Waitangi 2023: Treaty settlements under Labour, and what’s happening with Ngāpuhi, country’s largest iwi

The Treaty settlement process was initially politically controversial but is now celebrated by politicians of all stripes. Ahead of gatherings at Waitangi, Michael Neilson spoke to Treaty Negotiations Minister Andrew Little about what he’s learned in five years on the job, including the need to first repair relationships, and to Māori leaders about why for many the process is still neither fair nor just.

Treaty Negotiations Minister Andrew Little says the Crown needs to earn back the trust of iwi and hapū before it can even begin to negotiate redress over settling past wrongs.

It’s a lesson he’s learned in his more than five years in the role - largely through dealing with yet-to-settle Ngāpuhi, the country’s largest iwi grouping - and also signals an evolution in the process to settle historical breaches of the Treaty of Waitangi.

It also means the rush of successive governments, from the $1 billion fiscal envelope to various arbitrary end dates to settle breaches as quickly as possible appears to be over.

It’s also a defence of what to some might appear as simply a lack of progress.

In the past five and a half years, Little has overseen 13 settlements become law, worth $690 million. However, five of those, worth about $300m, were actually signed under National’s Chris Finlayson, prior to Little taking over the role, and making up the vast bulk of the work.* The last under Finlayson was Ngāti Tūwharetoa, with the Deed of Settlement signed on July 8, 2017.

In the preceding nine years under a National government, according to the Ministry of Māori Crown Relations Te Arawhiti there were 46 settlements were passed into law under Finlayson’s watch worth just over $1.23b - more than twice the rate of Little.

“I’ll admit it has been a lot slower,” Little tells the Herald.

Some iwi leaders spoken to by the Herald say it has been a “welcome change”, though there is also growing concern about inequity between settlements negotiated at various stages.

Part of the slowdown is due to increasing litigation, Little says, with more overlapping claims and iwi and hapū becoming more “Treaty literate”, as well as a growing pool of jurisprudence and talented lawyers.

There was also Covid-19, which paused many negotiations that had to be held kanohi ki te kanohi (face to face), and a lot of resources spent with Ngāpuhi, before the mandate was rejected and sent back to the drawing board.

Minister of Treaty Negotiations Andrew Little accepts a wero during engagement with Ngāpuhi in 2018. Photo / John Stone

But the slowing has also been deliberate, an implicit acknowledgement by the Crown that Māori were increasingly unhappy with the process, something the Waitangi Tribunal has itself ruled on, saying settlements must not cause further grievance.

National’s nine years included “revolutionary” and world-leading settlements, such as those with Tūhoe and Whanganui iwi, which gave Te Urewera and Whanganui River legal identities, but for some the rapid approach also saw mandate issues emerge, with legal challenges and widespread dissatisfaction.

National currently pledges to complete all settlements with iwi and hapū that are willing by 2030 - reconfirmed by leader Christopher Luxon at Waitangi on Sunday. (National was approached for further comment but did not respond by deadline).

Labour meanwhile has scrapped any such policy, with a focus on “durable” settlements led by tikanga.

“Iwi leaders, those negotiating, are carrying this huge mental, historical mantle of responsibility for breaches of the Treaty to their tupuna that they have carried down through the generations,” said Little.

“I certainly make no apology for respecting the need for durable settlements, as opposed to just doing things fast.”

The largest settlement under Little was Maniapoto signed last year, worth $165m, and for which former prime minister Jacinda Ardern delivered the apology.

Treaty settlements under Labour from 2018 until January 18, 2023. Photo / Supplied

For Little, it was delivering the Ngāti Maru apology in Taranaki last year that held the most significance, given he had grown up in the area.

“I found myself getting quite emotional. You think about how the Crown treated iwi, deceitful, harmful. The huge economic and social wealth lost.

“Then facing the people who are descendants, who have carried the consequences of that harm, generation after generation. But it is also a healing process for many involved.”

To even get to that point of negotiation though required iwi and hapū to have confidence in the Crown, a party with whom many had very little confidence for over 180 years, Little said.

“[Ngāpuhi kuia] Titewhai Harawira shortly before she passed, reminded me that the reason to engage over the breaches of the Treaty is to restore the relationship. That must be the Crown’s focus. And that’s what I’ve given priority to.”

The process of settling historical breaches of the Treaty began in 1975 with the Waitangi Tribunal, empowered 10 years later to hear claims from Māori groups.

The first settlement in 1990 was in respect of Waitomo Caves, and involved the transfer of land and a loan. In 1992 came the pan-iwi Fisheries Settlement, worth $170m.

As of January this year, according to the Ministry of Māori-Crown Relations Te Arawhiti, 86 deeds of settlement had been negotiated and signed into law with iwi and hapū, totalling just over $2.6b in redress for historical wrongs (this excludes pan-iwi settlements).

Researchers say this sum is well below the actual loss to Māori, with some estimating redress to be as little as one per cent of the true value. For context, the Department of Corrections budget last year was $2.4b.

The largest settlement has been Waikato-Tainui, the first iwi to settle in 1995 receiving $170m in redress – worth about $312m in 2022 dollars.

Ngāti Hine leader Pita Tipene. Photo / Michael Cunningham

Ngāi Tahu is the second-largest, receiving $170m in 1997, and as both signed under the now-defunct $1b fiscal envelope they included relativity clauses to ensure their settlements remained at that share of total settlement expenditure (17 per cent for Waikato-Tainui and 16.1 per cent for Ngāi Tahu).

Approximately 40 groups are yet to sign a deed of settlement, though Te Arawhiti says this number may change as groups come together or separate for negotiation purposes.

Many iwi that have settled, particularly the ones that did so earlier, have seen their resources grow substantially, with Waikato-Tainui’s asset base now approaching $2b, enabling them to redistribute among iwi members and invest in their people and area.

However, that process has created an imbalance for iwi yet to resolve their grievances. It is part of the reason why the Government established the Ngāpuhi Investment Fund - Tupu Tonu - kickstarted with $150m from the Crown, and aligned with local hapū aspirations, along with restoring that relationship.

But while the redress provided a kickstart for iwi and hapū to realise aspirations, Ngāti Hine iwi leader Pita Tipene said it was misunderstood by the public as a key motivator.

He felt National had misunderstood the tribal landscape when it sought to lump all Ngāpuhi iwi and hapū into one settlement block, in a take-it-or-leave-it scenario.

He said they’d also played them off against the public mindset that they were the ones being difficult, only seeking money.

“Well, money is not what drives us, it’s not what motivates us. We want to see mana and rangatiratanga be upheld.”

Rather than forcing the country’s largest iwi grouping - made up of some 170,000 members and dozens of sub-tribes or hapū each with their own histories, cultures and grievances - to come to the negotiating table as one and on the Crown’s terms, he said Little had listened and agreed to negotiate, on Ngāpuhi terms.

Tipene said Ngāpuhi had formed its own natural groupings, not corralled by the Government into artificial ones, meaning they could actually work together.

Currently, there were looking to be about eight negotiating groups, of which a Ngāti Hine collective of nine hapū - sub-tribes - was one.

Tipene said they were hoping to have their mandate confirmed and start negotiations with the Crown by the Māori new year (Matariki).

He said he was “relieved” to see Little retain the portfolio in the recent Cabinet reshuffle, given the depth of the relationship they had developed and his understanding of the issues.

Still, there is no exact timeframe, and a recent Waitangi Tribunal report looks set to intensify negotiations, urging substantial compensation to Māori in the area, all Crown-owned land in the area be returned, and constitutional reform giving effect to Treaty rights.

University of Auckland Professor of Māori Studies and Ngāti Kahu leader Margaret Mutu. Photo / Supplied

Māori academic Professor Margaret Mutu, who has been chief negotiator and rūnanga chairwoman for her iwi Ngāti Kahu in the far north, has interviewed hundreds of Māori leaders about what she calls the “devastating and disastrous” Treaty claims settlement process, and applauds recent moves to “take a step back”.

She said early Crown approaches employed a “divide and conquer” tactic, which saw divisions among iwi and hapū that were still causing pain today.

“The Treaty settlement process has been anything but fair and just,” Mutu said.

Nothing was more evident in this failure than how Māori statistics, particularly around poverty, had barely changed during the entire process, Mutu said.

Under Labour and with Minister Little, Mutu said there had been a change in approach but the fundamental flaws in the process were still not addressed, with terms and scope of what was up for negotiation still largely dictated by the Crown.

This was the case with her own iwi, with negotiations stalled over the past five years as they sought a settlement in line with Waitangi Tribunal recommendations, while the Crown alleged issues with their mandate.

Mutu said iwi and hapū that were unhappy with their settlements should also be able to revisit them to ensure they were fair and just.

There were also “gross disparities” between some iwi and hapū, some better resourced than others to negotiate different outcomes, along with those that had settled early and now grown their commercial base.

These factors all risked sowing seeds of division among Māori.

“Fundamentally though it should not be the thief that determines what their punishment should be.

“We are trying to pull our people back out of poverty, marginalisation, deprivation, we are asking for land to build homes for our people to the same level Pakeha are housed.”

Both the Green Party and Te Pāti Māori support such an approach, along with making Waitangi Tribunal rulings binding.

On revisiting settlements, Little said there was an obligation not to cause further harm and generate further grievances, but the Crown had to act in a consistent manner with iwi, and for Pākehā to understand the obligations.

“It’s important we understand fully what the breaches were and the consequences of them.

“But at some point, we’ve also got to put a line under it and say, ‘What’s important now is the relationship with the future’.

“So we never get to the Treaty relationship if we don’t accept that once we reach an agreement that it is full and final.”

*Article updated to note the five Treaty settlements started under the previous National government and only passed into law under Labour.