David V. Williams: Too much of a rush to settle land claims

In spite of heightened Maori aspirations following the Foreshore and Seabed Act 2004, or perhaps because of them, most parties campaigning in last year's general election argued for a speeding up of the process of directly negotiated, comprehensive Treaty settlements and for imposing a deadline on the lodging of historical claims with the Waitangi Tribunal.

The Government's post-election support arrangements with the New Zealand First and United Future parties included general acceptance of those goals. In this political climate the Waitangi Tribunal, it seems to me, has sought to avoid further marginalisation by tailoring its inquiries and their outcomes as closely as possible to the Crown's settlement policies.

This is most obvious in papers published by the Tribunal in December on "The Waitangi Tribunal and the Settlement of Historical Treaty Claims" and "The new approach revisited: a discussion paper on the Waitangi Tribunal's current and developing practices".

The "new approach" was devised to expedite hearings and report writing; and then the "new modular form" as applied in the recent central North Island inquiry was designed to foster a quick entry for claimants into settlement negotiations with the Crown. Whether claimants choose the "standard" or the "modular" approach, the Tribunal's commitment is now abundantly clear: "The short point is that the Tribunal is ready, willing and able to facilitate negotiation in line with Government and claimant aspirations for all Treaty claims to be settled as soon as possible."

The Tribunal's new approach as now enunciated is profoundly disturbing. The Crown's settlement policy was adopted in 1995, despite an immense wave of opposition following the Hirangi hui of that year.

It was adopted before the hearing of claimants' or Crown evidence in most districts of the country, yet allocated a ballpark figure for redress payments to hapu and iwi in the whole country and created a template for cultural redress remedies. This was akin to a court deciding on damages payable to plaintiffs, and other possible remedies available to them, in advance of hearing the evidence.

All crucial elements of that policy were reaffirmed by the new Government in 2000 and continue to be implemented to this day.

In my view, the outcomes of Tribunal hearings should depend on the nature and the strength of the evidence put before it. The Tribunal does, of course, diligently consider the evidence it has heard and it does not accept all the claims made.

Yet the standard recommendation now proposed in Tribunal reports is that the claimants should negotiate the settlement of claims "in a single district-wide negotiation process if that is at all feasible", and that the specific claims of various claimants "should be included in a comprehensive settlement by the Crown".

I would urge that the Waitangi Tribunal should carefully sift the evidence presented to it as at present, but then it should offer a list of specific recommendations, as it once did in reports published in the 1980s.

The recommendations should relate to the proved strength of the claimants' cases in a hapu specific and location specific manner. The remedies recommended should bear some relationship to the evidence and the need for resolution of specific grievances. The Tribunal should do more than act as a conveyor belt that moves claimants along an orderly, lawyer-prescribed pathway towards acceptance of the Government's template for the settlement of historical claims.

The Government should do more listening to the specificities of Maori claims and be willing to provide case-by-case remedies that are appropriate to the precise historical grievances.

Finality and durability of settlements are said to be a desired outcome of the Crown's Treaty settlement policies, but the push to achieve a speedy end to the claims process seems likely to be no more successful than the historical claim settlements of the first Labour Government in 1944 and of the Muldoon National Government in the late 1970s and early 1980s.

If Maori of this generation are again offered a "this is as good as it will get so take it or leave it" settlement package, then neither they nor their mokopuna are likely to feel that the Tribunal and Crown settlement process has succeeded as an exercise in seeking truth and reconciliation.

Crown apologies, cultural redress and commercial redress may well facilitate durable settlements, but only if they follow a process in which Crown officials (and the general public) actually listen to the Maori claims. The Waitangi Tribunal hearings can be a magnificent forum for those who have the ears to listen.

Rather than go along with the current haste to conclude the historical Treaty settlements in a comprehensive manner, the Tribunal should encourage all parties to engage in "a longer conversation" - one of the options offered by the Tribunal itself in 2004 over the foreshore and seabed issues.

This conversation needs to be a genuine conversation, not a soliloquy by Maori, with the Crown's general position already pre-determined regardless of the grievances disclosed. The Tribunal needs to find ways and means to enable ministers of the Crown to listen to the details of the grievances that need to be heard and appropriately reconciled. It must do more than just consign claimants to their place in a queue to reach the officials in the Office of Treaty Settlements at the Charles Fergusson Building in Wellington.

* Professor David V. Williams has participated in in some 14 Tribunal inquiries from 1977 to 2005 and in two direct negotiations with the Office of Treaty Settlements.