By Carwyn Jones
The Treaty settlement process is a staged process of negotiation between the Crown and defined Māori communities which is aimed at agreeing redress packages that will settle historical claims of breaches of Te Tiriti o Waitangi. It is a political process, though grounded in legal and constitutional rights.
Although recognised as part of New Zealand’s constitution, Te Tiriti o Waitangi is not directly, independently enforceable in the New Zealand courts. The courts have, nevertheless, played an important role in shaping the Treaty settlement process. However, this piece will only directly address the roles of the Waitangi Tribunal and Te Kāhui Whakatau (the Treaty settlement group within Te Arawhiti – the Office of Māori Crown Relations).
The Waitangi Tribunal
The Waitangi Tribunal does not settle Treaty claims. The Tribunal inquires into and reports on Treaty claims. Its work, therefore, provides the basis for the current Treaty settlement process.
The Treaty of Waitangi Act 1975 established the Waitangi Tribunal as a standing commission of inquiry that could hear claims alleging breaches of ‘the principles of the Treaty of Waitangi’ by the Crown. The Treaty of Waitangi Act does not define ‘the principles of the Treaty’ but requires the Tribunal to have regard to the two texts of the Treaty in exercising its functions and gives the Tribunal ‘exclusive authority to determine the meaning and effect of the Treaty as embodied in the two texts and to decide issues raised by the differences between them’. The key functions of the Tribunal are to inquire into and make recommendations on claims submitted to it. If the Tribunal determines that a claim of Treaty breach is well-founded, it may ‘recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future’.
Except in some very limited circumstances – claims relating to former State-Owned Enterprise land, Crown forest land, and land subject to the New Zealand Railways Corporation Restructuring Act 1990 – the Waitangi Tribunal is prohibited from making any recommendations in relation to private land. The Tribunal may also make binding recommendations in relation to those limited categories of claims, but, otherwise, its recommendations are not binding. That is, the Crown can choose whether to adopt the Tribunal’s recommendations or not.
When it was first established in 1975, the Waitangi Tribunal did not have any jurisdiction to inquire into historical claims. That is, it could only inquire into claims that the Crown had breached the principles of the Treaty from 1975 onwards. The Treaty of Waitangi Act was amended in 1985 to extend the Tribunal’s jurisdiction to address claims relating to Crown acts or ommissions going back to the signing of Te Tiriti in 1840. In 2006, the Tribunal’s jurisdiction in relation to historical claims was amended again. In this instance, the Tribunal was prohibited from receiving any new claims, which allege historical breaches, after 1 September 2008. Historical claims are defined as those that arise from acts or omissions that took place prior to 21 September 1992.
Since its establishment, the Waitangi Tribunal has heard and reported on claims covering a wide range of subject matter. These include claims relating to Te Reo Māori, environmental protection, allocation of radio frequencies, intellectual property and traditional knowledge, fisheries management, kōhanga reo, Māori land reforms, and the Trans-Pacific Partnership Agreement. However, until recent years, the bulk of the Tribunal’s work was focused on historical claims, addressing the period in which much of the large scale alienation of land and natural resources took place. Initially, the Tribunal heard individual claims as they were received. However, with the increased volume of claims that began to come in once historical claims were allowed, the Tribunal looked for ways to adapt its process. In 1993, the Waitangi Tribunal commissioned a series of research reports as part of the Rangahaua Whānui programme. These reports provided an overview of historical grievances by district and themes, and culminated in the publication of a three-volume National Overview in 1997. The Rangahaua Whānui reports enabled the Tribunal to plan its historical inquiry programme to hear and report on historical claims grouped together by geographical district. This also assisted the Crown in developing a systematic approach to the settlement of historical claims of breaches of the Treaty.
Since the establishment of the Treaty settlement process, the Waitangi Tribunal has also reported on claims which allege that actions that the Crown has taken as part of the process have, themselves, been in breach of the principles of the Treaty. In recent years, the Tribunal has also been asked to make recommendations for specific remedies where the settlement process has failed to deliver outcomes sought by the claimants.
Te Kāhui Whakatau and the settlement process
The Treaty settlement process is currently managed by Te Kāhui Whakatau (the Treaty settlement group) within Te Arawhiti – the Office of Māori Crown Relations. Although the Treaty settlement process has evolved significantly since the mid-1990s, the basic framework developed through the negotiations of the commercial fisheries (‘Sealord’), Ngāi Tahu, and Waikato-Tainui settlements has largely been maintained. The current process is set out in Healing the Past, Building the Future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown (often referred to as ‘The Red Book’).
The Red Book describes a staged process of negotiation.
The first step in preparing claims for negotiation is for the claimant to register a claim with the Waitangi Tribunal. There may well be significant research undertaken into the claim prior to registration and, whether the claim is the subject of a Tribunal inquiry and report or not, further research will be undertaken subsequent to registration if the claim is to progress through the Treaty settlement process.
The next step is for the claimant community to give a mandate to representatives to advance the settlement of all historical claims of that community. Those representatives must be able to demonstrate to the Crown that they have been given such a mandate before the Crown will formally acknowledge that mandate. The Crown will not enter into negotiations with groups that do not have a recognised mandate, nor will the Crown enter into negotiations with groups that do not have any well-founded claims or do not constitute a ‘large natural group’. There is no set number of members that a group must have for the Crown to deem it as a large natural group for the purposes of settlement negotiations, rather the policy serves to protect the Crown’s objective of organising settlement negotiations in the most administratively efficient way possible.
Once the Minister for Treaty of Waitangi Negotiations has recognised the mandate of a group to negotiate a settlement of their claims, the Crown and the claimant community move towards agreeing to the Terms of Negotiation. The Terms of Negotiation effectively set the ground rules for the negotiation. The Crown will seek to ensure that the Terms of Negotiation clearly define the claimant group who will benefit from the settlement and also record that the objective of the settlement is to finally settle all the historical claims of the settling community and to remove the jurisdiction of the courts and the Waitangi Tribunal in relation to those claims.
The negotiations themselves take place between a Crown negotiating team and a claimant negotiating team. The Crown team is primarily comprised of officials from Te Kāhui Whakatau though may include officials from other government departments (such as Treasury or the Department of Conservation) as well as specialist advisors. The mandated body will appoint the claimant negotiation team. The claimant negotiators are accountable to the mandated representatives who are in turn accountable to the claimant community.
The objective of the negotiation phase is to reach an Agreement in Principle and then agree upon a Deed of Settlement. An Agreement in Principle records the basic outline of the proposed settlement. The agreed and recorded outline of the settlement then forms the basis for working towards the more detailed Deed of Settlement. Once the Deed of Settlement is in a form that can be approved in principle, the mandated representatives and the Minister will initial a draft Deed of Settlement. The claimant community must then ratify the initial draft Deed of Settlement before the finalised Deed of Settlement is signed and settlement legislation is introduced in the final phase of ratification and implementation. Ratification is a crucial step in the settlement process because it can provide a fairly rigorous check on whether the broader claimant community approves of the settlement package that has been negotiated.
Once the settlement package has been agreed and the Deed of Settlement finally approved, various actions must then be taken to implement the settlement agreement. First, the claimant community, who can now be referred to as the ‘settling group’, must establish a Post-Settlement Governance Entity (commonly referred to as a ‘PSGE’) to receive and administer settlement assets on behalf of the community. Settlements will usually require legislation be enacted in order to implement some aspects of the agreement.
There are three main components of a Treaty settlement package: an historical account; cultural redress; and commercial redress.
The historical account is a statement agreed between the Government and the settling group that summarises the past relationship between those two parties. This provides the basis for the Government to acknowledge breaches of the Treaty of Waitangi and apologise for injustices suffered by the settling group as a result of those breaches. It is usual for the historical account, acknowledgements and apology to be set out in the Deed of Settlement in both English and Māori.
Commercial redress is provided in recognition of prejudice suffered by the settling group as a result of breaches of the Treaty of Waitangi. The commercial redress may include cash, the acquisition of government properties within the claimant group’s area of interest, rights of first refusal to purchase government properties in the future, or the acquisition of Crown forestry land and the accumulated rentals from forestry licenses.
Cultural redress is “intended to meet the cultural rather than the economic interests of the claimant group”. There is a range of mechanisms commonly used in settlements to provide cultural redress. This includes the vesting of lands that are of cultural significance to the settling group or instruments such as ‘statutory acknowledgements’ and ‘deeds of recognition’ that set out formal statements of the claimant group’s association with a specific site. These instruments create rights to be consulted in relation to the management of such sites. Cultural redress may also include arrangements for joint management of public land, place-name changes, or protocols setting out ways in which specific government departments ought to provide for input from the settling group into decisions which affect their recognised cultural interests. In recent years, we have also seen the use of innovative mechanisms such as the granting of legal personality to landscape features as part of cultural redress packages.
 See Cabinet Manual 2017 (Cabinet Office, Department of Prime Minister and Cabinet, Welington, New Zealand), pp 1-2.
 See e.g. New Zealand Māori Council v Attorney-General  1 NZLR 641; New Zealand Māori Council v Attorney-General  2 NZLR 142; Haronga v Waitangi Tribunal  NZSC 53.
 ‘The Crown’ tends to be used in the context of Treaty claims and settlement to describe the New Zealand state, encompassing all government agencies.
 s 5(2)
 s 6(3)
 The Tribunal’s specific jurisdiction in relation to these categories of land was established by amendments to the Treaty of Waitangi Act in the wake of court decisions in the late 1980s.
 This date is chosen as the cut-off point for historical claims because it is the date on which the Cabinet agreed principles for the settlement of historical claims, which became the basis for the current, systematic settlement process.
 Waitangi Tribunal reports are available at https://www.waitangitribunal.govt.nz/publications-and-resources/waitangi-tribunal-reports/
 See, for e.g., The Ngāti Maniapoto/Ngāti Tama Settlement Cross-Claims Report (2001), The Tāmaki Makaurau Settlement Process Report (2007), The East Coast Settlement Report (2010), The Port Nicholson Block Urgency Report (2012), The Ngāpuhi Mandate Inquiry Report (2015), The Ngātiwai Mandate Inquiry Report (2017), and The Hauraki Settlement Overlapping Claims Inquiry Report (pre-publication version, 2019).
 See The Ngāti Kahu Remedies Report (2013) and The Mangatū Remedies Report (2014).
 Prior to the establishment of Te Arawhiti in 2018, Te Kāhui Whakatau was known as the Office of Treaty Settlements.
 See C Jones, New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press and VUP, 2016) for a more detailed version of the explanation of the Treaty settlement process provided here.
 The Red Book and further information on the Treaty settlement process is available at: https://www.govt.nz/organisations/te-kahui-whakatau-treaty-settlements/ .
 See Te Urewera Act 2014 and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.
Carwyn Jones is a Senior Lecturer in Law at Victoria University. Jones is an expert in Māori legal issues, the Treaty of Waitangi and constitutional law.