Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Wellington, New Zealand
5 September 2005
On 5 September 2005, several Maori claimant groups, represented by Nga Kaihautu o Te Arawa Executive Council, signed an Agreement in Principle with the Crown to settle historical claims under the Treaty of Waitangi. An important step in the evolving treaty settlement process, this signifies New Zealand’s largest single settlement of historical grievances within the shortest time period to date. It seeks to redress the Te Arawa Iwi and Hapu (comprising over 20,000 people) for grievances in relation to the Native Land Court, nineteenth century land purchases by the Crown, and Maori land administration in the twentieth century. Based on this non-binding agreement, the parties will develop a Deed of Settlement to be initialled in 2006. If ratified by the represented claimant groups, the Agreement will be implemented in legislation and the settlement will take effect.
The Agreement includes a financial and commercial redress package totalling NZ$36 million, with the right to purchase a substantial area of Crown forest licensed land; cultural redress including the vesting of 19 cultural and spiritually significant sites in the Maori claimant groups; and an historical account which recognises the breaches of the Treaty of Waitangi.
1. On 1 April 2004, the Crown recognized the mandate of Nga Kaihautu o Te Arawa Executive Council (the Kaihautu Executive Council) to negotiate, on behalf of the Affiliate Te Arawa Iwi/Hapu, an offer for the settlement of the Historical Claims. On 26 November 2004, the parties entered into Terms of Negotiation (the Terms of Negotiation), which set out the scope, objectives and general procedure for negotiations.
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3. Negotiations have now reached a stage where the parties wish to enter into this Agreement in Principle recording that they are willing to settle the Historical Claims by entering into a Deed of Settlement on the basis set out in this Agreement in Principle.
4. This Agreement in Principle contains the nature and scope, in principle, of the Crown’s offer to settle the Historical Claims.
5. The redress offered to the Affiliate Te Arawa Iwi/Hapu to settle the Historical Claims comprises three main components. These are:
a) Historical Account, Crown Acknowledgements and Crown Apology;
b) Cultural Redress; and
c) Financial and Commercial Redress.
6. Following the signing of this Agreement in Principle, the parties will work together in good faith to develop, as soon as reasonably practicable, a Deed of Settlement. The Deed of Settlement will include the full details of the redress the Crown is to offer to settle the Historical Claims. The Deed of Settlement will be conditional on the matters set out in paragraph 81 of this Agreement of Principle.
7 . The Crown and the Kaihautu Executive Council each reserve the right to withdraw from this Agreement in Principle by giving written notice to the other party.
8. This Agreement in Principle is entered into on a without prejudice basis. It:
a) is non-binding and does not create legal relations;
b) is not to be used as evidence in any proceedings before, or presented to, the Courts, the Waitangi Tribunal and any other judicial body or tribunal; and
c) does not affect the Terms of Negotiations between the Kaihautu Executive Council and the Crown.
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10. The Crown Acknowledgements and Apology are the cornerstone of the Crown’s settlement offer and, together with the agreed Historical Account, contribute to the Affiliate Te Arawa Iwi/Hapu telling their stories. The Deed of Settlement will contain an agreed Historical Account that outlines the historical relationship between the Crown and the Affiliate Te Arawa Iwi/Hapu.
11. On the basis of this Historical Account, the Crown will acknowledge in the Deed of Settlement that certain actions or omissions of the Crown were a breach of Te Tiriti o Waitangi/the Treaty of Waitangi and its principles. The Crown will then offer an apology to the Affiliate Te Arawa Iwi/Hapu for the acknowledged Crown breaches of Te Tiriti o Waitangi/the Treaty of Waitangi and its principles.
12. … Following the signing of this Agreement in Principle, further sections of the Historical Account will be drafted for inclusion in the Deed of Settlement and, in broad terms, will include the following matters:
a) twentieth century Maori land administration;
b) land development schemes;
c) Crown and private land purchasing;
d) land takings for public works;
e) scenery preservation;
f) geothermal and tourism; and
g) forestry.
13. The Cultural Redress package is based on factors such as the nature and extent of claims, the redress sought by the Kaihautu Executive Council and the instruments available to the Crown. Certain cultural redress instruments are designed to recognise the historical and cultural interests of the Affiliate Te Arawa Iwi/Hapu. All items of cultural redress are subject to the following being resolved before a Deed of Settlement is signed:
a) the Crown confirming that any overlapping claim issues in relation to any item of cultural redress, particularly in relation to Overlapping Te Arawa Groups, have been addressed to the satisfaction of the Crown; and
b) any other conditions set out below relating to specific items of cultural redress.
14. The value of the cultural redress is not off-set against the Financial and Commercial Redress Amount.
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16. A protocol is a statement issued by a Minister of the Crown setting out how a particular government agency intends to:
a) exercise its functions, powers and duties in relation to specified matters within its control in the claimant group’s protocol area; and
b) consult and interact with the claimant group on a continuing basis and enable that group to have input into its decision-making processes.
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19. The Conservation Protocol may cover matters such as:
a) input into business planning and conservation management at the area office level;
b) access to, and the use of, cultural materials gathered from public conservation land for traditional purposes;
c) the management of cultural and historic heritage sites, including wahi tapu and wahi taonga, and other places of historical and cultural significance to the Affiliate Te Arawa Iwi/Hapu on public conservation land;
d) visitor and public information, in particular, opportunities for input into visitor appreciation;
e) input by the Governance Entity into the Department’s species management work;
f) co-operation on freshwater fisheries;
g) consultation on the Department’s pest control operations;
h) co-operation on advocacy under the Resource Management Act 1991, particularly in relation to the protection and restoration of wetlands;
i) consultation with the Governance Entity on conditions for protection of wahi tapu and taonga when considering concession applications;
j) participation by the Governance Entity in any name changes instituted by the Department;
k) identification of special projects, and provision of the Department’s resources to carry out projects the Department decides to proceed with; and
l) confidentiality mechanisms for the protection of culturally sensitive information.
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41. Statutory acknowledgements provide for the Crown to acknowledge a statement by the Affiliate Te Arawa Iwi/Hapu of their cultural, spiritual, historical and traditional association with a particular area. They further provide for:
a) relevant consent authorities, the New Zealand Historic Places Trust and the Environment Court to have regard to the statutory acknowledgments for certain purposes;
b) relevant consent authorities to forward to the Governance Entity summaries of resource consent applications for activities within, adjacent to, or impacting directly on, the area in relation to which a statutory acknowledgment has been made; and
c) the Governance Entity and any member of the Affiliate Te Arawa Iwi/Hapu to cite to consent authorities, the New Zealand Historic Places Trust and the Environment Court the statutory acknowledgment as evidence of the association of the Affiliate Te Arawa Iwi/Hapu with the area in relation to which the statutory acknowledgement has been made.
42. The statutory acknowledgment provided to the Governance Entity will, in substance, be provided on the same terms to those provided in previous Treaty settlements. In particular, the statutory acknowledgements:
a) will not affect the lawful rights or interests of a person who is not a party to the Deed of Settlement;
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d) will not prevent the Crown from providing a statutory acknowledgment to persons other than the Affiliate Te Arawa Iwi/Hapu or the Governance Entity with respect to the same area.
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54. The Financial and Commercial Redress Amount is $36 million.
55. The Deed of Settlement and the Settlement Legislation will provide for the Crown to transfer to the Governance Entity on Settlement Date:
a) selected Commercial Redress Properties (with the total value of the selected properties not exceeding the Financial and Commercial Redress Amount); and
b) the Cash Settlement Amount (being the total value of the Financial and Commercial Redress Amount less the Transfer Value of the Commercial Redress Properties).
56. The Deed of Settlement will also provide the Governance Entity with a right to deferred purchase of certain Crown assets and properties for six months after Settlement Date, as specified in paragraphs 63 to 68 below.
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59. The Transfer Value for the Commercial Redress Properties will be at a fair market value and determined in accordance with a valuation process in a similar form to that set out in Attachment 6. The effective date of valuation will be the date of the Deed of Settlement. The Governance Entity may pay the Transfer Value of a Commercial Redress Property direct to the relevant Crown agency, in which case the Transfer Value will not be deducted from the Cash Settlement Amount.
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61. Appropriate legal access and other rights required between the parts of the Licensed Crown Forest Land that the Kaihautu Executive Council chooses to take and the balance of the land will need to be further defined and agreed. In this regard, the transfer of Licensed Crown Forest Land will be subject to:
a) reciprocal easements across such parts of the roading network as are necessary to provide for ongoing legal access for forestry operations; and
b) provision for access to, and protection of, wahi tapu of other iwi/hapu.
62. The Settlement Legislation will provide for the accumulated rentals (held by the Crown Forestry Rental Trust), associated with Licensed Crown Forest Land selected as a Commercial Redress Property, to be paid to the Governance Entity in accordance with the trust deed of the Crown Forestry Rental Trust dated 30 April 1990 (as if the Waitangi Tribunal had made a final recommendation for the return of that land to the Governance Entity). The accumulated rentals are in addition and separate to the Financial and Commercial Redress Amount. For avoidance of doubt, the accumulated rentals associated with Licensed Crown Forest Land selected through the right of deferred selection will not be paid to the Governance Entity.
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69. The transfer of the Commercial Redress Properties and Deferred Selection Properties will be subject to:
a) the consent of the relevant Crown agency;
b) confirmation that no prior offer back or other third party rights and obligations, such as those under the Public Works Act, exist in relation to the property; and any other statutory provisions which must be complied with before property can be transferred are able to be complied with;
c) any express provisions relating to specified properties that are included in the Deed of Settlement;
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e) any rights or encumbrances (such as a tenancy, lease, licence, easement, covenant or other right or interest whether registered or unregistered) in respect of the property to be transferred, either existing at the date the Deed of Settlement is signed, or which are advised in the disclosure information to be provided to the Kaihautu Executive Council as requiring to be created;
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h) the Crown confirming the nature and extent of overlapping claims to the properties, particularly in relation to Overlapping Te Arawa Groups, and the Crown being satisfied that these interests have been appropriately safeguarded.
76. The Affiliate Te Arawa Iwi/Hapu and the Crown will acknowledge (amongst other things) in the Deed of Settlement that the settlement of the Historical Claims:
a) will prevent any member of the Affiliate Te Arawa Iwi/Hapu (or any representative entity of the Affiliate Te Arawa Iwi/Hapu) from pursuing claims against the Crown (including claims based on Te Tiriti o Waitangi/the Treaty of Waitangi or the principles of Te Tiriti o Waitangi/the Treaty of Waitangi, or on legislation, common law (including aboriginal title or customary law), a fiduciary duty or otherwise) if such claims come within the definition of Historical Claims;
b) is intended to enhance the ongoing relationship between the Crown and the Affiliate Te Arawa Iwi/Hapu (both in terms of Te Tiriti o Waitangi/the Treaty of Waitangi and otherwise);
c) except as expressly provided in the Deed of Settlement, will not limit any rights or powers the Crown or the Affiliate Te Arawa Iwi/Hapu might have arising from Te Tiriti o Waitangi/the Treaty of Waitangi or the principles of Te Tiriti o Waitangi/the Treaty of Waitangi, legislation, common law (including aboriginal title and customary law), fiduciary duty or otherwise;
d) does not extinguish any aboriginal title, or customary rights, that the Affiliate Te Arawa Iwi/Hapu may have;
e) does not imply an acknowledgement by the Crown that aboriginal title, or any customary rights, exist; and
77. The Affiliate Te Arawa Iwi/Hapu will acknowledge and agree (amongst other things) in the Deed of Settlement, and the Settlement Legislation will provide that, with effect from the Settlement Date:
a) the Historical Claims are settled;
b) the settlement of the Historical Claims is final;
c) the Crown is released and discharged from any obligations, liabilities and duties in respect of the Historical Claims;
d) the Crown has acted honourably and reasonably in respect to the settlement;
e) it is intended that the settlement is for the benefit of the Affiliate Te Arawa Iwi/Hapu and may be for the benefit of particular individuals or any particular iwi, hapu, or group of individuals as is determined appropriate between the Kaihautu Executive Council and the Crown;
g) the Courts, the Waitangi Tribunal and any other judicial body or tribunal do not have jurisdiction (including the jurisdiction to inquire into or to make a finding or recommendation) in respect of:
i) the Historical Claims;
ii) the Deed of Settlement;
iii) the redress provided to the Affiliate Te Arawa Iwi/Hapu and the Governance Entity in the settlement; and
iv) the Settlement Legislation; (except for in respect of the interpretation and enforcement of the Deed of Settlement and the Settlement Legislation); and
h) any proceedings in relation to the Historical Claims being discontinued.
78. The Affiliate Te Arawa Iwi/Hapu and the Crown will acknowledge in the Deed of Settlement that:
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c) the Crown seeks to achieve fairness between claims so that similar claims receive a similar level of financial and commercial redress;
d) the Crown has to set limits on what and how much redress is available to settle historical claims;
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f) it is not possible to fully compensate the Affiliate Te Arawa Iwi/Hapu for all the loss and prejudice so suffered;
g) this foregoing of full compensation is intended by the Affiliate Te Arawa Iwi/Hapu to contribute to the development of New Zealand;
h) the decision of Affiliate Iwi/Hapu in relation to this settlement is a decision that the Affiliate Iwi/Hapu take for themselves alone and it does not purport to affect the position of other tribes; and
i) taking all matters into consideration (some of which are specified in this clause) the settlement is fair in the circumstances.
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81. This Agreement in Principle and/or the Deed of Settlement (as appropriate) will be subject to the following conditions:
a) the Crown confirming that overlapping interests from other tribal groups, including Overlapping Te Arawa Groups, in relation to any part of the settlement redress have been addressed to the satisfaction of the Crown in respect of that item of redress …
c) The Kaihautu Executive Council obtaining, before the Deed of Settlement is signed, a mandate from the members of the Affiliate Te Arawa Iwi/Hapu (through a process agreed by the Kaihautu Executive Council and the Crown) authorising them to:
i) enter into the Deed of Settlement on behalf of the Affiliate Te Arawa Iwi/Hapu; and
ii) in particular, settle the Historical Claims on the terms provided in the Deed of Settlement;
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83. This Agreement in Principle and the Deed of Settlement will be subject to:
a) the passing of Settlement Legislation to give effect to parts of the settlement; and
b) Affiliate Te Arawa Iwi/Hapu supporting the passage of Settlement Legislation.
84 The Crown will not be obliged to propose Settlement Legislation for introduction into the House of Representatives until the Governance Entity has been established and has signed a Deed of Covenant, through which the Governance Entity covenants with the Crown that it is a party to the Deed of Settlement and agrees to be bound by it.
The full text of the Agreement in Principle is available online at <http://www.ots.govt.nz/> .
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2005/80.html