Maa-nulth Final Agreement and the Ngāti Porou Deed of Settlement

At the beginning of this month the Maa-nulth Final Agreement, negotiated as part of the British Columbia Treaty Process, came into effect.  Looking at the contents of this agreement, I thought it might be helpful to consider how the agreement compares with settlements reached under the Treaty of Waitangi Settlement Process.  I’ve used the Ngāti Porou Deed of Settlement, signed at the end of last year,  as a relatively recent point of comparison.  Though there are many factors which distinguish the situation of the Maa-nulth nations from that of the hapu of Ngāti Porou, even a general comparison reinforces a number of concerns I have about the durability of Treaty of Waitangi settlements.

The five Maa-nulth First Nations are Ucluelet First Nation, Huu-ay-aht First Nations, Toquaht Nation, Ka:’yu:’k’t’h’/Che:k’tles7et’h’ First Nations and Uchucklesaht Tribe.  The traditional territories of these nations are situated along the west coast of Vancouver Island and altogether this agreement will cover about 2,000 people.  I have not been able to ascertain the precise land area that would have been encompassed by the traditional territories of these nations, but my rough calculations based on the maps provided by the nations in the negotiating process suggest that their traditional lands covered approximately 400,000 hectares.

Ngāti Porou are also recognised as having a traditional territory of approximately 400,000 hectares, though in most other respects the two groups are very different.  The 2006 census figures show that over 70,000 people affiliate to Ngāti Porou – a population 35 times larger than the five Maa-nulth Nations combined. 

Both the Maa-nulth Final Agreement and the Ngāti Porou Deed of Settlement are detailed documents which provide for a range of mechanisms designed to implement a new relationship between the indigenous community and the state.  The Maa-nulth agreement is intended to reflect an agreed relationship with the state for the very first time while the Ngāti Porou settlement aims to give effect to the rights and obligations of the relationship established by the Treaty of Waitangi.  These different contexts are important and do give rise to significant differences in process and substance, but perhaps not to the extent one might expect. 

In any case, even though it makes for a relatively crude comparison, we can consider the total dollar value of these agreements and the amount of lands being returned.  These will both be important factors contributing to the sustainability of community infrastructure and, ultimately, the durability of the agreements.  The land package in the Maa-nulth Final Agreement consists of approximately 24,500 hectares.  Ngāti Porou will have approximately 6,000 hectares returned to them.  Even though the Maa-nulth nations are located on the relatively small Vancouver Island, and not the vast lands of mainland British Columbia, it might still be argued that, in general, the amount of land the state has at its disposal in Canada is much greater than the amount of land that could be used for Treaty of Waitangi settlements in New Zealand.  Indeed, that is no doubt part of the reason why the Maa-nulth nations are receiving a much greater percentage of their traditional lands as part of their agreement. 

In terms of the monetary component of these agreements, the Ngāti Porou settlement includes financial redress of $90 million (NZ) and the Maa-nulth agreement provides for capital transfers of a similar amount (approximately $70 million CDN which, at current exchange rates, is about $90 million NZ).  I should note that the total value of the Ngāti Porou settlement is cited as $110 million (NZ) but that includes the value of properties returned as part of their ‘cultural redress’.  As far as I can ascertain, the value of the capital transfers in the Maa-nulth agreement do not include the value of returned land.  The Maa-nulth agreement also provides for various other forms of ongoing funding, though those other funding streams generally reflect things such as contracts for provision of social services that are not dealt with in the settlement of historical Treaty of Waitangi claims.

Given that the traditional territories of both communities cover a comparable land area, it might seem logical that the value of these agreements are roughly similar.  However, when we recall that the Maa-nulth Nations have a population of 2,000 and Ngāti Porou has a population of over 70,000 it is clear that the Maa-nulth agreement is much more valuable when considered on a per-capita basis.  It is, of course, arguable that present day population size ought not to be the only, or indeed the predominant, factor in determining the financial value of the Treaty of Waitangi settlements.  I agree that the primary consideration in the historical Treaty claims settlement process ought to “what will provide a just resolution of these grievances?”.  Having said that, it is a narrow vision of justice that would not take account of the value of the settlement pre head of population.  Furthermore, if the settlement of historical Treaty of Waitangi claims is going to contribute to broader goals of reconciliation, then such settlements must provide a sufficient economic base for settling groups to establish a sustainable tribal infrastructure.  If these settlements do not provide a sufficient base for tribal infrastructure to meet the needs of its population over more than a single generation, these settlements will not be “full and final” and will not assist with a wider process of reconciliation.

I think there are significant flaws in both the British Columbia Treaty Process and the Treaty of Waitangi Claims Settlement Process, some of which I have referred to previously.  There are also numerous differences in law and policy, historically and today, between the Canadian and New Zealand jurisdictions, so any comparisons must be heavily qualified.  Nevertheless, a quick (and admittedly, fairly rough) comparison between the Maa-nulth and Ngāti Porou agreements reinforces the need to consider the justice of these agreements from multiple angles if we wish them to be durable and to contribute to broader objectives of reconciliation.

Inter-American Commission on Human Rights to consider indigenous land rights in BC

I’ve just recently caught up with an interesting decision from the Inter-American Commission on Human Rights (IACHR) that was delivered towards the end of last year and which relates to the British Columbia Treaty process.  The case was brought by the Hul’qumi’num Treaty Group who represent six First Nations in treaty negotiations with the provincial government of British Columbia and the federal government of Canada. The IACHR has not yet dealt with the substantive issues raised by the Hul’qumi’num Treaty Group.  This decision only deals with the question of the admissibility of the case, simply determining that the IACHR will hear the case.  But this, in itself, is an important step and the reasoning of the IACHR is significant.

The IACHR is an autonomous branch of the Organization of American States and receives cases (in the form of ‘petitions’) that allege violations of human rights that are protected in the American Declaration of the Rights and Duties of Man or the American Convention on Human Rights.  Canada is a member of the Organization of American States and, having ratified the Charter of the Organization, is subject to the jurisdiction of the IACHR.

The Hul’qumi’num Treaty Group allege that Canada is in breach of its human rights obligations, primarily, under various articles of the American Declaration of the Rights and Duties of Man.  Those articles are:  Article XXIII (right to property); Article XIII (right to culture), and Article II (equality before the law).  The petition alleges that the rights of the Hul’qumi’num Treaty Group have been breached because of “the absence of demarcation, established boundaries and recording of title deed to their ancestral lands; the lack of compensation for [the Hul’qumi’num Treaty Group] ancestral lands currently in the hands of private third parties; the granting of licenses, permits and concessions within ancestral lands without prior consultation; and the resulting destruction of the environment, the natural resources and of those sites the [Hul’qumi’num Treaty Group] consider sacred”. 

As noted above, the IACHR has yet to consider the substance of those allegations.  But its decision to admit this case is significant, in particular, because of the IACHR’s approach to the question of whether all domestic remedies have been exhausted. As is common with other international bodies, the IACHR will not admit cases if there issues can be reasonably addressed by the domestic courts or through some other process in place within the country’s own legal system.  In this case, the Canadian government argued that the Hul’qumi’num Treaty Group had not yet explored all possible avenues to address there concerns within the Canadian legal system.  Therefore, these issues could not yet be considered by an international body such as the IACHR.  However, the IACHR disagreed.

 

The Canadian government argued that the Hul’qumi’num Treaty Group’s ongoing engagement with the British Columbia Treaty process was the ideal process for addressing their claims in relation to territorial rights.  But the IACHR note that this process has not allowed negotiations on the subject of restitution or compensation for lands now in private ownership, and such lands make up 85% of the Hul’qumi’num Treaty Group’s traditional territory.  The Hul’qumi’num Treaty Group have been involved in the treaty negotiation process since 1994 and their central claims have not yet been resolved.  The IACHR, therefore, found that this process was demonstrably not an effective mechanism for protecting the rights at issue in this case.

The Canadian government also pointed to a range of proceedings that the Hul’qumi’num Treaty Group could pursue through the courts, including actions to obtain recognition of aboriginal title, actions under the provisions of the Canadian Charter of Rights and Freedoms, applications for judicial review, and petitions under heritage legislation demanding that the Crown fulfill its obligations to conduct prior consultation with indigenous peoples.  To support this argument, the Canadian government points to judgments from the Canadian courts which have recognized the existence of aboriginal title and the right to consultation. However, the IACHR notes that the experience of other indigenous groups has shown that none of those judgments has resulted in a specific order mandating the demarcation, recording of title deed, restitution or compensation of indigenous peoples with regard to ancestral lands in private hands.

Consequently, the IACHR found that there were no domestic remedies that provided the Hul’qumi’num Treaty Group with any reasonable expectation of successfully being able to protect the rights in question.  The IACHR will therefore proceed to consider the substance of the case.  The Hul’qumi’num Treaty Group is hoping for a decision on the substantive issues sometime this year.  That decision could have significant implications for the treaty process and I am sure that many people involved in the process will be awaiting the outcome with interest.

Year 170: Treaty Settlements Progress

The settlement of Treaty of Waitangi claims continued at pace during the 170th year of the Treaty relationship.  

The Crown signed Terms of Negotiation with NgāiTakoto (a Far North iwi based around Kaitaia and the Aupouri Peninsula) and Ngā Punawai o te Tokotoru (a group comprised of three Te Arawa iwi: Ngati Rangiteaorere, Tapuika and Ngati Rangiwewehi).  Terms of Negotiation provide the guidelines under which negotiations between settling groups and the Crown will proceed.  For completeness, it should be noted that the Terms of Negotiation agreed with Ngā Punawai o te Tokotoru amend Terms previously signed with Tapuika and Ngati Rangiwewehi in 2008 so as to include Ngati Rangiteaorere.  NgāiTakoto has also recently progressed to the next stage in the settlement process and signed an agreement in principle as one of five iwi that comprise the Te Hiku Forum.

Agreements in principles or letters of agreement were signed with eight different Māori groups, representing seventeen iwi.  These agreements provide a broad outline of an agreed settlement package.  On the basis of that broad outline, the parties then work towards agreeing Deeds of Settlement which set out the details of the settlement redress.  Over the course of the last year, Deeds of Settlement were signed with Ngāti Manawa, Ngāti Whare, and Waikato-Tainui (the latter specifically addressing claims in relation to the Waikato River).  A Deed of ‘on account’ Settlement (agreeing specific matters prior to a comprehensive settlement) was also signed with Whanganui Iwi.  Furthermore, legislation to implement the settlement of the Port Nicholson Block claims was enacted and the transfer in July of approximately $450 million in land and cash to eight Central North island Iwi completed the Central North Island Forestry Settlement.

During 2009, the Government also consulted representatives of Māori groups on proposals to speed up the settlement process and make it more efficient.  

The progress of Treaty settlements is heartening.  As are attempts to speed up the settlement process.  Nobody would like to see the speedy conclusion of Treaty settlements more than Māori.  The return of lands and the provision of symbolic compensation can provide a foundation from which settling groups may begin to rebuild an economic base, which so many Māori groups have had taken from them in breach of the principles of the Treaty.  That rebuilding cannot happen soon enough.  

But we should also proceed cautiously in this area if we want to ensure these settlements are durable and contribute to a wider project of reconciliation.  The Canadian sociologist, Andrew Woolford, has studied the treaty process that is underway in British Columbia.  Despite the different historical contexts, the British Columbia process of modern treaty negotiations with First Nations has many similarities with the Treaty of Waitangi settlement negotiations in New Zealand.  In his 2005 book, Between Justice and Certainty, Woolford argues that if too little attention is paid to the justice of settlements because the the primary objective is seen as being to agree pragmatic deals as quickly as possible, then the injustice is not properly addressed and the settlements are unlikely to be ‘full and final’.  We can see this sentiment reflected in recently reported comments from Ngati Kahu negotiator, Margaret Mutu when she suggests that none of the settlements Maori have made with the Crown are final, and future generations will go back to the Crown for more.  And this on the eve of Mutu signing an agreement in principle with the Crown on behalf of Ngati Kahu as part of the Te Hiku Forum.

Perhaps instead of focusing on ways to conclude settlements faster, we should consider more carefully what is actually required to properly redress breaches of the Treaty and develop a strong foundation for a healthy, on-going Treaty relationship.