Mai Chen

Public and employment law specialist Mai Chen on current events

Mai Chen: Quiet Treaty settlements need bigger spotlight

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The Tumanako track in Hawkes Bay. Photo / APN
The Tumanako track in Hawkes Bay. Photo / APN

There are some "big ticket" Maori issues hogging the limelight - the Crown's Treaty obligations in the part-privatisation of state assets, the claim lodged with the Waitangi Tribunal concerning ownership of freshwater and geothermal resources, and the Independent Maori Statutory Board seeking greater funding for Maori from the Auckland Council.

But the Treaty relationship is also evolving in constitutionally significant ways through much lower-profile settlements. Pakeha as well as Maori need to understand what these agreements entail as the redress and the obligations they create, including the co-governance of resources, affect us all.

I advise Maori on Treaty settlements, but I also advise plenty of non-Maori on the impact of Treaty settlements on their businesses and daily lives. These settlements are redress for historic grievances, but Maori can continue to bring claims for contemporary breaches of the Treaty either to the Waitangi Tribunal or to the Crown through direct negotiation, which may result in fresh settlements.

Today in Parliament, the Government proposes to make the first use of new Standing Orders permitting extended sitting hours to progress six bills giving effect to Treaty settlements reached between the Crown and various iwi over the past two years.

These are the Ngai Tamanuhiri Claims Settlement Bill; Ngati Makino Claims Settlement Bill; Ngati Manawa and Ngati Whare Claims Settlement Bill; Nga Wai o Maniapoto (Waipa River) Bill; Ngati Pahauwera Treaty Claims Settlement Bill; and Ngati Porou Claims Settlement Bill.

These bills record the Crown's acknowledgement that it breached the Treaty and contain its apology to iwi.

In total, more than $30 million worth of land will be transferred from the Crown to Maori as financial and commercial redress. Maori will also have rights of first refusal over other Crown land.

In addition, more land with cultural, spiritual, historical or traditional significance for Maori will be transferred as cultural redress.

These transfers are often symbolic rather than substantive. For example, Te Heru o Tureia in Hawke's Bay will be vested in Ngati Pahauwera and then gifted to the people of New Zealand as a historic reserve.

The settlements will also create relationships between Maori and the Crown in respect of particular areas:

* Provision for the issue of enforceable protocols governing how the Crown will deal with iwi in respect of conservation, fisheries, Crown minerals and taonga tuturu (Maori-made objects more than 50 years old and protected from export by the Protected Objects Act 1975).

* Statutory acknowledgement by the Crown of particular cultural, spiritual, historical and traditional associations between Maori and areas of land, which must be taken into account in resource-consent matters.

* Provision for the establishment of a local leadership body as a joint committee between Ngai Tamanuhiri and the Gisborne District Council.

* Statutory recognition of whenua rahui (a traditional restriction on access to or use of the land) over parts of the Lake Rotoma scenic reserve in relation to Ngai Makino near Rotorua.

These relationships matter to Pakeha and Maori, because they will constrain Crown behaviour and are also likely to place limits on what non-iwi can do with land subject to a Treaty settlement.

One area of particular interest, given the recent New Zealand Maori Council Waitangi Tribunal claim concerning the ownership of freshwater and geothermal resources, is the co-management provisions for dealing with waterways. These provisions follow a precedent established by the 2010 Waikato-Tainui settlement for the co-management of the Waikato River and include:

* The establishment of a River Management Framework for the Rangitaiki River.

* A requirement that iwi representatives be appointed to any special tribunal considering changes to water conservation orders on the Mohaka River.

* The establishment of co-governance and co-management arrangements between the Crown and Maori in respect of the Waipa River.

There is nothing underhanded about the relatively low profile of the Treaty settlement process. It could be argued that New Zealanders' acceptance that such settlements will continue is a mark of maturity.

These settlements are, after all, redress for breaches of the Treaty by the Crown. Treaty settlement bills are an important part of New Zealand's constitutional evolution, and deserve our attention just as much as big ruptures between Maori and the Crown.

As the Waitangi Tribunal said in the Motonui-Waitara claim, the Treaty was "not intended to merely fossilise a status quo, but to provide a direction for future growth and development. The broad and general nature of its words indicated that it was not intended as a finite contract but as the foundation for a developing social contract."

Mai Chen is a partner in Chen Palmer, adjunct professor of law at the University of Auckland Business School, and author of A Public Law Toolbox, to be published next month.

- NZ Herald

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