East Coast Settlement Report

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By Carwyn Jones (Ngati Kahungunu) Lecturer, Faculty of Law, Victoria University of Wellington from his Blog Ahi Ka Roa- The Waitangi Tribunal has released two significant reports within the last week. First was the Tribunals report on the Treaty claims of iwi and hapu of the Wairarapa ki Tararua district. This report is the culmination of a major district inquiry and was released on 26 June 2010. I will write a post on that report in due course, but for the moment I would like to focus on the Tribunals East Coast Settlement Report, which was released yesterday.

The East Coast Settlement Report is the latest in a series of reports which address aspects of the Treaty settlement process itself. In fact, this report provides a helpful summary of previous Waitangi Tribunal comment on Crown settlement policy. The report also addresses the recent Court of Appeal decision in Attorney-General v Te Kenehi Mair (which was the subject of a previous post on this site).

The East Coast Settlement Report relates to the settlement negotiations that are currently under way between the Crown and Te Runanga o Ngati Porou. A number of claimants who submitted claims for the Waitangi Tribunals East Coast district inquiry did not wish to enter direct negotiations with the Crown without first going through a full district inquiry. Some of these claimants, who claim to represent the kin groups Ruawaipu, Uepohatu, and Te Aitanga-a-Hauiti, sought recommendations from the Tribunal that the settlement between the Crown and Te Runanga o Ngati Porou should be delayed. They contended that the Runanga has no mandate to negotiate the settlement of their claims and that the Crowns recognition of the Runangas mandate is contrary to the principles of the Treaty. The Tribunal held an urgent hearing of these claims in December 2009 and has now reported its findings and recommendations in the East Coast Settlement Report.

The report identifies a number of aspects of the mandating process that might have been improved upon, although the Tribunal determined that any flaws in the process were not substantial enough to warrant delaying the settlement. The Tribunal was mindful that such a delay would significantly prejudice those who support Te Runangas mandate. Furthermore, the Tribunal noted that a full inquiry was unlikely to address the many of the issues at the heart of the claimants concerns, which were really issues between Maori groups, upon which the Waitangi Tribunal has historically been reluctant to comment.

However, the Tribunal did find a number of flaws in the Crowns Treaty settlement policy and recommended a number of changes to that policy to ensure that the settlement process is fair and that settlement agreements are durable.

These recommended changes included the following:

  • The Office of Treaty Settlements should call for submissions at the point that a proposed mandating strategy is submitted, as well as after a deed of mandate is received in order to allow ample time for interested parties to voice their concerns and for the Crown to be made aware of potential issues at an early stage.
  • The information provided as part of any mandating strategy must include:
    • the specific claims (Wai numbers) to be included in a proposed settlement;
    • a clear definition of the claimant community on an iwi, hapu, marae, and whakapapa basis;
    • and the specific geographical area to be covered by a proposed settlement.
  • The Office of Treaty Settlements should, at an early stage, write to all Wai number claimants whose claims might be extinguished if a proposed settlement goes ahead, and should also assist any body that is mandated to negotiate the settlement of claims to communicate settlement milestones and developments with affected claimants.
  • The Crown should adopt a more proactive role in monitoring developments during the mandating strategy process in order to discharge its responsibilities towards claimants who may feel marginalised as a result of the process.
  • In order to lessen the likelihood of claimants seeking assistance and protection through the Waitangi Tribunals urgent inquiry process, the Crown must recognise that it has a responsibility to ensure that all interested parties in a negotiated settlement have access to unhindered participation at every stage of the mandating process.
  • The Office of Treaty Settlements should update its policy guide, Ka Tika a Muri, Ka Tika a Mua, to reflect changes that have arisen out of the recommendations of Waitangi Tribunal reports on mandating issues and Crown settlement policy in general.

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