July 2016 Māori Law Review
Kirsten Hagan, Senior Analyst at the New Zealand Treasury and Māori Law Review contributor, interviews the Treasury's Ivan Kwok about the relationship between the Crown and Māori.
Ivan Kwok joined The Treasury in 1975 and spent 15 years as the Treasury Solicitor. Subsequent to that role, Ivan has been one of The Treasury’s most senior and respected Principal Advisors specialising in public finance, commercial transactions, and the Crown-Māori relationship. Latterly, he has played pivotal roles in the more innovative and ground breaking approaches to settlements, including the CNI Forestry Settlement of 2008 and the Waikato River settlements, and is a key proponent of pushing the Crown to develop a clear working vision of the relationship in 2050 and outwards.
He Tangata, He Tangata, He Tangata
The relationship is just that – a relationship between people. I’ve had differing roles in many of the most significant cases since the 1980s, including the SOE litigation in both the 1980s and its most recent guise in the Asset sales litigation. Looking back over those experiences and the outcomes I think the courts will always have their place as a referee of the Treaty relationship but at the end of the day it is the Treaty partners who need to sit at the table and work out how they will work together. The partners are still learning that litigation has its place but it’s better to sit at the table and talk.
That was absolutely the case in the CNI Forestry Settlement in 2008 where the Crown and the CNI Iwi Collective had to sit down and work out the best way forward. In that case, I think the Crown and iwi came up with a great way through a very difficult and politically charged situation – and it was very iwi-driven, the Crown had some clear bottom lines but otherwise it was very open to the how.
Listening and understanding
Genuinely listening and understanding each other is critically important. That’s where the Treaty partners can each make the most gains in helping each other help themselves. It’s not rocket science but it’s something that parts of the Crown can be slow to appreciate as to why it is so important to do it and do it well. I don’t just mean the importance of the Crown consulting its Treaty partner as it’s required to do. Listening and understanding each other should be the way that the Crown works regionally and nationally over and above any legal obligations. Engaging early gives the Crown the opportunity to hear and consider different ways of doing things which can lead to better outcomes. Listening and understanding should be seen not only as an investment in the Crown-Māori relationship but also an investment in better outcomes for New Zealand.
The challenge of people over process
We are now in a period in our history where the Crown-Māori relationship is generally very positive. But in my experience this status is fragile. Only very recently, in the early parts of this past decade, the relationship was very strained and process-bound. Over time, the Crown had become risk-averse and was less and less open to different ways of doing things even though at times it was resoundingly obvious the processes were no longer fit for purpose or were producing unintended outcomes. At times it would take a catalyst, sometimes a crisis, for the Crown to try a different approach.
The Crown is now more open to working differently but understandably some people see the Crown as slow to change and that change is incremental rather than fundamental. While true in some instances, there are areas within the Crown where fundamental change is happening and which could lead to more widespread change. Targeting those areas where that positive change is happening and helping it grow and spread within the vast machine that is the Crown is a huge challenge for public servants, Ministers, and iwi. But there is a real drive right now to find those new ways of working and this needs to be encouraged.
The Crown will always have a natural tendency to revert to process to manage risk. Even as recently as 2013, the Deputy Controller and Auditor-General said that Government process should not stand in the way of innovation in new and creative ways of collaboration. The challenge for the Crown, and for those people who want the Crown to work differently with them, is to find those ways through together.