Martin Fisher: Now a significant time in history of Treaty settlements

Treaty of Waitangi Negotiations Minister Andrew Little. Photo / Mark Mitchell

At the end of August, Waitangi Tribunal hearings will open in Gisborne for the latest Mangatu remedies claims, in which the tribunal is under immense pressure from the courts to issue binding recommendations. But how did we get here? And what does this mean for our relatively politically stable Treaty settlement process?

Just under 30 years ago, the Treaty of Waitangi Policy Unit (ToWPU) was established within the Department of Justice to co-ordinate and control the Crown's position on the resolution of Treaty claims. Over the three decades the Crown has negotiated dozens of agreements with Māori claimants around the country, it has been a distinctly political process.

Nonetheless, at the same time that ToWPU was set up, Parliament also provided the Waitangi Tribunal with legal binding powers to provide remedies to claimants. The tribunal has generally neglected to use those powers as a political process was seen as being more acceptable to the public. The tribunal sought to focus on its key task — reporting on the validity of claims — and leaving the settlement negotiations to the Crown.

Despite issuing one report on remedies in 1998, the tribunal has been able to suppress its use of binding powers — until now. Ever since a seminal Supreme Court decision in 2011 (Haronga v. Waitangi Tribunal and others) the courts have persistently pushed the tribunal to issue binding recommendations for remedies.

Before the first precedent-setting settlements were negotiated over sea fisheries, the Waikato-Tainui raupatu (confiscation), and the Ngāi Tahu claim in the 1990s, it was unclear how Treaty breaches would be resolved. Even in the late 1980s the Crown did not seem very keen to engage in a process.

Court action over claims to State-owned enterprise land, fisheries, forests and coal led by a number of different Māori entities gradually pushed the Crown to negotiate. Some of the results of this successful litigation were the Treaty of Waitangi (State Enterprises) Act 1988 and the Crown Forests Assets Act 1989 which provided binding powers to the tribunal to force the Crown to return land and financial compensation to those with valid claims.

In the 1990s, Ngāi Tahu did not have much success in its application for binding remedies during a breakdown in their negotiations, while the much smaller Ngāti Turangitukua did.

After their applications not many iwi tried to apply for binding orders but the pattern picked up in 2006. In 2009, the chairman of the Mangatu Incorporation on the East Coast of the North Island applied for binding remedies to recommend the return of part of the Mangatu State Forest to its owners.

After the tribunal, the High Court and the Court of Appeal all rejected their application, the Supreme Court majority (with one dissent) backed the Mangatu Incorporation and forced the tribunal to hear their claim for binding remedies.

The court only forced the tribunal to hear their claim, not necessarily to issue the binding recommendations. A number of other Māori entities in the region joined the hearing as applicants, but when the tribunal issued its report in early 2014 it refused to issue any binding recommendations claiming that it would do more harm to the others if any one group was favoured.

Once again, the Mangatu Incorporation took the tribunal to court and had its case upheld by the High Court. The Attorney-General then appealed that decision to the Court of Appeal which found in Mangatu's favour again.

Instead of continuing on to the Supreme Court, the Attorney-General accepted the decision and another remedies hearing is on the cards, but this time the tribunal is under enormous pressure to not only hear the claim but to issue binding recommendations. (A similar process occurred for Ngāti Kahu based in the Far North of the North Island who will have their own second remedies hearing sometime in the near future.)

So what has caused the judiciary to take this turn? Is it the influence of Chief Justice Sian Elias who was the lead counsel for the New Zealand Māori Council in the seminal 1987 case that eventually led to the creation of binding powers? Has part of the judiciary given up on separating the legal side of things from the politics of Treaty settlements? How will Ngāi Tahu and other Māori groups who applied for binding orders react? Can alternative remedies such as binding powers and the settlement process led by the Crown exist together?

It is unclear exactly what the repercussions of these decisions will be for the Treaty settlement process. Only time will tell but it is clear we are in the middle of a very significant moment in the history of the modern Treaty settlement process.

• Dr Martin Fisher, University of Canterbury lecturer, is an expert in colonial and modern histories of Crown-Māori interactions, the Treaty of Waitangi claims process and indigenous sovereignty in a global context.