It was good to see the Minister for Treaty of Waitangi Negotiations, Chris Finlayson, today explaining in the Herald some of the key aspects of Treaty settlements and setting out the Government’s broad objectives in this area. It is very helpful to have information about the Treaty settlement process made accessible. It is also good to see the Minister emphasizing, in positive and optimistic terms, the importance of concluding Treaty settlements and redressing historical claims.
While I am pleased to see the Minister communicating this information to a wide audience, some of his underlying assumptions seem to me to be fundamentally problematic for his stated objective of achieving just and durable Treaty settlements. In a previous post, I noted that the lack of attention to the justice of settlement agreements is ultimately detrimental to the durability of those settlements. However, the conceptualization of the Treaty settlement process that the Minister has articulated appears to place little value on achieving justice. Rather, the focus is on deal-making and reaching politically expedient agreements. This might have little effect on the fairness and, consequently, the durability of settlements so long as the negotiation of settlement agreements took place between parties with roughly equal power and resources or if there existed procedural safeguards to level the playing field. This is not the case. The Crown Forestry Rental Trust publication, Māori Experiences of the Direct Negotiation Process, shows that one of the concerns that has consistently been expressed by Māori groups is that the Treaty settlement is process is not really a ‘negotiation’ in any accurate sense of the word.
As an example, the Minister says that:
Public access to natural resources is, and always will be, a bottom line for this Government. . . . Iwi are keen to get on with the business, the Crown is keen, and everyone agrees that public access can never be compromised.
I don’t know whether everyone really does agree that public access can never be compromised. I certainly wouldn’t be very impressed if, contrary to an agreement we had struck, the government confiscated my land, profited from that confiscation for over 100 years, and then told me that I could have 2% of that land back, but that members of the public would also continue to use my land. If public access is a bottom line for the Crown, what choice do iwi who want to settle their claims have but to agree? I understand that achieving resolutions which are just, not only to Māori, but also to other New Zealanders, will, in some situations require measures such as a guarantee of public access. But just and durable settlements will not be achieved by the Crown making demands within a process where iwi who wish to settle their claims have no choice but to concede. Quite simply, the primary concern in relation to Treaty settlements must be justice in both the process and the substantive outcome with regard to the particular circumstances of the historical injustice that the settlement is to address.