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Ngā whakataunga tiriti – Treaty of Waitangi settlement process

by Richard S. Hill

Governments breached the Treaty of Waitangi almost from the time it was signed in 1840. In the late 20th century many of these breaches were finally acknowledged. Finding the means to redress injustices has involved careful negotiation.


Origins of the settlement process

In the 1840 Treaty of Waitangi’s English version, the Crown promised Māori ‘the full, exclusive, and undisturbed possession of their Lands and Estates, Forests, Fisheries, and other properties … so long as it is their wish and desire to retain the same in their possession’. As with indigenous people of other colonies, however, Māori suffered enormous land loss, great pressure upon their culture and language, and population decline.

The three main ways in which Māori tribes lost land and associated resources were:

  • government purchases of Māori land at low prices, with promised land reserves either not provided or inadequate to sustain Māori communities
  • confiscation (raupatu) of lands following the wars of the 1860s
  • the operations of the Native Land Court, which individualised titles to collectively owned tribal lands, making it easier for them to be sold.

These and many other historical grievances, and the Crown’s acknowledgement of and compensation for them, underlie the Treaty of Waitangi claims settlement process.

Land grab

The term ‘raupatu’ came from the phrase ‘te rau o te patu’ (the blade of the fighting club). It referred to the devastating losses to Māori from the confiscation of their land. For example, from late 1864, following Crown invasion of Waikato, the government confiscated 1.2 million acres (486,000 hectares) of tribal land. This area covered most of the lower Waikato district, including some of the lands of neutral tribes. Ngāti Maniapoto people had fought against the government, yet largely escaped the confiscation. Their land was hard to access and not considered valuable. This confirmed tribal suspicions that the invasion had been about acquiring fertile lands close to Auckland for settlement.

Māori grievances

By the late 19th century Māori had suffered a devastating drop in numbers and the loss of much of their land and other resources. However, they continued to assert the rangatiratanga (autonomy) promised to them in the Māori version of the Treaty of Waitangi and refused to be fully assimilated into a European-dominated culture and political economy. From about 1900 the Māori population began to recover from its decline and Māori political influence increased accordingly. Māori began applying legal and political pressure on the Crown to compensate them for past losses.

This pressure focused on the return of tribal land and other resources (where possible) or financial compensation. However, for almost a hundred years the Crown gave only grudging attention to Māori grievances and transferred very few resources back to tribes.


Early settlements and inquiries

Important features of the early stages of the Crown’s attempt to address Māori grievances included:

  • the South Island Landless Natives Act 1906, which led to some transfers of land, most of which proved unsuitable
  • the lakes agreements of 1922 and 1926, by which Te Arawa and Tūwharetoa tribes accepted annual compensation and other concessions in return for giving up claims to ownership of the Rotorua lakes and Lake Taupō
  • the Crown’s growing recognition that tribes that had lost large tracts of land, especially through Crown confiscation, would continue to agitate until action was taken to compensate them.

Rid the records

When introducing the South Island Landless Natives Act 1906, Native Minister Sir James Carroll said, ‘[W]e are coming now to a point when we will have to settle … claims which, I regret to say, have been in existence too long. Generations have passed away with promises unfulfilled; but we have reached that stage now when, I think, these matters should be settled, so as to clear our consciences and rid the records of any stigma attachable to the reputation of the colony and the Government.’1

Commissions of inquiry

Two commissions of inquiry, the Jones Commission of 1919–20 and the Sim Commission of 1926–27 (published in 1928), concluded (to the government’s discomfort) that Māori had been treated unjustly in the past. The commissions found that past governments should have exhibited a ‘more liberal spirit’ in their dealings with the Ngāi Tahu people of the South Island, and that some North Island tribes had been subjected to unjust or excessive land confiscation. Financial compensation was recommended.

Negotiations and settlements

Negotiations began with the major tribes affected by the recommendations of these commissions. These negotiations dragged on for many years, partly because the government would not consider returning land, the most precious lost resource. The economic depression, the start of the Second World War and the desire of other tribes for negotiations all delayed progress. However, settlements were finalised in 1944 for Taranaki and Ngāi Tahu iwi, in 1946 for Waikato–Maniapoto iwi, and in later years for some other tribes. Compensation was monetary, and broadly followed the recommendations of the commissions some two to three decades earlier. In return the iwi had to accept that these settlements would be final.

The money would be paid to tribal trust boards, following a precedent set by the lakes settlements of the 1920s. The amount was small by modern standards – £3,000 annually for Ngāi Tahu for 30 years (around $230,000 annually in 2011 terms), and £5,000 annually paid permanently to Taranaki and Waikato iwi (around $390,000 in 2011 terms), with £1000 extra per annum for Waikato for 45 years and a £300 payment to Taranaki to compensate for the destruction of property during the invasion of Parihaka in 1881. As the decades went by, inflation greatly lowered the value of the payments. Some adjustments were made but the original settlements were increasingly seen as forced and unreasonable. The point of the compensation had been to right the wrongs of the past, and this had clearly not happened.

Urbanisation

The huge Māori migration to the towns and cities in the decades after the Second World War transformed Māori into a largely urban people. Yet Māori reaffirmed their rangatiratanga through both tribal resilience and reorganisation in cities and large towns. From the early 1970s a political and cultural flourishing, generally called the Māori renaissance, added Māori voices to those of peoples elsewhere in the world who demanded indigenous rights.

As the Māori renaissance gained momentum, demands for the Crown to honour the Treaty of Waitangi came from many different groups, including urban-based Māori and their Pākehā supporters. The return of tribal land formed a central part of these demands. At the same time, due to a faltering economy from the 1970s, Māori were increasingly economically marginalised. Restoring an economic base to Māori became an important element in asserting rangatiratanga.

Footnotes

The Waitangi Tribunal and negotiated settlements

Historical treaty claims

In 1975 the Labour government set up the Waitangi Tribunal to hear and make recommendations on contemporary claims. However, Māori grievances related mainly to the Crown’s historical actions and omissions from the beginning of colonisation. This became increasingly clear in the 1980s, when the tribunal gained momentum and mana under its second chair, Edward Taihakurei Durie. After great pressure, the Labour Party agreed to empower the tribunal to hear grievances dating back to 1840. Following Labour’s election victory in 1984, a 1985 amendment to the Treaty of Waitangi Act 1975 allowed historical grievances going back to 1840 to be heard. The tribunal began to issue reports addressing a multitude of grievances – including land, environmental, cultural and language loss – based on historical events.

The tribunal’s findings generally upheld the grievances and its recommendations included significant transfer of land and money to Māori. Reparations for past losses were the more urgent because government economic policies had greatly increased unemployment, with Māori suffering disproportionately. But compensation issues essentially related to treaty principles, which (partly in response to judicial and tribunal findings) now implied development of a partnership relationship between the Crown and Māori.

Treaty of Waitangi Policy Unit

Confronted with many recommendations for settlement from the tribunal, in 1989 the government set up a co-ordinating unit for treaty policy advice – the Treaty of Waitangi Policy Unit (TOWPU), within the Department of Justice. With other officials, this provided ministers with advice on a principled approach to the treaty. As a result, in May 1989 Prime Minister David Lange released five principles for Crown action on the Treaty of Waitangi. Principle five accepted that the Crown had ‘a responsibility to provide a process for the resolution of grievances arising from the Treaty’.1

TOWPU had the lead role in developing this process, beginning with Waikato–Tainui’s claims. Although even individual Māori could make claims to the Waitangi Tribunal, in general the Crown chose to negotiate settlements with larger groups such as iwi or groupings of iwi. A single settlement could therefore cover a large number of claims.

First treaty claim settlement

The settlements of the first half of the 20th century had not been conducted under the Treaty of Waitangi. In 1989 a mediated negotiation of a land-based claim under the Treaty of Waitangi was agreed. Land at Waitomo Caves, a major tourist attraction, was transferred to the two hapū whose territory included the caves. Management of tourism and other operations was to be shared with the Department of Conservation, with licence fees for guiding and souvenir sales split between the Crown and the Māori owners. The Crown loaned $1 million to the Māori owners as an advance on these licence fees.

Fisheries settlement

Over the following four years, several more treaty claims were settled. The largest of these was the so-called ‘Sealord’ settlement, a follow-up to an interim pan-tribal fisheries settlement in 1989. In 1992 the government negotiated a full and final settlement of all Māori commercial fishing claims under the Treaty of Waitangi. This was the first final settlement to cover all Māori tribes. They were assisted to purchase 50% of the Sealord fisheries company, allocated a 20% share of new quotas of fish entering the quota management system, and provided with a fisheries commission to distribute assets. In total, the settlement was worth around $170 million; it also provided customary food-gathering rights.

Footnotes
    • Principles for Crown action on the Treaty of Waitangi. Wellington: Department of Justice, 1989 p. 15. Back

Different paths to settlement

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.

Profound regret

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.

Footnotes
    • Douglas Graham, Trick or treaty? Wellington: Institute of Policy Studies, 1997, p. 49. Back

Refining the settlement process

Assisting progress on claims settlement

A number of measures were introduced to assist progress on claim settlement:

  • The Crown negotiated with representatives of claimant communities once it felt that those representatives had a suitable mandate from their people.
  • As a result of negotiations following court action, Crown lands or other interests transferred to state-owned enterprises had ‘memorials’ placed on their titles. Buyers of those Crown interests had to agree to sell them back to the Crown for use in claim settlements if required to.
  • Land surplus to Crown requirements but identified by claimants for potential use in a treaty settlement could be placed in a ‘land bank’. By 2011 there were 15 regional land banks throughout the country managed by the Office of Treaty Settlements (OTS), set up in 1995 within the Department of Justice (later the Ministry of Justice) to replace the Treaty of Waitangi Policy Unit.
  • Down-payments on final settlements, assistance with negotiating costs, waiving the requirement for Crown-owned marginal strips alongside returned water systems, and outright gifts of assets were among other matters conceded by the Crown to secure settlements.

Stages of a settlement

The main stages to reach settlement of claims were:

  • establishing the nature of the treaty breaches (which might involve detailed research, and hearings before the Waitangi Tribunal)
  • establishing that the claimant group – usually an iwi or group of tribes – had a mandate from its members to negotiate settlement
  • negotiating an agreement in principle, which then needed endorsement from the claimant community
  • a deed of settlement, setting out the detailed terms of the settlement of the claims against the Crown
  • legislation confirming the settlement.

Elements of a treaty settlement

A treaty claim settlement was often made up of:

  • a historical account of the claim issues and events, agreed between the Crown and the claimant group
  • acknowledgement of breaches and apology for them from the Crown
  • financial redress in the form of cash, Crown-owned property or a combination of these and other items –such as a right of first refusal to buy surplus Crown-owned property
  • cultural redress, for example recognition of the claimant group's cultural associations with customary food-gathering areas or sites of spiritual significance
  • agreements to change the official place names of certain sites, to reflect their original names; for example Ninety Mile Beach was renamed Te Oneroa a Tohe.

Concluding a settlement

Concluding settlement of a treaty claim was often an occasion for relief and celebration by all parties. Two hundred Waikato–Tainui people wearing specially made blue scarves and neckties thronged Parliament’s public gallery in 2010 to hear the final reading of the bill settling their negotiations over the Waikato River. The settlement provided for co-management of the river. It also enabled the tribe to carry out customary activities on the river such as fishing for eels and whitebait, launching ceremonial waka (canoes) and transporting human remains without the need for permits.

The ‘Treelords’ settlement

Following the 1998 Ngāi Tahu settlement, a further 15 settlements were negotiated and agreed by 2008. All were for multi-million dollar compensation packages. The largest in terms of financial value was the 2008 ‘Treelords’ (nicknamed after the Sealord fisheries settlement) agreement signed with seven central North Island tribes. It returned $196 million of forest land in total. In addition, the tribes were to receive rentals that had accumulated since 1989 on the land, valued at $223 million. Final comprehensive settlements were to be negotiated later with all central North Island tribes.

Settlement progress by 2011

By December 2011 deeds of settlement had been signed with 44 claimant groups. Terms of negotiation and agreements in principle – earlier processes towards reaching a treaty settlement – had been signed with a further 15 groups. Those negotiations and settlements were with groups whose tribal areas covered the bulk of the land area of New Zealand.


Problems for treaty settlements

Some politicians, including New Zealand First leader Winston Peters, criticised the increasing number of claims registered with the Waitangi Tribunal, suggesting that a Treaty of Waitangi ‘gravy train’ had formed around the claims process.

Conservationists were concerned about the impact of claims on conservation land, and many Pākehā were concerned that settlements would affect their rights. The Crown was conscious of the need to avoid creating fresh injustice when negotiating redress and rejected all calls for the return of lands in private ownership. Public Access New Zealand was one of the lobby groups formed to oppose aspects of treaty settlements.

The Crown’s wish to negotiate comprehensive settlements with large groupings of claimants at or above the level of iwi caused further difficulties. Many Māori groups argued that negotiations should occur at hapū level, but the Crown responded that this would create enormous logistical problems.

The question of which claimant groups should receive the mandate to negotiate on behalf of their people created strife within some tribal groupings and between groups and the Crown.

There were many debates about boundaries between tribal or subtribal groupings, an issue increasingly tackled by agreements on overlapping rights.

‘Treaty fatigue’ and other controversies

Other controversies affecting the treaty claims settlement process included:

  • perceived ‘treaty fatigue’ among some Pākehā
  • settlements depicted by politicians and pressure groups as discriminatory in favour of Māori
  • settlement processes said to violate national unity or, alternately, multiculturalism
  • settlement policies said to benefit either a tribal elite or Māoridom alone, in a country where much mixing of peoples has occurred
  • other challenges for the Crown; for example in 2010 the tribunal began hearings on a claim by Ngāpuhi and other northern tribes which included the assertion that they had never ceded sovereignty under the treaty.

Relativities

Settlements needed to reflect many factors, including size of claimant groups and the nature and degree of treaty breaches. The Crown had found it difficult to negotiate final settlements without claimants knowing what other tribes were to obtain. In 1994 the government imposed a $1-billion fiscal cap on total settlements. There was universal opposition among Māori to the cap and it was soon officially dropped. However, by then Waikato–Tainui had signed its settlement, worth 17% of the total ‘fiscal envelope’ at 1994 values. Thereafter relativities remained informally in place and iwi whose settlements included relativity clauses were to receive extra resources if settlements exceeded the billion-dollar figure, as adjusted for inflation from 1994.

Pace of negotiations

The pace of settlements picked up speed when Labour’s Deputy Prime Minister Michael Cullen took over treaty negotiations in 2007, and continued under the National-led government’s Minister for Treaty of Waitangi Negotiations Chris Finlayson from 2008. The rapid pace was criticised by some tribes who claimed that the government placed undue pressure on them to settle. Others, however, pointed to the long time they had waited to see their claims addressed.

Future of settlement process

Despite the many controversies, by the 21st century treaty settlements were accepted by the political mainstream and treated as normal events within New Zealand. This acceptance was helped because no more historical treaty claims were allowed to be lodged after 2008. The National-led government elected that year set 2014 as a target for final settlement for all such claims.

Settlements have been negotiated quickly by international standards and have involved significant resource transfers, as well as important cultural redress and apologies. New Zealand’s settlement processes are widely regarded internationally as an efficient model for the reconciliation of historical grievances and a relatively fair way of achieving historical justice for indigenous people who have suffered from colonisation and its aftermath.


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How to cite this page: Richard S. Hill, 'Ngā whakataunga tiriti – Treaty of Waitangi settlement process', Te Ara - the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/nga-whakataunga-tiriti-treaty-of-waitangi-settlement-process/print (accessed 20 August 2019)

Story by Richard S. Hill, published 20 Jun 2012