February 2013 Māori Law Review
Nicola R Wheen and Janine Hayward (eds)
Bridget Williams Books, Wellington, 2012 (283 pages)
Reviewed by Tom Bennion, Bennion Law
With 34 treaty settlements completed since 1992, several more ready to proceed, and perhaps about 60 more to come, this is an important and timely book. Wheen and Hayward have assembled some very experienced authors and produced a useful book for anyone involved in settlements, and anyone looking at policy issues for the future.
The context for Treaty settlements
The book is in three parts. The first part, "The Context for Treaty Settlements" opens with an essay by Dr Michael Belgrave on settlements, or more broadly, Crown-Maori 'engagements', attempted in previous eras, starting with the Treaty itself. His historical survey covers not just the mid-twentieth century settlements which are the origin of many of the Maori trust boards in operation today, but also petitions from iwi and special arrangements of the nineteenth century such as the agreements with the Tuhoe and Rohe Potae leaders in the 1880s and 1890s. Belgrave argues that an important gap in the historical approach to settlements has been a failure to provide for review and revision.
Dean Cowie explains the origins of the current settlement process and outlines its features and settlements to date. He also looks at the challenges that face settlement policy such as pressure to include parts of national parks (a Crown ‘line in the sand' which may now have been crossed with the Tuhoe settlement including Te Urewera National Park).
The rest of the first section contains insightful analyses of current settlement practice from authors who have been around the negotiation table and have direct experience of the successes and challenges that arise.
Baden Vertongen's important discussion of the trends in litigation around settlements also touches on the Supreme Court Haronga decision concerning binding recommendations over Crown forest lands, which came out as the book was in preparation. Its implications are just now being teased out - most recently in a Waitangi Tribunal report in February 2012 on remedies recommendations for Ngati Kahu.
The second part of the book, "The Treaty Settlements" examines particular settlements. It includes an interesting discussion by Maureen Hickey on the value of Crown statements of apology in settlements.
Paerau Warbrick, discussing land claim settlements, includes an extended oral commentary from a 68 year old Maori male living in the Bay of Plenty. His reflections on what settlements mean in practice for many Maori provide an insightful and thoughtful piece.
Linda Te Aho and Margaret Mutu discuss freshwater and fisheries settlements respectively. Michael Stevens talks about the treatment of special resources, pounamu, virgin podocarp forests and titi in the Ngai Tahu settlement.
Damien Stone comments on financial redress and points out the distorting effect of the relativity clauses in the Waikato-Tainui and Ngai Tahu settlements that provide for top-up payments to those two groups once overall settlements throughout New Zealand exceed $1 billion in 1992 dollars. That background constraint means that groups are incentivised to find inventive ways to frame redress so that it will not be counted towards the $1 billion sum. The first payments under the relativity clauses are now being made and will likely be the subject of arbitration and possibly litigation.
After Treaty settlements
Part three of the book "Post-Treaty Settlements", looks to the future, and how settlements have and will change Maori communities.
Robert Joseph examines the Crown preference for settling with 'large natural groupings', the tensions created by settlement processes, the lack of any clear statutory criteria around the mandating of groups and concerns about maintaining the distinct identity of Maori communities in a corporate setting.
Maria Bargh notes the quite different expectations of the Crown and Maori in the current round of settlements. For example, the consistent call by Maori for constitutional change, where the Crown is focussed on putting to bed historical issues.
Mai Chen argues that some constitutional change is being requested by Maori in the current process, and will be required to better provide for Maori autonomy as a result of this round of settlements. However, she considers that NZ's current political arrangements and mood mean that there are unlikely to be any grand gestures, such as enshrining the Treaty in an overarching constitutional document.
The book ends on a note that all contributors seem to agree on, that the current era of settlements is unlikely to be the end of all settlement activity, despite dates being set by governments (and regularly revised) about when claims will finally be dealt with. But this is certainly the most extensive effort to date to settlement historical claims, and for that reason perhaps has the most chance of success at achieving some finality.
However, picking up on the point made by Dr Belgrave, it is telling that the current settlements, relativity clauses aside, make no provision for formal review and revision. There has never been any overarching legal framework for historical settlements in any era. In as far as the Treaty of Waitangi Act 1975 can be said to provide a kind of framework, that statute has developed and continues to be amended in an ad hoc fashion as contingencies arise. Amazingly, the Waitangi Tribunal itself has not been reviewed since its inception in 1975.
It seems that, like New Zealand's constitution, we have made a habit of getting by and muddling along, or, as Maria Bargh puts it, just "getting on with things". But the ad hoc approach has its unintended consequences, the relativity clauses being an example, and the extended fight over distribution of the fisheries settlement another. A further example may well be the recent abrupt decision to withdraw the independent legal aid scheme from parties in settlement negotiations. The implications of that decision for the longevity and durability of settlements does not appear to have been thought through.
This book should have a wide readership and is recommended to anyone working on settlements or interested to know about them in detail. For historians, it places the current era of settlements in context. For academics and others seeking a serious study of the settlement process it is an important text. Negotiators, lawyers and policy makers will find it practical and informative about the issues that commonly arise in trying to reach settlements.