Treaty settlements - How do I fit?

For any iwi/hapū group, the idea of representation is something that is often grappled with and rarely mastered.  In the context of Treaty settlement negotiations with the Crown, representation is a major issue.  As a result, the focus is often placed on this at a very early stage in the negotiations process. 

Hand in hand with the issue of representation is the issue of who is being represented by any particular body.  In a Treaty settlement context, this is known as claimant definition and is a fundamental aspect of the mandating process and the overall settlement.  This article outlines some of the key Crown policies and considerations to be taken into account in settlement negotiations in terms of representation and claimant definition.

Large Natural Grouping

The starting point for any issues of representation and claimant definition is the development for recognition of a “Large Natural Grouping” (LNG).  The Crown policy is that, fundamentally, it will only negotiate comprehensive Treaty settlements for historical claims with LNGs. 

The definition of an LNG is not a mathematical one and is generally judged by the Crown.  The term has been interpreted in a number of different ways over the years and across the country to the point that it can truly be said that Treaty settlement negotiations is a political beast and Crown policy is simply a guideline in this regard.

Where the Crown recognises a LNG for the purposes of settlement negotiations, the detail around exactly who that LNG includes, and who will represent it, must then be addressed.  The basic premise is that any LNG will have one mandated body to represent it in all negotiations with the Crown through to a comprehensive Deed of Settlement.  In order to achieve the mandated body status, the entity must go through a robust mandating process with its beneficiaries (the iwi/hapū group that it represents) in order for the mandate to be formally recognised by the Crown. 

As part of the mandating process, the entity which seeks the mandate must clearly outline a claimant definition to indicate to the Crown and to its beneficiaries who it seeks to represent and whom it seeks to settle on behalf of.

Claimant definition

Claimant definition has four distinct parts:

• Area of interest;
• Hapū;
• Marae;
• Wai claims.

All of these contribute to the LNG status of an iwi/hapū grouping in different ways and serve different purposes.

Area of interest

The area of interest included for a LNG outlines the rohe of that group and should include the specific rohe of the hapū, whānau and Wai claims within the mandated body.  The boundary lines for an area of interest should have a basis in historic evidence, which is often where the work carried out through a Waitangi Tribunal process can be very helpful, and should factor in overlapping claimant groups and the discussions that may be required there.  It may be that some hapū/whānau or Wai claims within the mandated body are also partly covered by overlapping claimant groups and their mandates.  This is a matter for discussion as part of negotiations and mandating.

Hapū

The hapū listed within a claimant definition may or may not be intended as an exclusive list of hapū for that LNG.  A list of hapū is usually found in the final claimant definition under a Deed of Settlement to ensure that all individuals are captured where specific hapū are known or recognised as part of a LNG.  Specific wording is generally used by the Crown to ensure that the recognised ancestors of those hapū groups are also included as ancestors of the LNG in the sense that any person can benefit from the settlement by virtue of being descended from a recognised ancestor of one of those hapū within the LNG.

Marae

A list of marae is also sometimes included, particularly at very early stages of the settlement negotiations process, such as mandating.  It is not generally included in the final claimant definition for the settlement as whakapapa lines to marae are of course quite difficult as opposed to specific descent from a tupuna.

It is generally accepted that a list of marae will not be exhaustive, particularly where a LNG covers a very large area of interest.

Wai claims

Wai claims also make up an integral part of claimant definition for the very fact that all historical Treaty of Waitangi claims for a LNG must be settled.  This is part of the full and final policy of the Crown in relation to settlement negotiations.  That is, any settlement must be full and final for the region and the group which it is made on behalf of.  Any list of Wai claims will usually be concluded with a provision to include all other registered or unregistered claims made by a member of the LNG.

These four key elements, for the most part, make up the overall claimant definition for a LNG.  As part of the settlement negotiations process, the mandated body will need to engage with all those who fall within the claimant definition and will generally do so in a range of ways, as set out within a Deed of Mandate.  These will generally include things like regular newsletters, updates to websites, hui-ā-iwi and other pānui to iwi members.  It is not necessary that the mandated body come back to the wider iwi/LNG to “ratify” every step of the process.  Some groups will choose to do this because of special dynamics within their groups but it is important to note that this can be costly and time consuming, and sometimes detrimental to maintaining momentum with settlement negotiations. 

At a very minimum the mandated body must report back on key milestones and must present a Deed of Settlement and any post settlement governance entity to the group for formal ratification.

Challenges to mandate/settlement

Challenges to a mandate, or settlement, can often arise from within the claimant definition group.  There is no one way to manage these disputes and each group will differ in its approach in accordance with tikanga and iwi dynamics.  The important aspect of any internal dispute resolution is ensuring that any process (as per the Deed of Mandate and/or Trust Deed/Constitution for the mandate entity) is followed.  There must always be an ability for any person or group raising issues to be heard.

When managing internal disputes there are, however, some key principles and Crown policies which have been demonstrated in previous negotiations and sometimes supported by the Waitangi Tribunal through urgency inquiries.

It is accepted now that, a challenge from a Wai claimant, without the support of a wider grouping, is not sufficient to upset a robust mandate given by the iwi and recognised by the Crown.  The role of a Wai claimant is much like the role of any individual beneficiary to the settlement in the sense that any Māori can file a Waitangi Tribunal claim.  The fact that one person has done that where another has not, generally, does not give them any greater rights as a beneficiary or to have a say over the settlement of those Treaty grievances.

This is an area which is often confronted by mandated entities in negotiations whereby individual claimants consider that they personally should receive some form of redress based on what is set out in their statement of claim and any evidence presented to the Waitangi Tribunal.  This is not the case as settlement negotiations are of a political nature and are dealt with directly between the Crown and the mandated entity on behalf of all of those within a LNG.  This will include any Wai claimants and their claims but it does not mean that specific redress would be afforded to that Wai claimant.

With that in mind, the Tribunal has also supported the decision of the Court of Appeal in Attorney General v Mair, saying that where a challenge has significant support from a wider group within the LNG, more weight will be given to that challenge.  This is because the prejudice arising from the settlement continuing will be more substantial.  In that regard, where hapū groups seek to be removed from a mandate (rather than individuals or Wai claimants) this will be looked at more closely by the Crown and any mandated entity. 

Ultimately, the decision on whether the Crown will negotiate separately with any group who wishes to remove themselves from the mandated body or existing LNG is one for the Crown and will often be based on Crown resourcing and willingness to negotiate those hapū claims distinct and separate from the claims of another LNG.

What to look for

When reviewing a proposed Mandate Strategy and/or Deed of Mandate, it is important, to look at the dispute resolution provisions around internal disputes, together with the provisions to amend the mandate.  It is not just important that there are provisions to remove the entire mandate for an entity but that there are clear provisions as to how a group may seek to be removed from the mandate and/or how the mandate itself will be amended.  This will generally include discussions amongst the mandated entity itself first, followed by discussions with the Crown and then potentially presentation to a hui-ā-iwi for a formal decision. 

Amendment to mandate clauses are often left out of Deed of Mandates but in our view, it is generally best practice in order to avoid uncertainty where there are disputes in future.

It is also of course important to look at the representation clauses within the proposed Mandate Strategy or Deed of Mandate to understand exactly how the wider iwi/group will be represented.  Some groups may have specific hapū representation or representation of smaller rohe within the overall area of interest, whereas others may consider that a “best person for the job” model is the right approach given the iwi dynamics.  This will be determined on a case-by-case basis and often it is appropriate to look at existing structures for that iwi grouping to understand what type of model will work best, and what will provide the best accountability and results in a settlement negotiations content.

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