By Carwyn Jones *
Opinion - If the Crown is going to get its Treaty negotiations right, it needs to seriously engage with tikanga Māori and Māori legal traditions in the settlement process.
Treaty of Waitangi Photo: RNZ / Aaron Smale
Yesterday, the Waitangi Tribunal released the Whakatōhea Mandate Inquiry Report. In this report, the Tribunal determined that the Crown had indeed breached Treaty principles in its settlement negotiations with Whakatōhea, in particular, finding that the Crown's recognition of mandate "was not fair, reasonable, and made in good faith".
This is not the first time that Crown policy and practice relating to the recognition of a mandate to negotiate the settlement of historical Treaty claims has been challenged.
Mandating is an important part of the Treaty settlement process. It is vital that those who say they have the authority to negotiate the settlement of the historical claims of their community do, in fact, hold that mandate from their people. The Crown acknowledges this and has established processes for determining whether or not to recognise the mandate of a group seeking to enter into negotiations. So, why is the Crown still doing things here which are not fair, reasonable, or undertaken in good faith?
This particular issue relating to mandate stems from a broader flaw in the Crown's approach to Treaty settlements, that is, a failure to properly engage with Māori legal traditions in this process. In the Whakatōhea Mandate Inquiry Report, the Tribunal identified one of the problems with the Crown's approach was that there was insufficient weight placed upon the objections of a number of smaller hapū. Despite the fact that there were well-known and long-standing differences of opinion about settlement negotiations within Whakatōhea, and that the hapū of Whakatōhea had explicitly stated that the process for settling their claims needed to be driven by hapū, the Crown chose to look at the support of individual members rather than the support (or otherwise) of the various hapū.
The Crown could hardly have been unaware of the problems with this approach. The Tribunal raised similar criticisms of Crown process in the Ngāpuhi Mandate Inquiry Report in 2015. The Tribunal has made recommendations to the Crown, across a number of reports, about how to address flaws in the mandating process. For example, it has recommended that the Crown take a more active role in monitoring the mandating strategy; that it must be impartial in its dealings with different Māori groups and preserve not damage relationships between them; and that it ought to ascertain the support, not only of individuals, but of hapū.
Although, in each of the various mandate reports, the Tribunal has focused on addressing the particular flaws in each case, there is an overarching issue: a failure to prioritise Māori legal traditions. If the Crown had given greater attention to the tikanga of, for example, Whakatōhea and Ngāpuhi, it might well have behaved differently in both these negotiations. The ongoing relationships between different communities within the settling groups would certainly have been given greater priority. Instead, often political or administrative expedience has driven Crown actions. In relation to Whakatōhea, the Tribunal took the view that "the Crown has focused too much on the goal of achieving a speedy settlement, including meeting arbitrary deadlines for key milestones, to the detriment of Whakatōhea."
In the Ngāpuhi Mandate Inquiry Report, the Tribunal offered the following concluding observations:
"...it is crucial to the ultimate success of the settlement process that the negotiating structure is robust and has the full support of those whom it claims to represent, and whose grievances it intends to put to rest. There is a real danger, if the wairua is not there, if the focus is more on economic stimulus than on healing the injuries of the past, if tikanga is pushed to one side to remove what are perceived as impediments to progress, that the opposite will happen: that further grievances will be caused."
Tikanga and Māori legal traditions must be central to the settlement process. If the Crown recognises this then it can avoid creating further grievances through issues such as the problematic mandate process identified in the Whakatōhea negotiations. That will provide the foundation for durable settlements that contribute to the goals of reconciliation and make good on the promise of the Treaty partnership.
* Dr Carwyn Jones, of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent, is a Treaty of Waitangi and indigenous legal traditions researcher and lecturer at Victoria University of Wellington. He maintains a blog, Ahi-kā-roa, is co-editor of the Māori Law Review, author of New Treaty, New Tradition - Reconciling New Zealand and Māori Law, and has previously worked at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements.