KEY POINTS:
Maori have two options if they want to settle historical grievances. They can go through the often lengthy yet healing Waitangi Tribunal process, or negotiate directly with the Crown through the Office of Treaty Settlements (OTS).
In 2003 Ngati Whatua o Orakei opted to enter into direct negotiations
with the OTS for its claim to large parts of Tamaki Makaurau (Auckland). The Crown had dealt with the tribe before, knew they fulfilled the requirements, and gave them the nod ahead of the other claimant groups.
When a draft settlement agreement was reached between the OTS and Ngati Whatua o Orakei last year the other groups sought an urgent hearing from the Waitangi Tribunal.
The report published this week by the tribunal outlines serious problems over the way the OTS has treated the other claimant groups, not just in Tamaki Makarau but in previous settlements.
The OTS was set up by the Crown in the 1990s so it could deal directly with tribes and arrive at settlements faster.
The Waitangi Tribunal was set up in 1975 under the Treaty of Waitangi Act to ensure the principles of the treaty were upheld.
The tribunal is not a court, although a judge sits on each hearing. And it has few teeth. The OTS can enter directly into negotiations with what it calls "large natural groupings" and make settlements; the tribunal can hear stories of grievances and rule in a group's favour - but the Government does not have to do what it says.
However, the Government often implements at least some of the tribunal's recommendations. For example, Te Reo Maori became an official New Zealand language after a Waitangi Tribunal hearing.
What makes the Tamaki Makarau report so meaningful is the tribunal's criticism of the way the OTS sets up "winners and losers" in a region.
Finite resources and considerable pressure to achieve settlements with as many groups as possible, as quickly as possible, means the OTS is really in the business of "picking winners".
Given the constraints, picking winners might seem sensible. But winners tend to be groups - such as Ngati Whatua o Orakei - who have strong leaders and good infrastructure and who have had successes before.
"Arguably, though, those most in need of settlements - who may often be the very groups whose treaty rights were least respected in the process of colonisation - are those who do not fulfil a 'success' profile," the tribunal says. "On the 'picking winners' basis, those groups will be last in the queue."
Once the terms of negotiation were signed with Ngati Whatua o Orakei in 2003, the overlapping claimants were seen as an "inconvenience."
For three years the OTS met Ngati Whatua o Orakei fortnightly. In that time they sent only one letter to the other groups. The gist of that letter was, "Send us all your information - but don't call us, we'll call you."
But in treaty terms, says the tribunal, the Crown owes no more and no less to one group than any other.
"In tikanga terms, how could the other tangata whenua groups infer anything positive about their relationship with the Crown from the fact that the Crown came into Auckland on important business concerning the treaty and met and talked only with Ngati Whatua o Orakei?
"That was a wholesale denial of the others' mana from the start."
The Crown has a set of principles when it negotiates settlements. They include good faith, just redress, restoration of the relationship between the Crown and Maori, fairness between claims, consistency in the treatment of claimant groups and transparency of process and information.
The tribunal accuses the Crown of not acting reasonably, honourably, and in good faith. Repeatedly. This is the eighth urgent inquiry the tribunal has held relating to OTS settlements - it has received a further 21 applications.
Treaty settlements, says the tribunal, are supposed to improve relationships but this process damages whanaungatanga, a concept of relatedness which lies at the core of being Maori.
Often the opposing groups in claims are kin and always they are neighbours. Says the tribunal: "Damage to whanaungatanga is a great wrong: it affects Maori society at its very core."
The country cannot benefit from this approach, it says. Settlements will not be regarded as fair and just, and neither will they endure.
If well-intentioned conduct towards one group creates further grievances for others, the process has gone awry: "Instead of achieving reconciliation, in fact, we are heading the other way."
The OTS policy for settling claims breaches the very treaty which guaranteed Maori a different relationship with the Crown to that of non-Maori.
The tribunal is not saying in this report that Ngati Whatua o Orakei's claim is not well-founded. On the contrary. But it is saying that those other groups who may turn out to have equally valid claims have been pushed aside in the eagerness to settle Auckland.
The tribunal has gone to extraordinary lengths in the report to convince the OTS to change the way it operates.
Before agreeing to any discussions about negotiations with any group, officials must find out the connections between all the people, it says.
And it must do this face-to-face in hui, not just by sending letters.
