KEY POINTS:
It was billed as a showdown between the Crown and the Waitangi Tribunal - with the tribunal likely to be armed with blanks.
On the day of the judicial conference, there is a face-off, but it is between lawyers. It seems an unfair fight - about 45 for
various Maori claimants versus just three for the Crown. But with the tribunal doing little more than watching from the sideline, it soon becomes clear who has the biggest guns - the Crown who stand staunch and repeatedly say "no".
This is a gathering where politics rather than justice in decision-making holds sway - a hui that exposes an underfunded, time-starved, over-stressed tribunal outplayed by the Crown at every turn.
Arranged in a wide "U" shape under the cavernous gable of the Pipitea wharenui in Wellington, the combatants sit far apart. At the rear of the meeting house are tribunal acting chairwoman Judge Carrie Wainwright and tribunal members Joanne Morris and Professor Hirini Mead. To her right at thin tables are tribunal registrars and then the Crown lawyers.
Across the room are the claimant lawyers. Facing the judge, at the open end of the "U", is the public on rows of plastic chairs.
Judge Wainwright called the conference this week to decide if there should be an urgent inquiry combining the complaints of more than 50 Maori groups concerning unfair and prejudicial treatment by the Crown's Treaty settlement process. The turnout of lawyers is, by all accounts, unprecedented in the tribunal's history.
She said that if the tribunal was to hear each case separately, it would involve a great deal of tribunal money and resources. "So really the purpose of this judicial conference is efficiency." To that end the judge tells the claimant lawyers they will get just five minutes each to state their case.
"We are only interested in hearing from claimants who have evidence now on the effect on them of the Crown's settlement policy and can demonstrate prejudice now as a result of it," says Judge Wainwright. "We are not interested in a theoretical discussion about what the Crown settlement policy ought to be. That is not the business of the tribunal. That is the business of government."
By lunchtime about 25 lawyers have given their five-minute accounts - several are stopped midstream. A wide range of issues are raised, including the Crown's policy of only negotiating with "large natural groupings", its method of mandating whom it negotiates with, how it decides on priority, and ensuring that Crown assets are available for redress and not sold off.
In some cases claimants show they have been involved in the claims process for 20 years and, despite tribunal findings in their favour, no settlement is in sight.
There is widespread agreement that a joint inquiry has merit. Many support Kensington Swan lawyer Richard Boast's submission that a joint inquiry would minimise the problem of settlement-related issues coming up over and over again. That it would also provide an opportunity for clear and detailed enunciation of Crown policy, giving greater transparency. And that it would minimise a likely proliferation of ad-hoc urgency inquiries into Treaty settlements in forthcoming years.
"The focus of the inquiry should be one of assisting the Crown in devising better and more workable policy and in devising better ways to implement existing policy," says the Boast submission.
Mr Boast suggests such an inquiry should be welcomed by both Crown and claimants alike - "as a positive and useful development in the journey of this country towards resolution of claims and issues that have been present since the beginning of this country's history".
It's a vain hope. After lunch Crown Law's Craig Linkhorn tells the gathering the Crown's policy is to enter into comprehensive and durable settlements and to do that by 2020.
Mr Linkhorn says that each time the Crown is required to participate in urgent or remedies inquiries about the Crown's settlements policies, it is a diversion of resources that take away from negotiated settlements. He says claimant groups cannot dictate what the Crown's negotiation priorities should be: "That's fundamentally a political decision." Mr Linkhorn then makes forceful arguments to disintegrate each of the claimants' concerns. The various groups contesting the $200 million Te Arawa settlement can be dealt with by the pending inquiry into those matters. Those in National Parks areas concerned about the sale of Crown properties that may be part of settlement packages are premature as there are inter-departmental discussions under way dealing with those issues. Similarly in other areas - the East Coast and Whanganui - there is no cause for urgency as negotiations are far from complete.
Groups calling for urgent or remedy hearings are trying to jump the queue and are disadvantaging those who have yet to have a district hearing. Mr Linkhorn's speech is peppered with phrases of denial: " ... There is no obvious time pressure ... the threshold for a hard look at that has not been reached ... there is not evidence of irreversible prejudice of the kind that would lead to priority ... decisions about priorities in negotiations are inherently political decisions ... "
The Crown says no, no and no again. Even the gallery of claimant lawyers - hardened to dealing with intractable Treaty issues - look stunned to hear the Crown's position stated so baldly.
Similarly Crown Law's David Soper outlines why there is no need for an urgent inquiry into concerns by seven Auckland tribal groupings over the proposed $90 million settlement in favour of Ngati Whatua o Orakei. Mr Soper says the Crown has written to each of the groups outlining a 12-week consultation process for their claims. Judge Wainwright says giving the groups just 12 weeks when it has been dealing with Ngati Whatua for about five years hardly seems fair. The groups have argued that the Crown's approach is little more than going through the motions and that the Crown intends to ignore their concerns about who has rights to the Auckland isthmus and settle with Ngati Whatua.
The groups argue no single tribe ever held control of Auckland and that in the 1840s it was an area inhabited by several co-existing tribes.
Adding insult to injury, Mr Soper excludes Auckland claimant Te Taou from the process.
Te Taou says the Crown's Auckland negotiations are with the wrong tribe and that Ngati Whatua o Orakei is an artificially created entity that does not trace whakapapa to the rightful conquerors of the Auckland isthmus. Te Taou's counsel says the Crown's refusal to acknowledge its concerns heightens the need for a decision about whether there should be an urgent Auckland inquiry.
The conference draws to a close. It has been a long day, described by one observer as "a tactic designed to bore everyone to death". Judge Wainwright calls for both sides to file written submissions. She expects to make her decision by Wednesday.
But in the face of the Crown's intransigence to change its policy, and its opposition to any form of inquiry, it is hard to see how a green light to inquire into either Auckland or wider Treaty issues would make any difference.
