased from that quantum.

Once the Deed of Settlement is initialled by the mandated body, the Deed is referred back to the iwi for approval (known as ratification).

Ratification is the formal process where all beneficiaries of the settlement have the opportunity to comment and vote on the settlement redress package agreed to between the mandated body and the Crown. This is a particularly important part of the process and is often tied together with the ratification of the post-settlement governance entity for the group. The Crown must approve the post-settlement governance entity for any iwi group, as it will be the group that receives the settlement redress following the passage of settlement legislation.

Summary

Although the key planks of settlement negotiations are set out above, we have recently seen a number of variations from the standard process which bring their own benefits and challenges. Our team is available to advise on all aspects of negotiations, including advice on unique approaches to settlement and specific on account settlements.

Renika is an Associate in our Māori Legal Team and can be contacted on 07 958 7429.