February 2018 Māori Law Review

Sir Edward Taihakurei Durie student essay competition 2017 – durability of the Treaty settlement process: Ngāti Whātua, tikanga, and overlapping claims

Sir Edward Taihakurei Durie student essay competition 2017

The durability of the Treaty settlement process: Ngāti Whātua, tikanga, and the overlapping claims policy

Cate Barnett

Foreword by Carwyn Jones, Māori Law Review co-editor

The Māori Law Review is very pleased to publish the winning entry from the 2017 Sir Edward Taihakurei Durie Student Essay Competition.

This is the sixth successive year that the Māori Law Review has sponsored the competition. The competition aims to encourage law students to engage with current Māori legal issues by calling for essays that address an important legal development from the previous year affecting Māori.

A number of very strong pieces of writing were received for the 2017 competition covering a wide range of topics. The judging panel, comprised of members of the Māori Law Review’s board of consulting editors, was impressed with the high standard of entries overall and the breadth of topics that were addressed speaks to the increasing prominence of Māori legal issues across many different areas of law.

The winning entry for 2017 is entitled The durability of the Treaty settlement process: Ngāti Whātua, tikanga, and the overlapping claims policy and was written by Cate Barnett.

Ms Barnett is a student at Victoria University of Wellington. She is in her final year of study towards a Bachelor of Laws with Honours and a Bachelor of Arts majoring in History and Political Science.

Ms Barnett’s essay provides an analysis of Ngāti Whātua Ōrākei Trust v Attorney-General and others [2017] NZHC 389 and critically examines the Crown’s policies relating to overlapping Treaty claims in that context. This essay raises urgent questions about the role of tikanga in law and policy relating to Treaty settlements and points to important considerations for post-settlement relationships between Māori communities and the Crown. The High Court decision Ms Barnett examines was upheld on appeal in a judgment released in December 2017 (see (2017) December Māori LR). The Supreme Court has subsequently granted leave for an appeal to that court meaning the issues in Ms Barnett's essay remain live.

Introduction

The Treaty of Waitangi settlement process is fundamentally important to New Zealand society.[1] Through the process, today’s Crown, the Government, acknowledges that the Treaty of Waitangi has not always been honoured, and that this requires recognition and appropriate response.[2] Because the resolution of Treaty grievances through the passing of settlement legislation is intended to be full and final,[3] the process must not only be sufficient, but wholly satisfactory for all parties. A particular area of tension is the Crown’s overlapping claims policy. Ngāti Whātua Ōrākei Trust v Attorney-General and others [2017] NZHC 389 (Ngāti Whātua) illustrates how the lack of tikanga in this policy is undermining the durability of settlements.[4] This is a significant legal development affecting Māori as we move into a ‘post-settlement’ space where the durability of settlements is assumed.

Discussion

Overlapping claims policy in the Treaty settlement process

The Government’s current policies on the Treaty settlement process can be found in Ka tika ā muri, ki tika ā mua: Healing the Past, Building a Future (the Red Book).[5] This paper focuses on the Crown’s approach to overlapping claims. As defined in the Red Book, an overlapping claim exists where two or more groups make claims over the same site or area of land.[6] It is not indended that the Crown determine claimant group boundaries, nor which claimant group has the predominant interest in an area.[7]  These are matters that can only be resolved by those groups themselves.[8]

The Crown’s policy recognises that where there are overlapping interests, the Crown may not be able to provide exclusive redress to claimants. Instead, it may recognise and accommodate these interests simultaneously by a form of non-exclusive redress, such as statutory acknowledgements, deeds of recognition, or rights of first refusals (RFRs).[9] While the Crown would prefer that disagreements over redress were settled by mutual agreement between claimant groups, where such agreement is not forthcoming the Crown may have to make a decision.[10] In reaching such a decision, the Crown must ensure it can provide a fair and appropriate settlement to both the negotiating party and other claimant groups in the area.[11] This is a fine balancing act. As the Waitangi Tribunal has noted:[12]

It is a hard job, and a demanding one, because the honour of the Crown is on the line, and the durability of these settlements… [b]ut it is one underpinned by the Treaty principles and the imperative of fairness. We should not hesitate to insist on high standards when lower ones can have such serious, and long-lasting, consequences.

Ngāti Whātua highlights that the Crown is failing to reach the right balance between these two considerations, and this is undermining the durability of Treaty settlements.

Ngāti Whātua and Tāmaki Makaurau

A full account of Ngāti Whātua o Ōrākei and their historical and cultural connections to Tāmaki Makaurau can be found in the Waitangi Tribunal’s 1987 report on the Ōrākei claim.[13] For the purposes of this paper, a summary will suffice. Ngāti Whātua were an established iwi located in Tāmaki Makaurau when European settlers began to arrive in Aotearoa.[14] A few months after the signing of the Treaty, Ngāti Whātua transferred to the Crown approximately 3500 acres of land upon which large parts of central Auckland have since been developed.[15] In the decades that followed, almost all of the land that Ngāti Whātua occupied was bought by the Crown,[16] conditionally gifted to the Crown,[17] or compulsorily taken from Ngāti Whātua by the Crown.[18]

In 1991 the Crown settled the claims of Ngāti Whātua relating to the loss of the lands specifically at Ōrākei,[19] and in 2003 the Crown entered negotiations with the Ngāti Whātua Ōrākei Māori Trust Board to settle their outstanding historical claims.[20] In 2006, these negotiations resulted in the parties entering into a (non-binding) Agreement in Principle (AIP).[21] This AIP would, among other things, grant Ngāti Whātua a RFR in respect of all Crown-owned properties within a defined area,[22] and vest in Ngāti Whātua the ownership of the ‘Cultural Redress Properties’: Maungakiekie; Maungawhau; Pukatapapa; and the Purewa Creek Stewardship area.[23] This gave rise to widespread discontent within other tangata whenua groups of Tāmaki Makaurau who claimed to have equally strong interests in the Auckland isthmus.[24] The Waitangi Tribunal urgently convened to hear these concerns. The subsequent Tribunal Report concluded that the Crown’s overlapping claims policy whereby the interests of only one claimant group were recognised was seriously flawed and contrary to tikanga Māori.[25]

On the Tribunal’s recommendation, the Crown put the proposed settlement with Ngāti Whātua on hold and began to negotiate with the newly defined Tāmaki Makaurau Collective, which included Ngāti Whātua, Ngāti Pāoa, and Marutūāhu Iwi. These negotiations led to the passage of Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, which acknowledged that each iwi had legitimate cultural and historical interests in Tāmaki Makaurau.[26] This Act provided for, among other things, two forms of redress. First, the Crown vested ownership in the Collective of the Crown-owned parts of eleven maunga, which included the three previously proposed to be transferred to the exclusive ownership of Ngāti Whātua in the AIP.[27] Second, the Crown granted the Collective a RFR in respect of all land held by core Crown agencies in Tāmaki Makaurau.[28] At the same time, Ngāti Whātua renegotiated its original AIP with the Crown. This led to a Supplementary Agreement, stipulating that the provisions of the Framework Agreement now provided redress relating to the maunga and the RFR.[29] This was given legal effect with the passage of settlement legislation.[30]

Also in 2011, Ngāti Pāoa entered into an Agreement in Principle Equivalent (AIPE) with the Crown.[31] In this AIPE, the iwi sought the right to purchase a number of properties, including two of which are located within the RFR area in the 2014 Collective Redress Act.[32] In 2013 Marutūāhu Iwi and the Crown signed the Record of Agreement, in which the Crown provided the Marutūāhu Iwi Collective the opportunity to purchase a number of properties, also within the RFR area in the 2014 Act.[33] Both these redress options were confirmed by the Minister for Treaty of Waitangi Negotiations in 2016 as preliminary decisions and no legislation has been passed to give effect to them.

It is these two later agreements which led Ngāti Whātua to seek declaratory relief in the High Court, to the effect that the Crown, through the Office of Treaty Settlements (OTS), adopted and applied an incorrect overlapping claims policy.[34] Ngāti Whātua contended that the Crown was required to exercise its decision-making powers in accordance with tikanga, including mana whenua and ahi kā, and its obligations arising under the Treaty of Waitangi, the Ngāti Whātua Ōrākei Claims Settlement Act 2012, and to inform itself regarding such matters through prior consultation with Ngāti Whātua.[35] Ngāti Pāoa and Marutūāhu Iwi successfully applied to strike out Ngāti Whātua’s application on the basis it is not a dispute that a court can adjudicate on (a non-justiciable dispute).[36] The Court of Appeal dismissed Ngāti Whātua's appeal from that decision. (See (2017) May Māori LR and (2017) December Māori LR.)

Justice Davison in the High Court held that pursuant to the principles of non-interference or comity, the Court will not review the process for developing a proposal which will be put to Parliament. In his view (at [122]):

…any declaration that would require the Crown, when it is formulating a Treaty settlement offer intended to be made subject to the enactment of authorising legislation, to proceed in the prescriptive manner sought… would clearly intrude into the realm of interference with parliamentary business, and into the very area into which the Court should not go.

As well as this, Davison J held that no decision had yet been made which affects the rights of Ngāti Whātua, as the challenged decisions and transfers of land will only take legal effect if legislation is passed (at [142]). As such, there was no proper entry point for the Court to rule on the dispute. It is also worth noting that if the decisions are given effect by legislation, and so do begin to affect the rights of Ngāti Whātua, the enactments themselves would provide a lawful basis for the transfer of the properties concerned.

The outcome in Ngāti Whātua is therefore based on the key finding that the courts do not have a place in the review of Treaty settlement processes that depend on legislation for effect. Both the High Court and the Court of Appeal maintained a hard-line refusal to engage with the settlement process, and have continued to invoke the principles of comity and non-justiciability in order to avoid being drawn into adjudicating on the dispute. It is therefore all the more important that the Crown get the overlapping claims policy right at the Executive level because, as the law stands currently, there can be no intervention from the judicial branch of government. Ngāti Whātua is the first of what is sure to be a long process of litigation due to dissatisfaction with the overlapping claims process.

Tikanga in the overlapping claims process

While tikanga Māori is difficult to conceptualise in a single definition,[37] it can be understood as the body of rules and values developed by Māori to govern themselves – the Māori way, or the right way, of doing things.[38] Leading scholars have identified whanaungatanga, mana, manaakitanga, tapu, and utu as core values of tikanga,[39] though its flexibility and adaptability allows it to vary from iwi to iwi, as different norms, traditions, and histories influence the tikanga of particular groups.[40]

An understanding of tikanga is key to understanding how overlapping claims arise and their inherent complexities. In accordance with whakapapa, Māori do not necessarily see themselves as belonging to a single iwi or hapū, but rather “as part of a rich ancestral tapestry that may weave between different iwi and hapū.”[41] In accordance with mana whenua, while multiple iwi and hapū can have rights over the same land, these rights are ordered and prioritised.[42] An iwi or hapū that maintains its connection to the land through occupation and continued exercise of rights and obligations in relation to that land can be said to hold mana whenua.[43] In the 21st century, it can be difficult to ascertain which iwi or hapū has mana over a certain area given the displacement of many Māori from their traditional rohe.[44] The Crown is then tasked with the difficult role of facilitating agreement between iwi claiming valid but different rights in the same areas. As tikanga underlies these disputes and perspectives, it is highly relevant to their resolution.[45] Tikanga must therefore be understood by the Crown and used in the creation and guidance of its overlapping claims policy if settlements are to be legitimate and durable. This is the conflict at the heart of Ngāti Whātua.

As mentioned, the Crown’s policy is that it has no role in determining which claimant group has the predominant interest in a general area.[46] Despite this, Crown evidence revealed that in negotiating the original 2006 AIP with Ngāti Whātua, OTS applied the idea of ‘predominance of interests’ when it offered certain maunga as exclusive cultural redress to Ngāti Whātua.[47] This was heavily criticised by the Tribunal’s subsequent report as seriously flawed and contrary to tikanga:[48]

The use of ‘predominance of interests’ as a basis for giving exclusive rights in cultural sites … is a Pākehā notion that has no place in Treaty settlements…. For an external agency like the Office of Treaty Settlements to determine that the interests of only one group should be recognised, and the others put to one side, runs counter to every aspect of tikanga we can think of.

As a result of these criticisms, when the Crown began negotiations with iwi who were to become the Tāmaki Makaurau Collective, the Crown adopted what it termed a ‘layers of interest’ approach.[49] Under this approach, the Crown does not recognise one iwi as having predominant interests, but instead “[w]here there are layers of interests in a site, all layers are valid.”[50] The Crown has explicitly stated that the redress currently on offer to Ngāti Pāoa and Marutūāhu Iwi is not guided by this concept, but is instead based on a separate consideration of the historical interests of both iwi in Tāmaki Makaurau.[51] In undertaking this separate consideration, the Crown has not engaged in an analysis of whether Ngāti Whātua has mana whenua in the Auckland isthmus, and what that means for other tangata whenua. Whether the Crown calls this a ‘layers of interest’ approach or not, the effect of the Crown recognising that all three groups have rights in Tāmaki Makaurau but not distinguishing where some rights begin and others end is essentially the same. It is this approach that Ngāti Whātua claims runs counter to tikanga.[52]

Ngāti Whātua, Ngāti Pāoa, and Marutūāhu Iwi are all in agreement that each group has historical and cultural interests in Tāmaki Makaurau. Ngāti Whātua has voluntarily entered into agreements which engage their rights with those of both Ngāti Pāoa and Marutūāhu Iwi.[53] At the same time, Ngāti Whātua claims that it continues to have mana whenua over the central Auckland isthmus, due to its continued occupation and rights and obligations in respect of the land.[54] Despite how the courts have interpreted this,[55] these claims are not necessarily inconsistent. Mana whenua does not equate to ownership, or exclusive control.[56] In accordance with tikanga, Ngāti Whātua submit that its mana whenua requires the iwi is consulted and involved in any decisions that would recognise others’ interests, particularly in relation to land within the iwi's recognised rohe.[57] The Iwi Working Party has confirmed this approach in a recent submissions for Ngāi Te Rangi’s application to the Waitangi Tribunal:[58]

The Crown should not offer redress to an iwi if it is within the area of primary interests of another iwi, without first getting the agreement of the iwi that hold mana whenua. To do so would effectively recognise both iwi as having the same level of mana, and in many cases, that is not right.

To clarify, Ngāti Whātua are not claiming that the Crown should be able to determine who has the ‘predominant interests’ in the land. They are claiming that, according to the historical interests in Tāmaki Makaurau, as a matter of tikanga, they in fact have mana whenua over the central Auckland isthmus, and it is the Crown’s role to recognise this.[59] To “ignore, or reinterpret customary rights (including questions of mana whenua)” is seen as a fundamental breach of tikanga.[60] Such a breach is counter to the Waitangi Tribunal’s recommendations in the Tāmaki Makaurau Report and the Crown’s own policy.[61] Undoubtedly, the Crown must be mindful of the relative disadvantage between the direct negotiating iwi and ‘overlapping’ claimants in their ability to research their claims and incentive to minimise the mana and interests of other iwi in the area.[62] However, for the Crown to say it has no interest in dealing with substantive issues of mana whenua in a specific area is seen as a “cop-out”, because it may not reflect the reality of the interests involved.[63] In the same way that the Crown has earlier been said to delegitimise the perspectives of overlapping iwi in Tāmaki Makaurau by adopting the perspective of Ngāti Whātua alone,[64] by refusing to now engage in the substantive question of mana whenua in the area, the Crown risks delegitimising the perspective of Ngāti Whātua.

At the end of the day, iwi must follow the Treaty settlement process set by the Crown. Ngāti Whatua highlights that if this process is to be durable, the overlapping claims policy needs to incorporate tikanga throughout. The Crown needs to design a policy by which the substantive issues of tikanga, brought to a head in Ngāti Whātua, can be worked out following clear and achievable guidelines. OTS cannot be left to recognise a predominant interest at one stage, layers of interests at another stage, and then categorise the interests as completely separate. The recent litigation emphasises that such an ad hoc approach to overlapping claims is undermining the durability of settlements, and risks causing further breaches to the Treaty.

Conclusion

Te Tiriti o Waitangi is New Zealand’s founding document. The Treaty settlement process is the Crown’s way of acknowledging that it has acted inconsistently with the spirit of the Treaty and breached its duties in relation to it. As such, this process needs to actively engage with the breaches by the Crown, and in providing remedy and redress ensure that it is not creating new Treaty breaches. Ngāti Whātua highlights that this is particularly difficult where there are overlapping claims involved, but if the Crown wants to commit to durable settlements it must rise to the challenge and get the process right. In order to achieve this, the Crown must put tikanga at the forefront of the process. As Carwyn Jones has put it:[65]

The Treaty settlement process needs to tell a different story… [it] cannot be written only by the Crown. It must instead be co-authored by the Treaty partners, iwi Māori and the Crown.

Notes

[1]   This paper is premised on the challengeable view that the Treaty settlement process is a legitimate system in which to recognize and respond to Crown breaches of the Treaty. See generally Moana Jackson “Justice and Political Power: Reasserting Māori Legal Processes” in Kayleen Hazlehurst (ed) Legal Pluralism and the Colonial Legacy (Avebury, Aldershot 1995) 243; and Ani Mikaere Colonising Myths, Māori Realities (Huia Publishers, Wellington, 2011) for the view that incorporating Māori legal and philosophical concepts into the state legal system, of which the Treaty settlement process is a part, simply continues the story of colonization. This paper takes a somewhat middle ground, working on the assumption that the current Treaty settlement process can be re-designed, by iwi and the Crown, to better reflect tikanga Māori.

[2]    Waitangi Tribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007) at 6. See generally the Attorney-General 2014 Briefing for the Incoming Minister, Ministry of Justice, www.ots.govt.nz.

[3]        Office of Treaty Settlements Ka tika ā muri, ka tika ā mua: Healing the past, building a future (March 2015) [Red Book] at 16.

[4]        Ngāti Whātua Ōrākei Trust v Attorney-General and others [2017] NZHC 389.

[5]        Red Book, above n 3.

[6]        At 53.

[7]        At 53.

[8]        At 53.

[9]         At 54.

[10]       At 54.

[11]        At 54.

[12]       Waitangi Tribunal, Ngāti Tuwharetoa ki Kawerau Settlement Cross-Claim Report (Wai 996, 2003) at 61.

[13]       Waitangi Tribunal Report of the Waitangi Tribunal on the Ōrākei Claim (Wai 9, 1987). This paper analyses specifically Ngāti Whātua o Ōrākei. Today, Te Rūnanga o Ngāti Whātua comprises and represents five takiwa, of which Ōrākei is one. All references to Ngāti Whātua in this paper are references to Ngāti Whātua o Ōrākei specifically, unless otherwise stated.

[14]       Ōrākei Claim Report, above n 13, at 17.

[15]       Ōrākei Claim Report, above n 13, at 22-23.

[16]       Ōrākei Claim Report, above n 13, at 25.

[17]       Ōrākei Claim Report, above n 13, at 3.

[18]       Ōrākei Claim Report, above n 13, at 226 and 233.

[19]       The Ōrākei Act 1991.

[20]      Ōrākei Claim Report, above n 13, at 25.

[21]       Agreement in Principle for the Settlement of the Historical Claims of Ngāti Whātua o Ōrākei (signed 9 June 2006).

[22]       At [38].

[23]       At [13].

[24]       Tāmaki Makaurau Report, above n 2, at 41.

[25]       At 1-3.

[26]       Preamble.

[27]       Part 2.

[28]      Part 4.

[29]      Supplementary Agreement in Principle for the Settlement of Historical Claims of Ngāti Whātua o Ōrākei (signed 12 February 2010) at [7]-[9] and [14].

[30]      Ngāti Whātua Ōrākei Claim Settlement Act 2012.

[31]      Agreement in Principle Equivalent (signed 22 July 2011).

[32]     Part 4.

[33]    Record of Agreement in Relation to Marutūāhu Iwi Collective Redress (signed 17 May 2013) at Part 5.

[34]     At [5].

[35]     At [9].

[36]     At [6].

[37]     Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at [66]-[75]. Also see Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (Victoria University Press, Wellington, 2016); at 38-42; and generally Hirini M. Mead, Tikanga Māori: Living by Māori Values (Huia Publishers, Wellington, 2003) for a more in-depth discussion on tikanga.

[38]     Law Commission, above n 37, at [66]-[75]; Carwyn Jones “Māori Dispute Resolution: Traditional Conceptual Regulators and Contemporary Processes” in Morgan Brigg and Roland Bleiker Mediating Across Difference: Oceanic and Asian Approaches to Conflict Resolution (University of Haiwai’I Press, Honolulu, 2011) 115 at 118.

[39]     Ani Mikaere, “See Human Rights Through Māori Eyes” (2007) 10 Yearbook of New Zealand Jurisprudence 54, at 53; Andrew Erueti “Māori Customary Law and Land Tenure: An Analysis” in Richard Boast and others Māori Land Law (2nd ed, LexisNexis, Wellington, 2004) 41 at 42; Natalie Coates “The Recognition of Tikanga Māori in the Common Law of New Zealand” (2015) 1 NZ L Rev 1 at 4; Jones, above n 37, at 38.

[40]    Erueti, above n 39, at 42.

[41]     Scott Fletcher “Cross-Claims and the Obligations of the Crown under The Treaty of Waitangi” 7 VUWLRP 86/2016, at 7.

[42]      Erueti, above n 39, at 42-43.

[43]      Jones, above n 37, at 69.

[44]     Both voluntarily and under duress as a result of colonisation. See Fletcher, above n 41, at 8.

[45]     Fletcher, above n 41, at 16.

[46]     Red Book, above n 3, at 57.

[47]     Tāmaki Makaurau Report, above n 2, at 65.

[48]    Tāmaki Makaurau Report, above n 2, at 96-97.

[49]    Letter from Christopher Finlayson (Minister for Treaty of Waitangi Negotiations) to Ngāti Whātua representatives regarding the Treaty claim by the Marutūāhu Collective (22 April 2016) as cited in Ngāti Whātua, above n 4, at [69].

[50]     Tāmaki Makaurau Report, above n 2, at 97.

[51]     Letters from Christopher Finlayson (Minister for Treaty of Waitangi Negotiations) to Ngāti Whātua representatives regarding the provision of redress for other iwi within Ngāti Whātua’s core area of interest (17 August 2015 and 22 April 2016) as cited in Ngāti Whātua, above n 4, at [63] and [69].

[52]     Ngāti Whātua, above n 4, at [5].

[53]     Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014.

[54]     Ngāti Whātua, above n 4, at [5].

[55]     Ngāti Whātua, above n 4, at [138].

[56]    Erueti, above n 39, at 42.

[57]     Ngāti Whātua, above n 4, at [5].

[58]    Waitangi Tribunal Ngāi Te Rangi Application for an Urgent Inquiry into the Crown’s Settlement Negotiations Policy and Practice Concerning Hauraki Redress (Wai 2616, 2017) at [91].

[59]    Ngāti Whātua, above n 4, at [5].

[60]    Ngāti Te Rangi’s Urgent Application, above n 58, at [91].

[61]    Affidavit of Christopher Finlayson (Minister for Treaty of Waitangi Negotiations) to the High Court, as cited in Ngāti Whātua, above n 4, at [76]; Red Book, above n 3, at 53.

[62]   Fletcher, above n 41, at 31.

[63]   Interview with Ngarimu Blair, Ngāti Whātua Ōrākei spokesperson (Laura Tupou, Radio New Zealand, 11 January 2017); Ngāi Te Rangi’s Urgent Application, above n 58, at [86]-[88].

[64]   Tāmaki Makaurau Report, above n 2, at 92 and 95.

[65]   Jones, above n 37, at 152.