The historical nature of the claims and the myriad of changes that have occurred since the events leading to the claim mean the Treaty of Waitangi settlement process is a very inexact process, Supreme Court Justice Sir Mark O'Regan says.
Sir Mark delivered the annual Norris Ward McKinnon Lecture at the University of Waikato's Gallagher Academy of Performing Arts in Hamilton on 17 October. His address was entitled "The challenge of the Treaty for lawyers and judges: 25 years on".
"In practice, this has meant the redress is constrained by what is considered by the Government of the day to be within the boundaries of political acceptability," he said.
"The negotiations are unlike the negotiation of an ordinary commercial transaction where there is equality of bargaining power and no real constraint on what the negotiating parties have to offer to each other than their assessment of the value of what the other party is offering. It is, as Sir Robin [Cooke] said for the Court of Appeal in the case dealing with the fisheries settlement in the early 1990s, the Sealords case ( 2 NZLR 301 (CA) at 308), an inherently political process."
Sir Mark said the model for settlements involving separate legislation for every settled claim makes Treaty settlements "an unusual hybrid of contract and statute", involving a combination of actions by the executive and legislative branches of government. This has had a significant impact on the role of the judical branch of government in litigation related to the Treaty settlement process.
Disputes during the negotiation process
From being involved in Treaty settlement negotiations as a lawyer and negotiator, Sir Mark said that as a judge he now had quite a different perspective from the one he had as a negotiator.
"It focuses on areas of dispute as to how the Treaty negotiations process plays out, rather than how settlements are made."
The Treaty of Waitangi Act 1975 does not govern the process, he said, and the Crown's policy on negotiations does not have a statutory underpinning. Rather, it is a statement of policy, contained in a publication by the Office of Treaty Settlements (Te Te Kāhui Whakatau) that is universally referred to as “The Red Book”.
"There are two significant features of the Crown’s policy that I note at the outset. The first is the stated preference for negotiating with 'large natural groupings rather than individual whānau and hapū' which carries with it various requirements as to how those negotiating for the large natural grouping obtain their mandate to do so."
That policy has attracted criticism from those who see hapū as the appropriate level for engagement, at least in some cases, Sir Mark said.
"There are practical reasons for the policy from the Crown’s point of view however. Even when negotiations are with large groupings, there are inevitably overlaps in the claims made by different groupings that can mean settlement with one grouping impinges on the ability to settle later with another, leading to cross-claims or separate but overlapping claims."
The second feature was the Crown's policy for dealing with overlaps in the claims. Many of the disputes about the settlement process concerned these two features.
Seeking resolution not particularly fruitful
"Parties to disputes about mandate or about overlapping claims that are unable to resolve the disputes themselves seek resolution from the courts, the Waitangi Tribunal and from select committees considering settlement bills. None has been particularly fruitful," he said.
The theme of important historical cases in the area was that some claims relating to Treaty settlements failed on the basis that the decisions subject to challenge were seen as decisions that would have no substantive effect unless legislation was passed, so they essentially amounted to decisions as to what would be proposed to Parliament, rather than decisions having their own practical impact on the legal rights of the claimants.
"This reflects the unique interplay of the three branches of government in the Treaty settlement process, involving a negotiation conducted by the executive culminating in a deed of settlement followed by settlement legislation, calling for both Parliamentary approval of the terms of the settlement and the legislative authorisation of the necessary action to give effect to the settlement.
"That means that, as a general statement, at least some of the decisions made by the executive in relation to Treaty settlements will ultimately become legislative proposals, so that, as the courts have noted, such executive actions are preparatory to the introduction of legislation. In the cases I have mentioned so far, the Court of Appeal found that, if the decision in respect of which judicial review is sought is a decision to introduce legislation, then the Court will not intervene if that would be regarded as an interference in the processes of Parliament."
The upshot of this was that attempts to judicially review decisions made by the executive in relation to Treaty settlements largely foundered on the basis that the decisions related to the introduction of legislation, "and the court's role has therefore been limited", he said.
Ngāti Whātua Ōrākei Trust v Attorney-General
However, the recent Supreme Court decision Ngāti Whātua Ōrākei Trust v Attorney-General  NZSC 84,  1 NZLR 116, suggests that the principle of non-interference with parliamentary proceedings should not always be applied so widely in the Treaty settlement context, Sir Mark said.
"Where there are live and ongoing issues as to rights and obligations, interpretation of settlement deeds or the exercise of statutory powers, the court’s jurisdiction will not be ousted by the mere prospect of legislation."
The Supreme Court majority’s view was that the principle of noninterference with Parliament did not require the claim to be struck out in its entirety. It held that there was a live, ongoing issue in respect of Ngāti Whātua Ōrākei’s rights according to customary law, the Treaty of Waitangi and its 2012 Settlement Act and that it must be open to Ngāti Whātua Ōrākei to seek to clarify its status in the area.
"The Ngāti Whātua decision means that the courts may in future play a greater role in Treaty settlement disputes. The balance struck by the Supreme Court in that case means that there is more scope for clarifying the rights and obligations of both disputing iwi and hapū and the Crown during settlement negotiations, without interference into parliamentary processes," he said.
"That may give iwi and hapū a forum for grievances which arise during the settlement process itself, or a way to prevent such grievances from arising at all. Of course, the Waitangi Tribunal will remain an important forum, as will alternative dispute resolution mechanisms which have had some measure of success in the past."
In conclusion, Sir Mark said the challenge for the courts was to identify where and when decisions made in the settlement process should be subjected to the supervisory judicial review of the courts while respecting the Parliamentary process.
"There are still many claims to be settled. And based on past experience, there will be many disputes about the settlement process that will need to be addressed by the Courts. So this will be a developing area."