He WhakaaroTime waits for no one

No straightforward answer to Waitangi Tribunal process
Nā Tom Bennion

More payments may be made as the relativity mechanisms allow a further claim to be made in five years’ time.
Since the Waitangi Tribunal began operating in 1975, around 34 Treaty settlements have been completed, several more are in the pipeline and a recent book Treaty of Waitangi Settlements by Nicola R Wheen and Janine Hayward and published by Bridget Williams Books says that there may be as many as 60 more to come. A question often asked is, when will this current round of settlements under the Waitangi Tribunal process end and what will the final cost be? The answer is not straightforward, as two recent events have shown.

The first event was the agreement of the Crown to pay at least an extra $138.5 million to Waikato-Tainui and Ngāi Tahu under the relativity mechanisms in their settlements. These mechanisms were included in the early settlements (1995 and 1998 respectively) on the basis that these ‘first out of the blocks’ groups should not be disadvantaged if it subsequently turned out that later settlements were on more generous terms. The mechanism in each case provides that if the total of all Treaty settlements exceeded one billion dollars, Waikato-Tainui and Ngāi Tahu would get a 17 and 16.1 percent top-up respectively. The billion dollar cap was exceeded by mid-2012. The amount provided by the Crown will be the subject of litigation for the simple reason that the relativity mechanisms are complex (the Ngāi Tahu deed includes a mathematical formula covering several pages) and the differences in calculation are likely to run to millions of dollars.

More payments may be made as the relativity mechanisms allow a further claim to be made in five years’ time. There have been suggestions that the relativity mechanisms should be bought out by the government. However, with so many settlements yet to be made, and on-going uncertainty about the role of binding recommendations in settlements, there is little incentive for Waikato-Tainui and Ngāi Tahu to do so.

The second recent event was a report of the Waitangi Tribunal about the role of binding recommendations in settlements, the Ngāti Kahu Remedies Report, released in February this year. The Ngāti Kahu tribe of the Far North lost over 70 percent of their ancestral lands prior to 1865. They sought binding recommendations over properties worth between $41-56 million and non-binding recommendations for around $200 million in straight financial compensation. The properties over which binding recommendations were sought included 114 former state-owned-enterprise properties and some Crown forest land.

Ngāti Kahu were relying on the Supreme Court ruling in the Mangatū case in 2011, that groups seeking binding recommendations from the tribunal can insist on a hearing by the tribunal about that request before any settlement legislation is finalised. Ngāti Kahu sought to use that ruling to argue that the tribunal was virtually bound, in the right circumstances, to make binding recommendations. Ngāti Kahu also took the opportunity to argue that the tribunal should ignore any Crown offers to settle in the region. That, they said, was the business of the Crown, but not the tribunal, which should focus only on what the group before it required as redress. The Crown had offered around $169 million to be split between five iwi in the region, including Ngāti Kahu.

In its report issued in February 2013, the tribunal rejected the Ngāti Kahu arguments. In terms of the properties over which binding recommendations were sought, it took into account that the Crown was offering some of these properties anyway, and the customary rights over others were disputed with neighbouring groups. In terms of the request for $200 million for historical losses, it similarly said that it could take into account the Crown offer and the fact that four other groups had accepted it. The overall offer to the five tribes compared favourably to the size of settlements with Waikato-Tainui and Ngāi Tahu and to upset that would lead to inequity between the tribes. The tribunal therefore refused to make any binding recommendations and determined that the Crown should provide cash redress to Ngāti Kahu of $45.518 million, along with the return of some properties that had high cultural values.

Given the continued pressure exerted by the relativity mechanisms, the government is probably heaving a sigh of relief. However, the Ngāti Kahu report will almost certainly not be the last word on the approach to settlement redress.