(From the Office of Treaty Settlements Website)
The negotiation process generally follows these main steps:
Mandate
Negotiations
Ratification
Governance Entity
Legislation
Mandate
The aim of this part of the process is for the claimant group to provide a Deed of Mandate to the Crown.
This Deed of Mandate:
There are a number of ways in which those who negotiate on behalf of the claimant group can be selected. Each claimant group may have a different approach. The Crown's key concern is that the process by which this occurs is fair and open to all members of the claimant community.
Selection of representatives to negotiate a settlement package with the Crown does not mean those representatives will also be in charge of any settlement assets. A mandate is valid only for the negotiation phase of the settlement process. All members of a claimant group will have the opportunity to approve the settlement package and, subsequently, decide on how the settlement assets are to be administered and governed.
Deeds of Mandate are assessed by the Office of Treaty Settlements and Te Puni Kokiri (the Ministry of Maori Development). If a Deed is found to be properly inclusive and representative by these two agencies, it is then publicised in local and national newspapers to ensure that all members of the claimant community have a chance to comment, as well as neighbouring claimant groups. The Minister in Charge of Treaty of Waitangi and Minister of Maori Affairs make the final decision on behalf of the Crown, and a mandate may be recognised subject to certain conditions.
The Crown prefers to negotiate with large natural groups. A large natural group is usually an iwi (tribe) or a cluster of hapu (sub-tribes) with a significant population, and a large distinctive claim area.
Negotiating with larger rather than smaller groups allows the Crown to offer a wider range of redress. Many forms of redress work best when they apply to a large natural grouping of claims interests that is limited by customary association. Including a wide variety of redress within a settlement package also allows a wide range of needs to be met.
Negotiations
As an important part of the negotiations phase, the Crown and the mandated representatives first discuss the various interests they each wish to protect and promote in a settlement package. The parties then try to reach agreement on particular proposals for settling the claim. Usually the Crown and the mandated representatives exchange letters outlining an Agreement in Principle or, more formally, sign Heads of Agreement, to signal their agreement on the monetary value of the settlement (what is known as the “settlement quantum”), and the scope and nature of other redress to be provided.
The parties then need to work through the detail on such matters as:
When all the details of the redress have been agreed, these are set out in a draft Deed of Settlement for approval by Cabinet. The draft Deed of Settlement is then initialled by both the Crown and the mandated representatives for ratification by the claimant group.
Ratification
The Deed of Settlement initialled between the Crown and the mandated representatives must be clearly approved by the wider claimant group before it becomes binding. This approval process is called ratification.
The key part of the ratification process is a postal ballot in which all members of the claimant group over the age of 18 are eligible to vote.
In addition, members of the claimant group must have a chance to review and ratify the proposed governance entity for the settlement. The term “governance entity” simply refers to the legal entity that will be used to hold and manage settlement assets, and exercise the forms of cultural redress provided in the settlement package. Ratification of the governance entity must occur before the Crown can introduce settlement legislation and transfer the redress provided in the settlement to the claimant group. The ratification process for a governance entity is similar to that used to ratify a Deed of Settlement. It may be carried out at the same time as the members of a claimant group consider whether or not to ratify a Deed of Settlement, or it can occur as a separate process.
Governance Entity
The term “governance entity” simply refers to the legal entity that will be used to hold and manage settlement assets and exercise the forms of cultural redress provided in the settlement package. The constitution of the governance entity is a matter for the claimant group to decide. The type of structure may depend on, among other things, the size of the claimant group and the assets and cultural redress they will be administering. It will also depend on the claimant group’s aims following settlement.
Claimant groups are urged to begin considering their Governance Entity options at an early stage in the settlement process so that they are able to have a structure approved by their members and established by the time the legislation implementing their settlement is introduced into Parliament. This will avoid any delay in transferring the settlement assets to the claimant group and allow claimant groups to begin to exercise the forms of cultural redress as quickly as possible.
Legislation
Settlement legislation is usually needed to implement a settlement. For example, legislation is needed to ensure the finality of the settlement by removing the ability of the courts and Waitangi Tribunal to re-open the historical claims or the Deed of Settlement. It may also be needed to vest land in the governance entity on behalf of the claimant group if normal administrative land transfer processes would not be appropriate.
Once passed, the legislation allows the settlement assets to be transferred to the governance entity on behalf of the claimant group and the group can begin to make use of the cultural redress provided in the settlement.
Settlement legislation is usually needed to implement a settlement. For example, legislation is needed to ensure the finality of the settlement by removing the ability of the courts and Waitangi Tribunal to re-open the historical claims or the Deed of Settlement. It may also be needed to vest land in the governance entity on behalf of the claimant group if normal administrative land transfer processes would not be appropriate.
Once passed, the legislation allows the settlement assets to be transferred to the governance entity on behalf of the claimant group and the group can begin to make use of the cultural redress provided in the settlement.
