The New Zealand Government today (8 December 1994) announced
new proposals for the settlement of claims by Maori under the
Treaty of Waitangi.
The proposals are as follows:
1 Settlement Envelope
A "Settlement Envelope" totalling NZ $1000 million will be set
aside over "about" a 10 year period to settle all "historical"
claims ie claims about Crown actions prior to 21 September 1992
(the date on which Cabinet agreed certain principles for settling
claims, and two days before the Sealord Fisheries Settlement was
signed). The amount of the envelope is not negotiable,
although the concept of the envelope is. Some expenditure
already incurred in settling claims will be deducted from the
envelope (including $170 million for the "Sealord Settlement"
which settled all claims to commercial fisheries). Maori do
not have to accept the envelope concept to enter into
negotiations, although they will be bound by it. As the
envelope is used, the residual amount will be updated by the
Consumer Price Index (ie inflation adjusted). Current
programmes for Maori welfare are not affected.
2 Settling Particular Types of claims
Conservation estate: this includes all lands administered by
the Department of Conservation. Because of the public interest
in them, they will be used only sparingly in settlements, and
current levels of management and access retained. Properties
which might be returned include waahi tapu (sacred sites),
other sites of special importance (certain lake and river beds
and mountains) and other "discrete parcels" of land.
Consultation with conservation groups will proceed on a case
by case basis.
Natural resource claims: the Crown will admit only claims to
use rights (not ownership rights) and "cultural and spiritual
values" in "natural resources" (ie resources other than land).
Further, claims to the use of resources "substantially unknown
or unused" at 1840 will not be admitted.
Gifted lands: lands gifted to the Crown, or where the Crown
arranged a gift to a third party by Maori (often for schools),
will be specially considered, and Maori conceptions of gifting
(which require the return of a gift when land is no longer
used), will be taken into account. Claims to gifted lands
where current statutory obligations (eg Public Works Act) or
common law obligations apply will be dealt with outside
Waitangi Tribunal procedures.
3 Negotiations Process
Revised negotiations procedure: a "Negotiations Work
Programme" would modify the current process, placing greater
emphasis on work needing to be done before a claim is accepted
for negotiation, so that, once accepted for negotiation,
settlement quickly follows. Consequently, claims must be fully
researched and proved before they will be accepted onto the
work programme. Even if the Waitangi Tribunal believes the
claim has been proved, the Crown will develop its own view.
Claimant representation: claimants will be required to present
a "deed of mandate" before negotiations commence. A proposed
law change would allow the Waitangi Tribunal to decline to
hear claims where a sufficient mandate was lacking.
Ensuring finality: the deed of mandate would be publicly
notified to help define the beneficiaries of a claim
settlement. Where there is substantial disagreement, an
independent body would assist in resolving the issue. Claimant
groups would also be asked to formally endorse the legal body
receiving settlement assets, such endorsement covering how the
legal body will be structured to ensure benefits are properly
distributed. The jurisdiction of the Waitangi Tribunal and the
courts to consider claims would be gradually wound back as
settlements are concluded. Ideas are also sought for changes
to the current system of memorials on Crown forest lands and
assets transferred to state owned enterprises which hold them
for future settlements. The government would like these
removed before final settlements are reached. A law change is
also proposed to provide that Tribunal not hear claims settled
since September 1992.
4 Consultation over these proposals
A series of regional hui will be held, followed by a national
hui (meetings) in April 1995. There is no structured
negotiation with non-Maori groups, but submissions may be made
until 19 May 1995. Beyond that, no process is outlined.
BACKGROUND: in 1975 the Waitangi Tribunal was established to
hear Maori claims concerning actions of the Crown affecting
them adversely at any time since 1840 (the year in which the
Treaty of Waitangi was signed guaranteeing to Maori "full,
exclusive and undisturbed possession" of their lands, forests
and fisheries and other valued properties as long as they
wished to retain them). In 1992 the government signed a $170
million deal which was intended to satisfy all claims to
commercial fisheries. In that settlement, the government noted
that it had only limited resources to settle claims. These
current proposals are the logical development of that idea.
The proposals, although officially released today, have been
"leaked" for some weeks, so their details were known in
advance. The response, both from Maori groups and opposition
parties in Parliament, has been mixed. Important Maori
organisations and individuals have come out against the basic
idea of a fixed "settlement envelope" because it may cause
friction among tribes.
Tom Bennion
editor, Maori Law Review