Tribunal or direct negotiation
Although the National Party expressed scepticism during the 1990 election campaign about the Treaty of Waitangi, the momentum of indigenous rights and historical justice had become too strong to halt. However, many Māori were impatient at the slow pace of claim settlement under the lengthy and expensive process of Waitangi Tribunal hearings. In particular, leaders of the large Waikato–Tainui tribal confederation remained prepared to bypass the Waitangi Tribunal and negotiate directly with the government over their treaty claims. These mainly concerned large areas of Waikato land confiscated from 1864.
Direct negotiations became a permanent option for claimant groups not wishing to go through the Waitangi Tribunal’s processes. A negotiating model was adapted from Canada, with the Treaty of Waitangi Policy Unit taking the lead role in coordinating officials from the various relevant ministries for all negotiations – including those based on Waitangi Tribunal reports and recommendations.
From grievance to development
National’s Minister of Justice Douglas Graham soon became the leading treaty minister, and formally took up the additional portfolio of minister in charge of Treaty of Waitangi negotiations in 1993. By then major negotiations were well underway with Waikato–Tainui and with the Ngāi Tahu people of the South Island, along with a number of smaller claims. Graham argued that settlements must be sufficient for tribes to move ‘from grievance mode to development mode’.1 Although only a fraction of what had been lost could be returned in reparations, sufficient resources should be provided to make settlements durable. Cultural and other factors in settlements, such as apologies from the Crown for its past breaches of the treaty, would assist the reconciliation process. Māori often felt that Crown assets transferred as a result of settlement negotiations were ‘too little, too late’, but saw that they could provide a base for tribal renewal and enhancement.
The claim settlement with Waikato–Tainui included a formal apology from the Crown, delivered by Queen Elizabeth II during her 1995 visit to New Zealand. This was the first time the Crown had apologised to an indigenous people. The apology read in part:
‘1. The Crown acknowledges that its representatives and advisers acted unjustly and in breach of the Treaty of Waitangi in its dealings with the Kiingitanga and Waikato in sending its forces across the Mangataawhiri in July 1863 and in unfairly labelling Waikato as rebels.
‘2. The Crown expresses its profound regret and apologises unreservedly for the loss of lives because of the hostilities arising from its invasion, and at the devastation of property and social life which resulted.’
Settlement with Waikato–Tainui
In May 1995, after lengthy direct negotiations, a final deed of settlement was signed between the Crown and Waikato–Tainui. This pioneering agreement to settle land-based grievances included the return to the iwi of state-owned land and also financial compensation, a total package worth $170 million. Much later, in 2010, Waikato–Tainui settled its claim over the Waikato River.
Settlement with Ngāi Tahu
Ngāi Tahu’s treaty claim concerned the 34.5 million acres of tribal land – more than half the land mass of New Zealand – obtained by the Crown in land purchases between the 1840s and the 1860s. The Waitangi Tribunal’s 1991 report stated that in these purchases the Crown had acted unconscionably and had repeatedly breached the treaty. The Crown’s subsequent negotiations with Ngāi Tahu addressed the iwi’s wish to regain customary harvesting and other rights over flora and fauna, particularly in conservation lands. In 1998 compensation to the value of $170 million was agreed. Cultural redress was also negotiated, and ownership of pounamu (greenstone or jade) was restored. Mt Cook (New Zealand’s highest mountain) was formally renamed Aoraki/Mt Cook and returned to Ngāi Tahu, to be gifted back to the people of New Zealand.