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• 1995, September 9: Crown Proposals for Settlement of Treaty claims

9 September 1995

Office of Treaty Settlements
Department of Justice
Private Box 180
Wellington

Crown Proposals for Settlement of Treaty claims

Public Access New Zealand is a charitable trust based in Dunedin. Our objects include the preservation and improvement of public access to public lands, waters and the countryside. We advocate the retention of public ownership and control or resources of value for public recreation as the best proven means of protecting the public interest in these assets.

PANZ has 800 individual supporters and 200 supporting groups throughout New Zealand. Allowing for overlap, the declared memberships of these groups is approximately 250,000. There is a huge diversity of outdoor interests represented by our supporters. All our supporters sign a declaration that they support our objects.

Overview submission

The implications of the Crown's proposals for Maori are major. However there are also monumental implications for all New Zealanders with an interest in the welfare and use of the conservation estate and other natural resources.

For many months PANZ and other outdoors groups have been voicing their concerns at the manner in which Government has embarked on claims settlement. We have repeatedly called for a public consultation process, and for Government to stop acting as judge and jury of its own culpability for alleged Treaty breaches. Government is increasingly bypassing the Waitangi Tribunal as the arbiter on matters of history and fact. Executive government -- the Crown -- is increasingly deciding whether itself is "guilty" of Treaty breaches without independent hearing, and testing, of evidence. The conflict of interest is obvious, but apparently not compelling enough for Government to step to one side. The separation of powers between government and judiciary is fundamental to our constitution, and to the principle of natural justice, but apparently is of little consequence to our decision-makers.

In its proposals for Treaty settlement, Government imposes stringent accountability provisions for Maori claimants to ensure that their negotiators have a proper mandate to act. However no such measures are proposed as a check on the Crown's actions.

PANZ's concern is because of the consequence of the Government's approach for public lands and other resources. Government is making a habit of offering public and Crown lands to Maori claimants with no validity to their claims (for instance the Crown Titi Islands, Codfish Island, Mt Hikurangi, Greenstone and Caples valleys).

As a 'free' resource there will obviously be less vigour placed on validating claims over public lands than for commercially valuable SOE assets.

The proposals deal with surplus Crown land, the conservation estate, natural resources (including water, river and lake beds, foreshores, seabeds, minerals), and lands gifted to the Crown by Maori for a variety of public purposes. In contrast, the proposals do not make specific provision for use of SOE assets.

In summary we believe that the Crown Proposals:

• fail to provide for independent validation of claims
• fail to provide a public consultation process where public lands and other resources are involved
• are inconsistent in treatment of different Crown resources, effectively singling out the conservation estate for 'most favoured status' for use in settlements, while pretending that the estate is "not generally available" for this purpose.
  

Natural resources

PANZ largely supports the Government's proposals for claims relating to natural resources. The Crown's view is that "special rules must apply because the Crown controls these in the interests of all New Zealanders". We endorse the Government's view that Article I of the Treaty gives the Crown the authority to govern in the interests of all New Zealanders, and this includes controlling the use of a resource for the common good. Government does not consider that Article II guaranteed to Maori the ownership of natural resources, but accepts that Maori have 'use and value interests' under this Article.

The Government proposes that if land containing natural resources was fairly sold by Maori to the Crown, there would be a claim over the resources only if it was clearly understood that Maori could continue to use them. It is inconsistent for government to establish such a principle, which lies at the heart of the terms of the Treaty, and not to apply it to all Crown assets including the conservation estate. Establishing that a grievance is well-founded must apply in regard to all Treaty claims. Acting contrary to this principle is itself in breach of the Treaty.

Unlike for the conservation estate, the proposals specify Treaty-related criteria to form the basis for negotiation over natural resources, including breach of agreement and wrongful confiscation. Public consultation will occur "if any change in the public's interest in a resource is contemplated". However no mechanism for consultation is specified.

Gifted lands

For claims related to gifted lands, the proposals provide a sequence of tests for judging whether breaches occurred of the trust under which the Crown held such lands. This is in contrast to the conservation estate, where there are no such standards to test the validity of claims.

Conservation estate

"In general the Crown proposes that conservation estate land should not be used to settle claims. The Crown considers that it administers the conservation estate on behalf of all New Zealanders and that the rights of the general public to use the conservation estate should not be affected as a result of Treaty settlements. It also believes that it has a responsibility to protect the natural and historic resources of the land".

Notably absent is any mention of Crown responsibility to maintain the public patrimony in these lands through continuing Crown ownership and control. The only 'property rights' the Crown will protect are the private property rights of third parties such as concessionaires. Public property rights don't get a mention. The 'potential interests' of concessionaires and the needs of sectorial interests such as the tourism industry "will be considered", but not that of the public who are the true owners of the land.

As noted earlier, unlike for natural resources and gifted lands, there are no Treaty-performance or breach-of-contract criteria that must be first satisfied to validate a claim, only loose criteria of suitability or importance for Maori. The proposals talk about 'discrete sites' where "special significance is demonstrated". There are other sites which have "special importance to Maori", for instance lake beds, river beds, and mountains. There are no measures of 'special significance' or 'special importance' and no limitation in area.

Government's privatisation agenda is revealed by a willingness to divest ownership or control over 'discrete parcels of land' "where the overall management will be maintained or enhanced as a result of use in claim settlement". Public ownership and control will be able to be divested to claimants for no other reason than their alleged ability to manage the area as well or better than DOC! The underlying assumption is that public ownership does not matter; that 'protection' can be ensured under private ownership or management. That is an assumption with which we strongly disagree (see also appendices 3 and 4 of this submission).

We believe that Government is on a 'private ownership ideological kick', placing reliance on convenants and paper safeguards rather than on public ownership and control as the best assurance that the public interest in these lands will be protected. Government might have learnt something from its limited experimentation with private ownership mechanisms such as at Mt. Hikurangi, on the East Cape but is Crown proposals indicate it has not. In 1991, 5000 hectares of conservation area were given away to Ngati Porou in a spirit of 'partnership', in the absence of a Treaty claim. However two and a half years ago there was a breach of the terms of vesting of ownership. Conservation Minister Denis Marshall is still involved in secret 'discussions' with the tribe to try to resolve this and other matters. The breached condition was for a "free right of public foot access to the mountain". It is apparent that, despite legal mechanisms being available to either enforce the conditions or require return of the land, there is not the political will to do so. The public interest in ensuring proper protection of the land and retaining public access has been lost as a consequence.

Government clearly sees the Mt. Hikurangi model as the way forward for divesting its responsibilities for the 30 per cent of New Zealand that is held in the public conservation estate.

In the proposals for settlement of Treaty claims the Government notes that the roles and responsibilities of the Crown and Maori must be explicit in any settlement involving the conservation estate, including legal accountability. However the Hikurangi agreement was as legally accountable as you can get; it was done by way of a court order. From this, and other experiences, it is apparent that such mechanisms are liable to fail as a matter of normality, due to lack of commitment from Government to uphold the public interest.

We believe it to be a further meaningless sop to public concerns, for Government to "acknowledge the value of carrying out consultation with the public and non-government organisations over settlements involving conservation land". In the proposals there are no commitments to consultation as "any special processes for this consultation will be developed on a case-by-case basis". Ad hocery, inconsistency, and lack of real standing for the public, being the consequence of current Government mishandling of claims involving public lands, are destined to continue under the Crown's latest proposals.

It is highly inconsistent of Government to commit itself to public consultation over natural resources, "if any change in the public's interest in a resource is contemplated", and not to do so over the public conservation estate.

Unlike most 'natural resources', the conservation estate is specially dedicated for public purposes and held in trust on the public's behalf by the Government. It has the highest order of public interest of any of the state assets proposed for claims settlement. It is incomprehensible, and inexcusable, that the public will not be fully consulted if any change in the public's interest is contemplated.

Detailed submission

The following are commentaries (ours in talics within brackets ), our recommended additions (bold) or deletions (bold italics ) to the wording of the 'Detailed Proposals' which is reproduced in part below. Our comments and recommendations flow on from our summary submission above.

'Detailed Proposals': Page 6
We believe that the basic principles developed by Government need some amendment--

• The Crown will explicitly acknowledge historical injustices breaches of the Treaty as proven before the Waitangi Tribunal.
• In resolving claims the Crown's actions shall be consistent with all the principles and terms of the Treaty and should not create further injustices (there is a tendency to selectively quote the treaty by ignoring other relevant parts, leading to further breaches of its terms--see Mason in 'The Independent' 8/9/95, ).
• The Crown has a duty to act in the best interests of all New Zealanders (we strongly support such a principle, Article 3 reinforces the consititutional fact that all citizens have equal status)
• As settlements are to be durable they must be fair, achievable and remove the sense of grievance.
• The resolution process must be consistent and equitable between claimant groups.
• Nothing in the settlements will remove, restrict or replace Maori rights and duties under Article Ill of the Treaty.
• The settlements will take into account fiscal and economic constraints, any special status of Crown assets, and the ability of the Crown to pay compensation.

Page 6-7
SETTLEMENT CRITERIA

The Crown proposes that:

• any settlement will focus on:

i. an acknowledgment of the legitimacy of the claimants' proven grievance;
ii. the return, where possible, of as many property rights in relation to specific sites or assets as considered fair to claimants and Crown, consistent with findings of fact on the claim;
iii. in those cases where the Crown accepts that it is not sufficient or there are no such property rights, the Crown may offer a sum of cash and assets to the claimants;

• in a settlement, properties of high cultural or spiritual significance (such as wahi tapu) will be the first transferred to the claimant groups; (any area can be of 'significance'; it is the degree of significance that should determine priority).
• maintaining existing provisions for public access and quality of stewardship are a necessary condition of settlements involving any change to 'common heritage' properties (eg, the conservation estate); (While the intent is fine, our experience of the mechanisms available and proposed (eg. covenants, vestings) leave little doubt that continued public ownership and control provides the best prospect for protection of the public interest. While on paper it is possible to devise 'adequate' safeguards, the reality, as demonstrated with Mt Hikurangi, is that there will never be the political will to enforce such mechanisms. In any event the Courts view imposed restraints as merely an interim stage to complete private ownership and control).
• before a settlement is negotiated the Crown must be satisfied that:

i. a prima facie case has been established proven before the Waitangi Tribunal; (the proposal that only a prima facie case has been established is at variance with the negotiations process (page 31 at 5.2.1 Step 1) which states that "the standard of historical verification should be the same as used by the Tribunal, not merely that there is a prima facie case")

ii. the appropriate claimant group has been identified;

iii. the claimant group has put in place an organisational structure that ensures accountability to the members of the group;

• the benefits of any settlement will as far as possible be enjoyed by all members of the claimant group;
• at the point of settlement there will be public and authoritative acknowledgment by the Crown and the claimants that the Crown has acted honourably and reasonably, that the historical grievances are resolved, and that the settlement is to their mutual satisfaction;
• any memorials under the State-Owned Enterprises Act 1986 or other restrictions placed on land and resources will be removed from the properties in the area that a claim settlement covers.

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2. TREATY CLAIMS AFFECTING THE CONSERVATION ESTATE

The Crown shares with many New Zealanders a firm commitment to the protection of the conservation estate. However, it believes that this protection need not conflict with the settlement of Treaty claims affecting conservation land. Accordingly, the Crown proposes a series of principles and criteria which will govern the settlement of these claims while preserving the conservation estate (this statement is a fallacy and represents a misunderstanding of the purposes of the so-called 'conservation' estate. The purposes of these public lands are not confined to 'protection' and 'preservation' as the statement implies. There are also public recreation and enjoyment purposes expressly provided for in the administering statutes. There is also the public patrimony of inherited community ownership of the resource, and 'ownership' of and say in management. The statement reflects a private property ideology that has permeated through all Government policy, whether it be public land, public health, or the national archives. In a reversal of Treasury demands for 'accountability' and 'transparency' for public bodies, it is assumed that public purposes can be (best) served by private individuals or bodies that have conflicting interests. The bottom line is that any change in managers will inevitably lead to changes in management. The public would be significantly excluded from management. Any accountability of the private party to the public will be unlikely. Under DOC management there are political remedies for breach of the trusts under which the land is held. These can be easily exercised by any citizen with sufficient knowledge and will. There are also strong public participation requirements in the development of management policies).

This section of the proposals is fatally flawed in that there is an underlying assumption that the 'conservation' estate must be available for 'settlement' of so-called 'claims, whether these are based on breaches of the Treaty or not. Unlike for natural resources there is no requirement that 'claims' must be well-founded. It appears that Government is using 'Treatyism' as a pretext for privatisation of the public estate.


KEY POINTS

• The Crown proposes the following principles to guide the development of settlements for claims affecting the conservation estate:

--the conservation estate is held by the Crown on behalf of all New Zealanders. However, the Crown may have to consider competing interests in fulfilling its obligations to the public under Article I of the Treaty; (there are always competing interests, especially from private interests seeking personal gain and from governments who look for expedient solutions to unrelated matters by compromising public assets. Article I creates a duty on the Crown to govern, but only in terms of the law. What other "obligations to the public" can there be that override the obligations established under the National Parks, Reserves, and Conservation Acts ecetera?)

--the existing legal protection provided to the natural and historic values of the conservation estate will not be diminished, except where there are beneficial conservation effects; (this statement is a contradiction in terms. How can protection "not be diminished" while being beneficial to conservation? It is more of the private management of the public interest ideology discussed above. It also raises the question--what is meant by 'conservation'? Is this the 'conservation' as defined by the Conservation Act or some other definition devised by farmers, miners, Maori or whoever?).

--a change in management of the estate will not be approved if it results in a loss of protection to the natural and historic values; (a change in management, if this deviaes from the statutory objectives for a particular public reservation, must result in loss of protection. Change to private 'managers', if this is what is intended by the statement, will have the same effect. The statement's narrow focus on "protection of natural and historic values" ignores the wider purposes of public lands).

--existing public access and recreation rights will not be reduced (except to protect the natural and historic values); (In our view the latter qualification is unnecessary and dangerous. The values of the land are already protected from public overuse or misuse by the legal status or classification of the reserve or conservation area. Different degrees of tolerance of recreational use is already specified under law for each area. A duplicating 'conservation' constraint on public recreation and access, tied to handing ownership or control of public lands to private (Maori) interests, could be loosely used as a pretext for unwarranted restrictions on public use and enjoyment).

--the existing property rights of third parties (lessees, administering bodies, etc) granted under conservation legislation will continue; (this, and the next statement, demonstrates Government hypocrisy. Existing private property interests will not be subject to confiscation or Maori control or management, only the public interest. As a mater of correction, an administering body such as a conservation or reserves board does not hold a property right--they are advisers or trustees respectively).

--the potential interests of existing concessionaires in future uses, and the needs of sectoral interests (eg, the tourism industry), will be considered (also see comment above. Why should these self-interests receive preferential consideration ahead of the public in retaining public lands in public ownerhip and control and having a say in their management?)

• Adopting these principles would mean that the conservation estate is not readily available for the settlement of Treaty claims and should be considered only in certain circumstances, as set out below (this statement is fine as far as it goes, however the circumstances envisaged below, and the relative unavailability of other Crown assets will have the opposite effect on the 'conservation' estate to that stated).
  
  
• The Crown proposes that the following areas of the conservation estate could be considered for vesting in claimants or for transferring management to claimants, if a claim over a particular conservation area is proven before the Waitangi Tribunal.

--discrete, small sites that are of such special historical, cultural or spiritual significance to Maori (eg, burial sites, sacred shrines, pa sites where special significance is demonstrated) that the Crown believes they are an essential part of a settlement; ('discrete' implies smallness, however its dictionary meaning is 'separate' or 'individually distinct'. There are no measures of 'special significance' or 'special importance'. We accept that the examples given are special, however these are cited as examples only--'areas of 'special significance' are not confined to these examples).

--other sites, with claims proven before the Waitangi Tribunal, which have special importance to Maori (eg, certain lake beds, river beds and mountains, and land required for access to pounamu); (The temptation for claimants will be to describe everything they want as 'special', presumably being "more special" than for every other New Zealander. There is no burden of proof required in this regard, and no requirement that the 'special' status derives from a proven breach of the Treaty. There must be a prerequisite requirement that a claim must be proven before the Waitangi Tribunal over the particular area).

Page 14

--discrete parcels of land where the overall management of conservation values will be maintained or enhanced as a result of their use in claim settlement. (There is no justification under the Treaty for this proposal. It opens the door to any private interest grabbing hold of public lands for no other reason than their alleged ability to manage the conservation. What interests will be next?, farmers? After all their leaders constantly claim that they are conservationists--but by who's definition?. This proposal must be struck out. The only possible basis for divesting control or ownership of parts of the conservation estate to Maori is a proven breach of the Treaty in regard to that particular area--that is after considering the availability or appropriateness of alternative state assets).

• There are three possible mechanisms for resolving proven grievances about these sites:

--transfer of ownership, with or without legal encumbrances attached to the title;

--revesting the land subject to conditions set under statute, with the capacity for returning the title to the Crown if the conditions are not complied with (fine in theory; political realities are quite different eg Mt Hikurangi).

--transfer of a significant management role in relation to the land, subject to ongoing Crown ownership and conditions set under statute (another theoretical solution; realities quite different--no political or bureaucratic will to enforce; no public involvement or accountability).

• The Crown proposes that transfer of ownership (with or without legal encumbrances) should be considered only for small discrete parcels of land of special significance to Maori (as outlined above),where there are proven breaches of the Treaty and alternative forms of settlement are unavailable, and where the alienation of the land from the Crown would not have adverse effects on the management of the conservation estate or place important conservation values at risk ('special significance' needs to be further defined).
• The Crown notes that the roles and responsibilities of the Crown and Maori must be explicit in any settlement, including consistent financial and legal accountability and authority. The Crown will also take into account the potential effects on the overall management of the conservation estate and potential ongoing costs (eg, of special management committees) (the latter point recognises that divesting responsibilities to a private entity does not necessarily remove Crown financial and administrative liabilities--If the Crown is serious about properly protecting the public interest in the land the cost may be significantly greater than for direct Crown management, due to monitoring, liaison, and enforcement costs).
  
  
• The Crown acknowledges the value of carrying out consultation with the public and non-government organisations over settlements involving conservation land. Any special processes for this consultation will be developed on a case-by-case basis. Consultation will occur on all proposals to use conservation estate and Crown lands in settlements. The process shall be--

(1) Crown formulates resource information paper for public release and comment.
Resources to be reviewed include--

• Treaty Issues

(a) The claim(s) lodged before the Waitangi Tribunal.
(b) The Tribunal's findings of fact on the claim.
(c) The Tribunal's recommendations if any.
(d) An explanation from the Crown why it accepts or doesn't accept the recommendations of the Tribunal and why the lands in question are proposed for settlement of a claim.
(e) An explanation why the use of other Crown assets is inappropriate for settlement of particular claims.

• Assessment of conservation values including geology, botanical, fauna, fisheries/aquatic, landscape, and heritage values.
• Assessment of recreation values.
• Maps showing boundaries and public rights of access to and through the area, including marginal strips, legal roads, rights of way etc.
• For Crown land, land use capability information including soil and water conservation values.
• Government policies on reclassification, retirement, surrender etc., that apply to high country Crown lands.
• For public conservation areas the current status, statutes, and particular provisions that specify protection and management requirements, and public rights of use.

(2) Crown to publish a paper with the main options available for settlement of the claim.
The options to range from--

(a) Allowing a future owner/occupier to have maximum freedom of land use to
(b) Retaining or allocating significant areas in public ownership/or with public constraints over use
--and all other options in between.

• Published for public submission.
• Public hearing of submissions.

(Steps one and two being the main opportunity for public comment and input).

(3) When negotiations between the Crown and the claimant have arrived at an "in principle" agreement, this to be published for public submission so that the Crown is assisted in arriving at the Crown's final negotiation position.

Implementation
Dependent on the status of the area, either the local Conservation Board or the Commissioner of Crown Lands would be the public-input facilitating agency on behalf of the Crown. Other agencies, e.g., DOC, Landcorp, Justice Department would be responsible for preparing the resource information.


Page 15

2.1 THE CONSERVATION ESTATE

• In managing the lands, the Department of Conservation must give effect to the principles of the Treaty of Waitangi (it is a matter of dispute that all the lands managed by DOC require giving effect to the principles of the Treaty, should be confined to those administerd under the Conservation Act).

2.2 CLAIMS TO THE CONSERVATION ESTATE

There are at least 48 claims which affect the conservation estate. These are generally made in the context of wider claims to land. They involve allegations that the circumstances of the Crown's acquisition were in breach of the principles of the Treaty of Waitangi. In many cases a particular block of conservation land is the subject of a specific claim. In some other cases conservation land is claimed because it is the only Crown-owned land remaining in a claim area or is claimed in substitution for other land which is no longer in Crown ownership (this is not a valid basis for using public lands in settlements).

Page 15-16

2.3 SETTLEMENT PRINCIPLES

Our earlier comments apply.
There must be equivalent provisions for establishing a 'well-founded grievance', as proposed for natural resources. It is highly inconsistent for the Crown to apply such a principle to one Crown resource and not to others. The absence of such a principle for the conservation estate will led to breaches of the terms of the Treaty, in particular the rights and duties of the Crown under Article I , and the Article II entitlement of the Crown to purchase and possess land, with the collollary obligation on sellers to honour such contracts.

Page 16

2.4 OPTIONS AND MECHANISMS FOR DELIVERING REDRESS

The consequence of adopting the principles above is that the conservation estate is not readily available for the settlement of Treaty claims and should be considered only in certain circumstances (we believe that this should be the case however the structure of the proposals will make the estate number one priority for use in settlements). The Crown proposes that the following areas of the conservation estate could be considered for vesting in claimants or for transferring management to claimants:

i Discrete sites that are of such special historical, cultural or spiritual significance to Maori (eg, burial sites, sacred shrines, pi sites where special significance is demonstrated) that the Crown believes they are an essential part of a settlement. These sites are in line with the Category A sites in the protection mechanisms for Maori interests in surplus Crown lands (our earlier comments apply)

ii Other sites which have special importance to Maori (eg, certain lake beds, river beds and mountains, and land required for access to pounamu). These sites are in line with the Category B sites in the protection mechanism for Maori interests in surplus Crown lands (our earlier comments apply)

iii Discrete parcels of land where the overall management of conservation values will be maintained or enhanced as a result of their use in claim settlement (our earlier comments apply)

There are three possible mechanisms for delivering redress to claimants:

• Vesting the ownership of the land in the claimants. The ownership could be legally encumbered to secure the Government's conservation and public access objectives, if appropriate. Otherwise there would be no government controls over the future management of the land except to the same extent as applies to other private land (eg, the controls under the Resource Management Act), and there would be no ability for the Crown to regain the title if it was dissatisfied with the management of the area (this option should not be considered unless there is a claim proven before the Waitangi Tribunal).

Page 17

• Revesting the land subject to conditions set under statute. This could be achieved through the vesting mechanism under the Reserves Act or through special legislation. The level of control by the Crown would be determined by the legislation or vesting instrument, and could vary from very strong Crown involvement in management (eg, approval of management plans, membership of management committees) to a relatively weak involvement with few conditions imposed. There would be an option for returning the title to the Crown if the conditions of vesting were not met (this option should not be considered unless there is a claim proven before the Waitangi Tribunal).
  
  
• Retaining Crown ownership of the land, but transferring a significant management role to iwi. Again this could be achieved through existing statutory mechanisms (eg, under the Reserves Act) or through special legislation, and the nature and extent of the transfer of powers could be tailored to the particular situation. It might be appropriate in some cases to restrict the transfer of powers to certain decisions about the land (eg, to decisions in relation to particular cultural resources), leaving other aspects of management with the Crown (this option should not be considered unless there is a claim proven before the Waitangi Tribunal).

The Crown proposes that vesting of ownership (with or without legal encumbrances) should be considered only for small discrete parcels of land of very special significance to Maori (as outlined in (i) above), and where the alienation of the land from the Crown would not have adverse effects on the overall management of the conservation estate or place important conservation values at risk. (our earlier comments apply)

In considering which mechanism to adopt, the Crown will take into account the need to make explicit the roles and responsibilities of the Crown and Maori in any settlement, including consistent financial and legal accountability and authority. The Crown will also weigh up the potential effects on the overall management of the conservation estate and the potential ongoing costs (eg, of special management committees) (our earlier comments apply)


Surplus conservation lands will continue to be available for use in claim settlements or may be protected prior to settlement through the protection mechanism for Maori interests in surplus Crown lands.


2.5 CONSULTATION WITH THE PUBLIC AND SPECIAL INTEREST GROUPS

In negotiating with Maori to settle Treaty claims, the Government (claims to) represent(s) the Crown and the public of New Zealand. It is aware that there is widespread public interest in the development of settlements for claims that may involve returning conservation land or a change in the management regime for conservation land.

The Government acknowledges (but the current proposals do not recognise) the value of consulting with the public and special interest groups about settlements which concern the conservation estate. At present, depending on the redress mechanism, the implementation of a Treaty settlement involving conservation land may will require a public process either under statute, by policy as for Crown lands, or during the passing of special legislation. Other consultation processes will be considered by the Government on a case-by-case basis.



Page 18

3. TREATY CLAIMS TO NATURAL RESOURCES

Managing natural resources is one of the most complicated areas of modern administration. To clarify the complexities involved in settling Treaty claims to natural resources, this chapter outlines the Crown's proposals on the types of interest claimants may have in a natural resource, on how to establish a well-founded grievance in relation to a natural resource, and on the forms and levels of redress available.


KEY POINTS

The Nature and Extent of Interests in Natural Resources

• There are four main types of interest in a natural resource:

-- Ownership Interest This means a person controls all uses and potential uses of a resource (subject to any contractual obligations, such as leases, and any overriding laws or regulations).

-- Use Interest. This means a person has certain defined uses of a resource but not all the potential uses.

-- Value Interest. This refers to a spiritual or cultural interest in a resource even if it is owned or controlled by someone else.

-- Regulatory Interest. This refers to the management and control of a resource for the common good.

• The Crown proposes:

-- that Article II interests in natural resources are use and value interests and, therefore, it does not intend to negotiate Treaty claims based on Maori ownership interests in natural resources; (we strongly support this position as it properly reflcts the terms of the Treaty)

-- to negotiate Treaty claims based on an acceptance of use and value interests in natural resources, where they can be shown to derive from uses and values in 1840, with allowance for the development of those uses and values as contemplated in 1840; except where sales deeds made express provision for transfer of ownership and implicit transfer of use of those resources.

-- that the fair sale of land extinguishes any use interests in resources connected with the land, unless they were clearly understood to have been reserved from sale; (we strongly support this position)

-- that regulatory interests in resources are not Article ll interests, in view of the Crown's sole right to regulate for the common good under Article I of the Treaty (although Article ll interests must be adequately considered in the exercise of any regulatory powers) (we strongly support this position as a fair reflection of the terms of the Treaty)

Page 19

Establishing a well-founded grievance
(we strongly support the following provisions as a fair reflection of the terms of the Treaty, however the 'founding' of the grievance must be by the independent Waitangi Tribunal, not by the claimant or the alleged offender--the Crown. )

• The Crown proposes that its exercise of Article I powers be considered reasonable unless there is strong evidence to the contrary. A well-founded Treaty grievance may exist, therefore, if claimants can demonstrate before the Waitangi Tribunal deprival of a use or value interest existing in 1840, and the Crown accepts that it:

-- broke a contract; or

-- confiscated the resource unjustly, eg, as part of a land confiscation; or

-- could have achieved its purpose by a reasonably practicable alternative that was known at the time, and would have had a substantially reduced impact on the use and value interests; or

-- deliberately extinguished the use interest without compensation and kept it for itself or gave it to another party (unless there were factors which justified the lack of compensation); or

-- allowed the private sector to use or affect a resource without reasonable justification, resulting in a significant use interest being substantially run down

Forms and level of redress

• The Crown proposes that the following principles will guide the form and level of redress of a settlement of a Treaty grievance:

-- for redress to be affordable, the Crown will not take a 'damages' approach based on quantifying the loss of enjoyment of use, economic value, or development opportunities;

-- as far as is practicable, redress will be formulated as a package to address the overall grievance, and the Crown will take all reasonable steps to alleviate many impacts on future use and value interests (without interfering with existing private use rights);

-- in determining redress, the level and severity of the Treaty grievance will be compared with other known Treaty grievances and levels of redress.

• The Crown has a duty to act in the best interests of all New Zealanders. Therefore, when negotiating settlements about natural resources it will need to consider:

-- the protection of conservation, heritage, spiritual, and cultural values;

-- the risks of disruption to essential services to the community, at least until alternatives can be provided;

-- general laws and regulations covering environmental effects and natural or other monopolies.

• Where a well-founded grievance has been established, the redress available may include reinstatement of use and value interests, and the allocation of property rights in natural resources. There may, however, be a number of constraints on such property rights.

Page 20

• Any change in public interests in a resource, or the basis of the Crown's protection of public interests, will be subject to appropriate public consultation.
  
  
• The Crown will protect existing private interests, including any limited term resource consents and permissions, when considering a natural resource as part of a settlement.
  
  
• Initiatives to increase the level of involvement of Maori on regulatory bodies may be considered as a form of redress for Article ll grievances.

3.1 INTRODUCTION

The Crown is proposing a formal position on natural resource claims, in order to:

• assure claimants that the Crown will base its decision making on fair, rational, Treaty relevant criteria, so that claimants will know what types of claim are likely to be accepted; (such criteria must also apply to other Crown assets)
  
  
• assure the general public that the social and economic integrity of the country, and the common interest in its natural resources, will be maintained.

Many of the major land claims include reference to natural resources. Accordingly, an agreed approach is needed to allow comprehensive settlements for well-founded claims. Natural resources subject to Treaty claims include water, geothermal energy, river and lake beds, foreshore and seabed, sand and shingle, and minerals including gold, coal, gas and petroleum. Grievances may relate to:

• ·the statutory vesting of natural resources in the Crown, with a sense that resources have been unfairly taken from Maori;
  
  
• the loss of management control of natural resources;
  
  
• actions or omissions by the Crown that have negatively affected the use of the resource by Maori;
  
  
• loss of resources associated with land that is also under claim.

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3.2 THE NATURE AND EXTENT OF INTERESTS IN NATURAL RESOURCES
(our earlier comments under 'key points' apply)

In considering a claim to a natural resource, the Crown and claimants Waitangi Tribunal must first establish whether the claimants have an interest in the resource under Article II of the Treaty.

There are four main types of interest in a natural resource:

• Ownership Interest. This refers to the exclusive possession of all potential uses of the resource, within any regulatory or contractual limits. It is equivalent to a fee simple interest in land.
• Use Interest. In contrast, this interest is characterised by defined limits, and there is no claim to potential uses except those inherent in the current use. A use interest in fishing in a river encompasses the use of new fishing techniques, and possibly rights to commercially profit from fishing, but not rights to the hydro, electric potential in the river.
• Value Interest. This concerns a cultural or spiritual value held in a resource regardless of who happens to own or control the resource or who uses it.
• Regulatory Interest. This refers to the making of laws and other decisions about the use of a resource for the common good.

In New Zealand a number of natural resources do not have clearly defined property rights and ownership interests are therefore not well developed. The Crown holds ownership of many natural resources (although some are privately owned or owned by local authorities). Resource consents under the Resource Management Act 1991 provide for the use and development of natural resources.

The Crown considers that Article I of the Treaty gives it the right, where necessary, to own or regulate natural resources in the interests of all New Zealanders. This right to act for the common good may, in a wide range of circumstances, allow the Crown to override Article II interests. Nevertheless, the Crown should take Article II interests into account when it exercises its powers (this is a fair relection of the content of the Treaty)

The Crown proposes that Treaty claims about natural resources should focus on their uses and cultural and spiritual values. It does not consider that Article II guaranteed to Maori the ownership of natural resources in 1840 (we agree). The Courts have found that Treaty interests in a resource do not include uses of a resource outside those contemplated at the time of the Treaty. By implication, therefore, the Courts have not recognised an Article ll ownership interest in natural resources.

3.2.1 Use and Value Interests
The Crown does accept, however, that use and value interests in natural resources are guaranteed under Article ll of the Treaty. The question is how to determine the extent of such interests. The Crown proposes two tests:


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Test I: Known in 1840. The Crown will recognise a value or use interest in a natural resource where claimants can show that the resource was used or valued in 1840. Furthermore, the Crown accepts that Maori have interests in developments of those uses or values which could have reasonably been contemplated in 1840. It is the Crown's view that resources which were substantially unknown or unused at 1840, and developments of those uses, are the heritage of all New Zealanders.

This 1840 base line is consistent with the general theory of customary use rights. Also, it seems logical that, to be guaranteed under the Treaty, a taonga should be known in 1840.

The Court of Appeal endorsed this view in the Ika Whenua case. It stated:

But, however liberally Maori customary title and Treaty rights may be construed, one cannot think that they were ever conceived as including the right to generate electricity by harnessing water power. Such a suggestion would have been far outside the contemplation of the Maori chiefs and Governor Hobson in 1840.

Test II: Effect of Sales. The Crown will not accept use and value interests in natural resources that have been sold by Maori voluntarily and fairly. If land has been sold voluntarily and fairly, the Crown will not recognise any use interest in the natural resources associated with that land unless those interests were clearly understood to have been reserved from sale. (We support such a view--many land sale deeds were explicit that resources appurtenant to land and water were sold to the Crown)

3.2.2 Regulatory Interests
The Crown does not accept that Maori can claim a right to manage and regulate a resource for the common good under Article II of the Treaty. The Crown holds the right to make laws for the management of natural resources under Article I of the Treaty (although Article II interests must be adequately considered in the exercise of any regulatory powers). Claims which arise from damage resulting from the Crown's decisions as the regulator should be dealt with as claims to use and value interests. (Same principles must apply to other Crown assets, especially the conservation estate).


3.3 ESTABLISHING A WELL-FOUNDED GRIEVANCE
(we support these provisions, except that the Waitangi Tribunal should decide, rather than the Crown or claimants, whether the Crown's actions unreasonably interfered with Maori rights under Article II)
In deciding whether a claim to natural resources is well-founded, the Crown Waitangi Tribunal will need to consider whether its the Crown's actions under Article I of the Treaty unreasonably interfered with the rights of Maori guaranteed by Article II of the Treaty.

New Zealand law and administrative practice provide some guidelines for deciding the balance. They suggest that the Crown may legitimately set rules, and undertake programmes, that negatively affect use and value interests. However, the Crown's power is subject to;

• the need to consider all the interests affected, including Treaty interests, and balance them in the common good;
• reasonable attempts to mitigate the negative effects, including providing transitional arrangements, if the impact is large.

Page 23

The Crown accepts that some of its actions under Article I may have been unreasonable, where:

• the Crown broke a contract;
• the Crown confiscated a resource wrongfully, eg, as part of a land confiscation;
• the Crown was aware at the time that there were reasonably practicable alternatives to its actions that would have interfered with Maori rights under the Treaty to a substantially lesser degree. The assessment of what was 'reasonably practicable' will have to take into account the cost of the alternatives, their effects on the wider community and the state of technical knowledge, at the time;
• the Crown extinguished an Article ll use interest without compensation and with deliberate intent, and kept the interest to itself or gave it to another party (except where there was good reason for compensation not being paid);
• the Crown unreasonably allowed a significant use interest to be run down by other users of the resource for private benefit. 'Significant' will be determined on a case by case basis with reference to the resource's value at 1840, its link to the mana of the claimants, its substitutability, and any changes in the interest since 1840.

In each case the claimants must be able to provide compelling historical evidence showing that the Crown's action in overriding their interests for the common good was unreasonable.


3.4 FORMS AND LEVEL OF REDRESS

In redressing claims the Crown will take into account:

• the requirements of justice and equity;
• the best interests of all New Zealanders;
• what is affordable;
• relativities between claims (ie, the relative severity of the grievance in relation to other claims).

Accordingly, the Crown does not propose to redress claims by trying to quantify lost enjoyment of use, lost economic value or lost development opportunities. Redress should be considered as a package to cover an overall grievance, without the need to precisely match every part of a claim with a specific element of redress.

These principles will also apply to the redress of all historical claims.

3.4.1 Transferring Property Rights as Redress
In redressing grievances the Crown will seek to reduce any negative impacts on Treaty use and value interests. This may involve transferring property rights to claimants if the property rights protect those use and value interests or are substitutable for them. However, many assets will not be readily available because of the passage of time and the other public and private interests now associated with the resource (this latter consideration must also apply to the public 'conservation' estate)


Page 24

In considering whether property rights should be transferred as part of a settlement of a claim, and only if the Waitangi Tribunal finds in favour of a claimant, the Crown will take into account:

• the protection of conservation, heritage, spiritual, or cultural values;
• the risks of disrupting essential services to the community, at least until alternatives can be provided;
• general laws and regulations covering environmental effects and natural and other monopolies.

The Crown may have to will consider imposing constraints on the property rights transferred to claimants, including:

• defined and enforceable duties of care to the public interest (as in a conservation covenant or as an interest held under section 7(2) Conservation Act; (these are more secure than covenants)
• provisions to protect public access as an interest held under section 7(2) Conservation Act, or existing private users;
• retaining Crown property rights in aspects of the resource, eg, mineral extraction rights;
• requirements for an independent authority to approve specified uses of the resource (in addition to existing regulatory constraints).

Any change in public interests in a resource, or the basis of the Crown's protection of public interests, will be subject to appropriate public consultation. (Support, but must also apply to public 'conservation' estate). The Crown will protect any existing private interests in the resource, including any limited, term consents and permissions. (Why is there preferential protection of private interests ahead of public interests?)

3.4.2 Other Forms of Redress
The Crown may also consider redressing claims in the following ways:

• reinstating use and value interests associated with the resource under claim. This could include the right to use certain resources for traditional purposes, and special mechanisms to ensure that Maori values are taken into account in administering the resource;
• increased representation for Maori on regulatory bodies.

Pages 25-28

4. TREATY CLAIMS TO LAND GIFTED TO THE CROWN
(We support these proposals, noting that a series of tests will apply to establishing well-founded claims: "a claim must be shown to be well-founded before settlement options can be considered". It is illogical and highly inconsistent for those same tests and requirements not to apply to the public 'conservation' estate. We note that there will be public consultation if there will be any change in public interests; inconsistent not to also apply to the public 'conservation' estate).


Page 29

5. THE NEGOTIATIONS PROCESS


This chapter outlines the Crown's proposals for a new process for negotiations between the Crown and claimants over Treaty claims.


KEY POINTS


The Crown proposes four main stages in the negotiations process:

• acceptance onto a Negotiations Work Programme;
• negotiating redress for the breach, leading to a draft Deed of Settlement;
• ratification of settlement by the Crown and claimants, leading to the signing of a Deed of Settlement;
• implementation of settlement.

The Crown proposes that acceptance onto the Negotiations Work Programme will require the Crown to:

• accept that the historical basis for the claim has been determined;
• agree to a Crown position on the nature and extent of each of the alleged breaches;
• accept that the correct claimant grouping has been identified for the claim;
• accept that the claimant negotiators have been properly mandated by the claimant group;
• agree that the claim has sufficient priority to be included on the Negotiations Work Programme, in terms of the Government's overall settlement strategy, given resource and financial constraints.

The Crown proposes that acceptance onto the Negotiations Work Programme will also be conditional upon the claimants:

• agreeing to negotiate a final settlement covering all of their claims unless the Crown makes an explicit exception;
• agreeing to negotiate knowing that the Crown's offer of redress will be based on the Crown's stated position on the nature and extent of the breach, despite the fact that the claim may include alleged breaches that are wider in nature and extent than those acknowledged by the Crown;
• agreeing to waive all other avenues of redress that may be available to them while in negotiations;
• acknowledging that a Crown condition of settlement will be the lifting of all memorials in the area, and other requirements to ensure finality.

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The Crown proposes that the claimants' agreement to these conditions will be signified in a written record, to be subsequently referred to as the 'Terms of Negotiation'.

The Crown proposes that, after 'without-prejudice' discussions with the claimants, it will develop a Crown negotiating brief for the claim before negotiations commence. The brief will establish the Crown's negotiating structure and specify procedures for consulting with third parties where they may be affected by a proposed settlement. ,

If Crown and claimants reach agreement, the Crown proposes that the claimants. will ratify a draft Deed of Settlement and endorse proposals on how the benefits of settlement will be distributed and the resources managed. A final Deed of Settlement will not be signed, and therefore not be binding, until it has been ratified by both parties.


5.1 CURRENT NEGOTIATIONS PROCESS

The current negotiations process between the Crown and Treaty claimants dates back to 1990 and the booklet The Direct Negotiations of Maori Claims. This identified four stages in negotiating a claim:

• acceptance onto a negotiations register;
• negotiation of a framework agreement;
• negotiation of an agreement in principle;
• finalisation of a detailed agreement.

In the light of experience since then, the Crown is proposing that this negotiations process be revised. The proposed process places greater emphasis on the work that needs to be done, and the requirements that must be met, before a claim can be accepted for negotiation. On the other hand, once negotiations begin, work can proceed directly towards a draft Deed of Settlement without the need for intermediate steps.


5.2 REVISED STAGES OF NEGOTIATION PROCESS

The Crown proposes the following new stages for the negotiations process:

• acceptance of a claim onto the Negotiations Work Programme;
• negotiating redress for the breach leading to a draft Deed of Settlement;
• ratification of the draft Deed of Settlement by Crown and claimants, leading to the signing of the Deed of Settlement (and including passage of legislation where required);
• implementation of the settlement.

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5.2.1 Acceptance on to the Negotiations Work Programme

Step 1: Verification of the historical basis to the claim. This step will involve exploratory discussions between the Office of Treaty Settlements and claimants on a 'without, prejudice' basis to identify the nature of their claims. Claimants will approach this step either when they have been through the Waitangi Tribunal, or direct (if there is adequate research to support their claim).

When claimants approach the Crown direct, the Crown may require more research before it is in a position to accept the claim as well-founded. The standard of historical verification should be the same as used by the Tribunal, not merely that there is a prima facie case. If the claimants have been through the Tribunal, this step will involve the Crown forming a view on the Tribunal's findings about how well-founded the claim is.
(This proposal should be amended so that verification of a claimant's case is required before the Waitangi Tribunal before negotiations commence).

Step 2: Crown develops a position on the nature and extent of the breach. At this point the Crown applies its generic policies to the specific claim and develops a position on the nature and extent of each of the alleged breaches. During this time the claimants need to: (we support this step)

• establish that they are the correct claimant group for the area of the claim;
• mandate their negotiator(s).

Requirements on the Crown and Claimants. The Crown proposes that acceptance onto the Negotiations Work Programme will require the Crown to:

• accept that the claims are historically verifiable; (we support this step)
• agree to a Crown position on the nature and extent of each of the alleged breaches; (we support this step)
• accept that the correct claimant group has been identified for the area of the claim;
• accept that the claimant negotiators have been properly mandated by the claimant group;
• agree that the claim has sufficient priority, in terms of the Government's overall settlement strategy, to be included on the Negotiations Work Programme, given resource and financial constraints.

The Crown proposes that acceptance onto the Negotiations Work Programme will also be conditional upon the Claimants:

• agreeing to negotiate a final settlement covering all of their claims, unless the Crown agrees to make an explicit exception;
• agreeing to negotiate knowing that the Crown's offer of redress will be based on the Crown's position on the nature and extent of the breach, despite the fact that the claim may include alleged breaches that are wider in nature and extent than those acknowledged by the Crown;
• agreeing to waive all other avenues of redress that may be available to them while in negotiations;
• acknowledging that a Crown condition of settlement will be the lifting of all memorials in the area that the settlement covers, and other requirements to ensure finality.

The Crown will need an agreed position on the nature and extent of the claim before this is formally presented to the claimants. The Crown proposes that the claimants' agreement

Page 32
to the above conditions should be signified in a written record, to be subsequently referred to as the 'Terms of Negotiation'.

Acceptance onto the Negotiations Work Programme is a significant step. It is a formal acknowledgment by the Crown of the nature and significance of the breach and signals a readiness and preparedness by the claimants and the Crown to focus on negotiating redress.

5.2.2 Negotiating Redress

Step 1: Preparation of a Crown negotiating brief. The Crown will develop a negotiating brief based on its position on the nature and extent of the breach. To develop the brief the Office of Treaty Settlements will need to have exploratory discussions on a 'without' prejudice' basis with the claimants on the redress they are seeking.

The brief will describe the Crown's negotiating structure and procedures for consulting third parties where they may be affected by proposed options for redress. The procedures may require that certain consultations take place with third parties and the wider public, and further information obtained, before aspects of the brief are finalised.

Step 2: Negotiations with claimants. Once the brief has been developed, negotiations will commence with the claimant negotiators. The Crown side will be led by the Minister in Charge of Treaty of Waitangi Negotiations, or a senior official, or an appointed Crown negotiator.

Because the Crown wishes to strengthen its negotiating capability, it is proposing that it may engage Crown negotiators to represent it in negotiations. The standing and skills of these negotiators will reflect the significance placed by the Crown on the settlement of Treaty grievances.

5.2.3 Draft Deed of Settlement

There will be separate Crown and claimant processes for ratifying the draft Deed of Settlement. Only when both parties have ratified the draft settlement can it be signed. Crown ratification will involve acceptance by the Government of the draft Deed of Settlement. The Government will need to feel sure that there is broad political support for the settlement, which may involve approval by Parliament. This will depend in part on whether a settlement requires legislation to be implemented.

Claimants will have their own processes for ratifying draft Deed of Settlement. However, at the end of this step the Crown will need to be assured that due process has occurred and that there is a sufficient level of support among the claimant group for the settlement to be durable. The Crown considers that the whole area of assessing claimant mandates for ratification requires further work and is, therefore, part of this consultation process with Maori. The Crown proposes that the draft Deed of Settlement will refer to the proposed systems for the distribution and management of settlement resources. Claimants would need to endorse this aspect of the settlement as well.

5.2.4 Implementation
This final step involves implementing the Deed of Settlement, for example, the transfer of a particular piece of land or payment of cash, and the Crown's requirements for finality, for example, the lifting of memorials.


Pages 33-39

6. CLAIMANT REPRESENTATION AND THE NEGOTIATIONS PROCESS
(We agree that claimants should be properly mandated, however the Crown is notably silence on ensuring that it is properly mandated, both in terms of ensuring well-founded claims and in public consultation, when dealing with public 'conservation' estate. This must be rectified).

Lack of process for SOE assets

(The lack of express provision for using SOE assets for claims settlement is a major omission from the Crown proposals. There must be a detailed process included in the proposals, otherwise these major crown assets will "drop off the agenda", placing far greater pressure on the public conservation estate and natural resources. We are aware that that SOE assets were used in the Tainui settlement and conservation lands spared. We welcome this approach, however note that if this is the Government's actual policy, it is not reflected in its Proposals. Government may argue that it is its intention to continue to use SOE assets in settlements, however without express provision for this in the Proposals it is highly likely that they will be 'overlooked' in favour of specified Crown assets. As the Government has no particular attachment to SOE assets is currently preparing to sell these, they must be on 'first call' for use in settlements, ahead of any public lands or resources with a 'public interest element").


Yours faithfully




Bruce Mason
Researcher and Trustee



Appendices
1. Being fair-minded while avoiding the global guilt trap. 'The Independent', 8/9/95

2. Conservation land must not be used to settle Waitangi claims. 'The Press', 1/9/95.

3. Private management of the public interest? PANZ Monograph No. 7. Discussion of adequacy of covenants etc.

4. The Origins of Crown lands, and, Why is public ownership necessary? Extract from 'Public Access', No. 1 September 1992.

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Public Access New Zealand, P.O.Box 17, Dunedin, New Zealand

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