Lighting the way

It's hoped a new formula to treaty negotiations will prove to have a high success rate, despite the complexities of its 'ingredients'. Photo / Martin Sykes

In the wake of the Government's largest-ever Treaty settlement _ the $400 million-plus "Treelords" deal with central North Island iwi _ many are asking whether we've entered a new era in negotiations. Could the Treelords' recipe be used to settle other stalled settlements such as Tamaki Makaurau (Auckland)?

"I describe it as a once-in-a-generation settlement because of its size, complexity, multi-layered nature and the number of iwi involved," says Crown facilitator and former Te Puni Kokiri head Wira Gardiner.

But, says Gardiner, whose role it was to shuttle between claimants and the Crown, Treelords does represent a "seismic shift" in the way theGovernment went about reaching agreement.

"From a historical point of view, there's a book to be written _ there is certainly a significant case study to come out of this."

Three aspects of the deal, according to Gardiner, indicate the earth has indeed moved. The first is Michael Cullen's direct involvement. "You didn't need to be Einstein to realise you had under the one hat the Minister of Treaty Negotiations, the deputy Prime Minister and the Minister of Finance, giving pretty significant access into the decision-making of the Cabinet and Government." The second was the fast-tracking effect of shifting the management of the process into Treasury.

"It was another inspirational move. Treasury is used to dealing with big problems and big issues and had the ability to drive the number of agencies involved." Third was the Crown standing back and allowing iwi to take the lead. "The rangatira or the chiefs made the deals and one of the catch cries was, `no lawyers in the room'."

Gardiner also cites the extraordinary relationship that developed between Cullen and Tuwharetoa paramount chief, Te Ariki Tumu te Heuheu, who approached the Government late last year about the prospect of a collective agreement.

"In Maori terms it was simply rangatira to rangatira. There was very clear empathy and a very cohesive set of chemistry between the two leaders. When we got stuck, it just elevated up to a cup of tea between Dr Cullen and Te Arikinui and matters were resolved rather rapidly."

Gardiner credits the Waitangi Tribunal for forcing the Crown to reassess and reconsider a number of its direct negotiations. Throughout 2006 the tribunal had received complaints from hapu and iwi around the country who felt they were being unfairly treated in Office of Treaty Settlements (OTS) negotiations. "The tribunal played a role in making the Crown stop, pause and rethink _ it played a key role in disciplining the process."

The situation got so bad that in November 2006, tribunal acting chairwoman Judge Carrie Wainwright called a conference in Wellington. It was to decide whether there should be an urgent inquiry combining the complaints of more than 50 Maori groups concerning unfair and prejudicial treatment by the Crown. The turnout of lawyers at the event was, by all accounts, unprecedented in the tribunal's history. Issues raised included the Crown's policy of only negotiating with "large natural groupings", its method of mandating whom it negotiates with, how it decides on priority, and ensuring that Crown assets are available for redress and not sold off.

There was further bad news in 2007 when the tribunal delivered two reports on OTS deals concerning Te Arawa and Tamaki Makaurau iwi. The tribunal was scathing. Of the Tamaki Makaurau settlement with Ngati Whatua o Orakei which excluded other Auckland iwi, it said: "... the Crown's policy and practice has been unfair, both as to process and outcome ... this draft settlement really must be stopped in its tracks."

Of the Te Arawa deal which excluded half of the iwi in the Te Arawa area, the tribunal said: "OTS failed to act as an honest broker in the negotiation process ... OTS did not act honourably and with the utmost good faith ... Te Arawa is now in a state of turmoil as a result. Hapu are in contest with other hapu and the preservation of tribal relations has been affected."

In the face of such dysfunction among Te Arawa iwi, the miracle of Treelords is how it was possible to bring those who were disaffected together with those who already had a deal with the Government. Gardiner says it was done by first assuring that those with a deal on the table would not lose what they had already negotiated, and then by showing the benefits of the wider agreement. When it came to dividing up the cake, once again the chiefs made the decisions about percentages.

"The chiefs pretty much did the allocation model in the space of one day."

Office of Treaty Settlements director Paul James acknowledges changes to the Crown's approach in negotiating, as seen in Treelords, have come about in response to criticisms, including those made in the Waitangi Tribunals reports on the Tamaki Makaurau and Te Arawa settlements of 2007.

"We are moving to apply the lessons from the Central North Island negotiations to others throughout the country. We are experiencing some remarkable success with that."

But not everyone is happy with the new way. In an opinion piece in the Herald a week ago, Grant Hawke of Ngati Whatua o Orakei said the iwi's realisation of its agreement in principle had been slowed by "other Maori groups who consider they have overlapping interests in the Auckland area".

James says the Crown is following the key recommendation of the Waitangi tribunal in its Tamaki report _ to stop negotiations with Ngati Whatua o Orakei until "neighbouring groups" were ready to negotiate their own agreements in principle. Inevitably, he says, there will be delays, but "resolving overlapping interests is central to successful Treaty negotiations".

Hawke was unable to speak to the Herald, but his opinion piece implied other Auckland iwi were doing nothing, saying it was important for overlapping interests "to get their process going sooner rather than later".

Which is exactly what five other iwi _ Marutuahu (Ngati Paoa, Ngati Maru, Ngati Whanaunga and Ngati Tamatera), Ngai Tai ki Tamaki, Ngati Te Ata, Te Kawerau a Maki and Te Taou _ have been doing. The iwi referred to by the tribunal as the "other tangata whenua groups" met then-Treaty minister Mark Burton in September 2007. James confirms several meetings "at an official level" for the last year and that the Crown "has been working with some neighbouring iwi to ready them for direct negotiations with the Crown".

Although a media ban is in place about the nature of the negotiations, the Herald understands the groups have subsequently formed the Tamaki Makaurau Collective on the understanding that this is how the Crown now operates in negotiations. The group has also opened the door to other tribal interests in Auckland and has been joined by a sixth iwi, Ngati Tamaoho.

The stumbling block appears to be about Waikato-Tainui _ currently finalising the Waikato River deal _ wanting more representation of their Auckland claims.

In July 2006 when the Herald first looked at the issue (The battle for Auckland) Tainui chairman Tuku Morgan described the Crown's agreement in principle with Ngati Whatua o Orakei as "a complete denial of our own mana over tracts of Auckland". He was particularly concerned about Ngati Whatua being handed governance of Maungakiekie (One Tree Hill) and other wahi tapu mountains on the isthmus, over which Tainui and other iwi have historical claims.

James says the key to progress with the neighbouring iwi is to resolve how they will group together for negotiations and what issues those negotiations will cover. Once this is done, the groups can then move towards appointing mandated representatives for those groups.

Lawyer Paul Majurey of Marutuahu agrees mandating hui to demonstrate the level of iwi support is the next step. "It allows the people to have their say, in the presence of Crown observers, and avoids putting the Crown in a `pick and choose' approach over any issues as to representation."

Whether a Treelords-like process _ rangatira to rangatira _ would unlock the Auckland stalemate remains to be seen. At stake is valuable Auckland property including $80 million of naval housing land in Devonport, promised to Ngati Whatua o Orakei, which would pay for the properties by foregoing rents for 35 years.

Also on the table is first right of refusal to a further $90 million of North Shore naval land, plus first right of refusal of all Crown properties put up for sale in the Auckland isthmus.

That's a lot of land for one hapu which already has four settlements with the Crown. OTS has always maintained there are plenty of other assets in Auckland to settle neighbouring iwi claims.

If that's true, then the hotly contested Tamaki Makaurau _ Tamaki of 100 lovers _ may become the next once-in-a-generation settlement.