New Zealand Law Society - Waitangi Tribunal, Treaty settlements and beyond

Waitangi Tribunal, Treaty settlements and beyond

Waitangi Tribunal, Treaty settlements and beyond
Waitangi Treaty Grounds, Bay of Islands

Tara Hauraki (Ngāpuhi, Ngati Porou) explores the developments for Māori within the Treaty of Waitangi legal and political landscape over the past 35 years, including the context around what settlements mean for Māori in addressing historical treaty grievances.

Reflecting on developments for Māori within the Treaty of Waitangi legal and political landscape over the past 35 years, the words of Tā Mason Durie in his 2005 work, Nga Tai Matatu: Tides of Māori Endurance, come to mind. Likening the uneven nature of Māori progress to the ocean tide, Tā Durie wrote: “it ebbs and flows and is subject to excesses that can have dramatic repercussions”.

The tide, he observed, also symbolises endurance, which itself is founded on the dimensions of time and resilience. The temporal dimension – time – has a past and a future, but not necessarily a single starting point nor a final destination. Resilience, the second dimension of endurance, also has a past and a future. But unlike time, which “acts as a testimony to progress, resilience is an expression of the effort needed to steer a steady course.” It recognises both adversity and triumph, and celebrates strength of purpose, determination, and capacity to survive – if not in identical shape, then at least in recognisable form.

The Waitangi Tribunal has been fundamental in shaping and telling this story. Its jurisdiction in relation to Treaty of Waitangi claims is unique in New Zealand’s legal and constitutional framework. The Tribunal inquires into the Treaty-consistency of actions and policies of the Crown and Acts of the legislature, as well as failures to act, develop policy or enact legislation from 1840. The benchmark against which it evaluates Crown action is the “principles” of the Treaty – an acknowledgement that the texts in Māori and English “differ”, and that the Treaty must speak relevantly in today’s world.

Tara Hauraki

Since its jurisdiction was extended in 1985 to claims back to 1840 well over 3000 claims have been filed in the Tribunal. The Tribunal has therefore devoted a large portion of its time and resources over the last 30 years inquiring into and reporting on historical Treaty claims. It has now completed historical inquiries into claims covering 83% of the country by land area.

Historical inquiries are complex. They relate to whole districts and cover a century and a half of interaction between Māori and the Crown. The Tribunal’s reports also do much more than simply catalogue Crown breaches of the Treaty. They provide a comprehensive historical record for claimant groups. For many iwi and hapū, the compilation of a written historical record is just as, if not more, valuable than the Tribunal’s findings of Treaty breach.

The commitment and effort that has been required by claimants to take their historical claims through the Tribunal process cannot be overstated. Immense amounts of research and evidence is needed to support a claim of Treaty breach. Hearing the claims themselves is a process that can and often has taken many years. Sadly, in many cases by the time the Tribunal has reached the point of reporting on the claims before it, the original claimants have passed away.

Alongside, and sometimes in conflict with, the Tribunal’s historical district inquiry process, the Crown has been engaged in a process of negotiating Treaty settlements to provide redress for historical breaches of the Treaty.

The settlement process had its genesis in the 1980s, when the Waitangi Tribunal’s jurisdiction was extended. Following associated landmark legislative and judicial developments in the late 1980s (arising from the Lands and Forests cases in 1987 and 1989 respectively), a Crown policy was formulated for comprehensive settlements between Māori and the Crown of historical Treaty grievances.

The first major settlement following the policy developments of the 1980s was the pan-Māori fisheries settlement, given effect through the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. The first major Treaty settlements of historical Treaty grievances with iwi groups were completed with Waikato-Tainui in 1995 and Ngāi Tahu in 1998 through the Waikato Raupatu Claims Settlement Act 1995 and the Ngāi Tahu Claims Settlement Act 1998.

Since then, approximately 70 Acts of Parliament providing for settlement of historical Treaty grievances have been passed – largely on the model of those first settlements, in particular the Ngāi Tahu settlement of 1998 which was the first comprehensive settlement of iwi claims.

On the face of it, one might be tempted to say (and many have) that the Treaty narrative over the past 35 years is a story from grievance to settlement and relative collective prosperity. Consistent with this narrative, much is often made about the growing Māori economy. And yes, Māori economic success is surely something to be celebrated. However, as one practitioner put it, the trajectory from “grievance to settlement to governance to commercial success, though true of some iwi, has not been the path for all Māori entities”. Indeed, it should also be recognised that many major contributors to growth in the Māori economy are Māori land trusts and incorporations who have not settled with the Crown. They have been successful in managing their way through the numerous complexities that they have often inherited in relation to their land with limited or no Crown intervention.

Further, while the achievement of a Treaty settlement is undoubtedly a significant milestone for iwi, it is also inevitably a compromise. The fact remains that Treaty settlements do not address squarely what Māori lost through Treaty breaches, nor what it might take to make material changes to their position in New Zealand society today. While they might act as a “leg-up”, we should be careful about seeing settlements as the panacea to Māori economic disadvantage and disenfranchisement. They are not; a fact borne out by the poor statistics we are confronted with repeatedly in relation to Māori social, economic and health outcomes.

While the achievement of a Treaty settlement is undoubtedly a significant milestone for iwi, it is also inevitably a compromise. The fact remains that Treaty settlements do not address squarely what Māori lost through Treaty breaches

Ultimately, the policy considerations for the Crown in Treaty settlement go more to relative fairness – that is, as between settling groups and settlements – than they do to the fairness of the settlements in absolute terms. But even then, there are inequities. For instance, the relativity mechanisms included in the Waikato-Tainui and Ngāi Tahu settlements have never been repeated in subsequent iwi settlements. Similarly, the special relationship Tuhoe, Taranaki iwi or Waikato-Tainui have to their natural resources is not dissimilar to that which other iwi have. But the redress negotiated in relation to Te Urewera, the Waikato River and and Taranaki maunga is not available to all. Treaty settlements are uneven and unequal. Where innovations in settlements are attained, they are hard fought for by the settling groups.

Negotiating Treaty settlements has proven to be incredibly divisive, both internal to settling iwi groups and with other groups who might have overlapping interests. The Crown’s sometimes rigid and/or inconsistent application of its policy has resulted in numerous contemporary claims to the Tribunal and to the Courts.

In this context, it is no wonder that some groups have chosen to forgo Treaty settlement negotiations altogether and have instead attempted to utilise other, and potentially more fruitful, pathways to redress. In recent years, groups in Turanga, Wairarapa and Muriwhenua have sought to have land taken from them in breach of the Treaty returned directly pursuant to the Tribunal’s resumptive jurisdiction. The Tribunal’s powers to make binding recommendations were integral to the Fourth Labour Government’s state sector reforms following the Lands and Forests cases. Yet, notwithstanding that the quid pro quo for the Crown being able to transfer a large area of land to State Owned Enterprises was the additional power given to the Tribunal to make binding recommendations under the new statutory provisions added to the Treaty of Waitangi Act, the Crown has steadfastly and vigorously opposed the exercise of the Tribunal’s resumptive powers. The Crown’s recognition of its Treaty promises then, still comes in ebbs and flows.

Many have viewed, and continue to view, the Treaty of Waitangi as a historical grievance-type issue. For Māori, the Crown’s historic failure to uphold its commitments has only ever been one aspect of that discussion. Māori have always seen a more relationship-based future for the Treaty.

The Crown has ongoing Treaty obligations beyond settlements. We should therefore resist the notion that the job is done when settlements are reached, or that settlements enshrine the sum of the Crown’s obligations to iwi going forward. To this extent, the Tribunal will, I think, remain integral in shaping the story. Indeed, the many contemporary and kaupapa claims which the Tribunal is only now turning its attention to suggest that it still has a role in helping to steer the course. These inquiries will also, of course, require the Crown to consider different forms of relief to traditional Treaty settlements.

The task ahead may, therefore, be just as challenging as the task that came before. However, the way in which iwi and hapū have navigated the “Treaty” space over the past 35 years is a testament to their endurance – reflecting an ongoing struggle for proper recognition but also a great capacity for adaption and a propensity for turning adversity into accomplishment.