Pathway to Negotiations

The comments have been reproduced with the kind permission of the Crown Forestry Rental Trust who interviewed Esther for their research book, Maori Experiences of the Direct Negotiations Process – a project that captured the views and experiences of five Maori negotiators who have participated in the direct negotiations process with Crown agencies.

Current Settlement Process

Here Esther talks about current Crown policy on negotiating settlements with Mäori, and how the direct negotiations process could be improved.

Esther Gray of Te Uri o Hau believed the Crown’s policies guiding the direct negotiations process favoured the Crown. She did not think the negotiations were conducted on a level playing field: I think its level in the sense that if you played a hand of poker, whoever had all the cards won the game. Sometimes Te Uri o Hau did not have all the cards. Most of the time Te Uri o Hau had the cards that were dished out to them under policy.

Esther believed that settlement negotiations were not really negotiations in the sense of equal parties meeting to finalise a settlement. Her personal opinion was that the Crown had predetermined the amount of settlement redress Te Uri o Hau would receive before negotiations even began:

“In reality, let’s say, my husband runs an oyster farm, provides spat for Sanfords, when we negotiate finance, we negotiate what does Sanfords want, what do we want out of the deal, this is our terms, and then that’s negotiation.

“Basically, what these negotiations … I think the Crown has always had a set settlement cost for every claim in New Zealand and a set cultural redress package. So that tells you that the Crown knows but Te Uri o Hau don’t know.”

Esther was saddened by the amount of division she witnessed amongst her people during the direct negotiation stage, something she believed originated in land loss facilitated by the Native Land Court. In addition to this, she was alarmed by the apparent lack of knowledge about the settlement process on the part of some politicians during the Mäori Affairs Select Committee consideration of the Te Uri o Hau Settlement Bill. Esther was concerned that the Treaty of Waitangi Act allowed for any individual to lodge a claim, something that she believed had the potential to slow down the hearings process and delay settlement at the direct negotiations stage:

“… The Treaty of Waitangi Amendment says clearly that individual whanau, hapu, iwi can lodge a claim. It really fragments us when we, if we take the Select Committee, we went down to the Select Committee hui, we had Te Uri o Hau sitting here, you had the Select Committee, Mäori Select Committee sitting there, all, most of them were Mäori MPs there was only two which was ACT leader, Prebble and Douglas Kidd. Those were the only two other, that weren’t Mäori. Te Uri o Hau were sitting here, counter-claimants were sitting out the back, our own whanau out the back and our own whanau in the front. The Crown were asking questions like, way over the top, Select Committee members asking us about, why did we settle on such a small settlement. Could we have made that settlement go higher? Why didn’t we do settlements for whanau, include whanau? Now they all come to that Select Committee under political party and under party policies, now, you know, the reality is I thought they never even read their bloody party policies! Why ask the claimants, the other Treaty partner, why didn’t you go for more, why didn’t you add that ratchet clause, when these politicians should know this, know that, and of course they were actually playing the part of our whanau … I thought it was very ugly. I thought you know, it really made me think we as Mäori have become so fragmented and Europeancolonialised that we kill ourselves … the objectives were behind the politicians basically, so not only was Te Uri o Hau trying to say this was the best deal we could get under present policy … to the Crown, who were telling us we should have changed it, but also to our own family members. And that sucks. I thought that was a real grotty process. If anything it depletes our mana as Te Uri o Hau and as Mäori. And most of the people objecting were our age group.”

Mandate

This part of the extract examines Esther’s view on the mandating process. Mandating is one of the most important parts of the direct negotiation process because it gives a negotiating team authority to make decisions for a claimant group concerning the settlement negotiations.

Once the Crown is satisfied that a particular group has proved it has the necessary level of support to negotiate the claim on behalf of its members, it may officially recognise the claimant group’s mandate to proceed and negotiations can begin.

After completing Waitangi Tribunal hearings Te Uri o Hau turned its attention to the direct negotiation process. Throughout the Tribunal process, a number of Te Uri o Hau groups and individuals had lodged claims. Esther Gray explained that when Te Uri o Hau approached the Office of Treaty Settlements to negotiate they discovered that the Crown would not negotiate with two Te Uri o Hau groups:

“The first thing we had to do was, we had two groups in Te Uri o Hau, Otamatea and Pouto, so the first thing we had to do was combine those groups before the Crown would even look at us. At that time Otamatea was under a charitable Trust status, Pouto were under a Ture Whenua Mäori Land Trust. And that’s when we went into Te Uri o Hau Limited Liability Company to bring both groups together. It was the cheapest process.

“Te Uri o Hau representatives complied with the Office of Treaty Settlements processes and procedures and sought a mandate to negotiate from nga marae o Te Uri o Hau.”

Esther explained that the process of securing a mandate from the people and having this acknowledged by the Crown entailed a lot of hard work. Esther thought that the Office of Treaty Settlements gave Te Uri o Hau a broad outline of what a mandate would require but this did not necessarily explain all the details:

“… The mandate was a bit of a headache because you have to design the mandate, the Deed of Mandate to have all these legal requirements but also explain it to the kaumätua and kuia which was very difficult. You know there’s tikanga but there’s also law, which is very difficult.

“There’s quite a bit of criteria that’s attached to the mandate that is not in the little red book, the little black book, I’m not too sure on the green book. After preparing their Deed of Mandate, Te Uri o Hau Company Ltd lodged it with the Office of Treaty Settlements to demonstrate they had the support of their people to enter into negotiations. The Office of Treaty Settlements advertised this in local and national newspapers and sought views and comments from interested parties.”
Seeking the mandate was not without its problems. Esther noted that internal friction within Te Uri o Hau meant that a number of individuals objected to their mandate:

“There’s always friction. So when the mandate was advertised we had something like, I think it was roughly 20 to 30 submissions against it.”

Esther explained that Te Uri o Hau did attempt to resolve the issues that objectors had raised, but this proved to have its own problems:

“You can only resolve an objection if you sit down and talk. Not many of them came to sit and talk at the marae.”

After receiving the submissions on the mandate of Te Uri o Hau, the Office of Treaty Settlements was in a better position to assess whether it should accept their mandate. Te Puni Kökiri assisted the Office of Treaty Settlements in this task by providing independent advice:

“… Based on the TPK report they decided to go into negotiations, remembering at that time too that Muriwhenua was in, then out, then in, then out, and so was Te Roroa.”

Following the mandate assessment process, the Crown formally acknowledged the Te Uri o Hau mandate in 1999. Esther explained the role of Te Puni Kökiri in the process:

“What TPK had to look at was the other claimants involved in the district, how it would affect it if Te Uri o Hau had the support and the right I suppose, instead of using the word mana, the right to take the claim through the negotiations.”

Structures and Skills

Esther talks about how the various groups organised themselves to tackle the task of negotiating with the Crown and offers personal insights into some of the skills and qualities needed to form an effective negotiating team.

Te Uri o Hau used an identical structure to that used by the Taranaki Claim Progression team, with similar lines of accountability and communication. The Te Uri o Hau negotiating team ultimately reported to Te Uri o Hau Company, a limited liability company formed to negotiate on behalf of Te Uri o Hau:

“We had the ‘A’ team and the B and C team. Now the A team negotiated directly with the Ministers. The B and C team were with the Office of Treaty Settlements (OTS) and all the other officials. So if I could put the A team in the governance part, the governance heading, the B and C team are the management. That would break it down so it would give you work content.”

Esther thought that the structure worked well for Te Uri o Hau. She also explained what she thought to be the key ingredients for a successful negotiations team:

“I think it’s understanding first the dynamics of the A team and the B and C team. Now that’s the personality dynamics. And learning, especially for the B and C teams, learning to concede. That’s quite a hard one. You can only put forward recommendations to the A team. The A team can still make the final decision.”

As with Te Atiawa, the Te Uri o Hau B and C teams would go back to the A team and take the deal as it had been negotiated. The A team would give the sign-off if it was deemed to be acceptable:

“Yeah, like cultural redress. We concentrated on cultural redress, that includes mana-enhancing tools that the Crown [indistinct] which is statutory acknowledgements and protocols.”

Funding and Resources

Funding for the process is an important issue for negotiations because Crown policy is to make what it considers to be a ‘reasonable contribution’ towards certain expenses for mandated groups. This means that the Crown does not cover all of the claimants’ expenses and expects claimants to cover some of their own costs.

Esther Gray highlighted a particular difficulty experienced by Te Uri o Hau in regard to the milestone based funding system adopted by the Crown:

“It was stop start and then we had to restructure our funding but for this here, for Otamatea we went on no salary for eight months until we could get funding to go carry us through, at that time the Otamatea Mäori Trust Board helped us to carry on but we had to cut right back down to two staff, one on part-time, one full-time.

“So you couldn’t get travel expenses, you couldn’t get telephone expenses you know. I think that the system really needs to look at that if you’re going to go to the heartlands of Mäoridom to … to ask them to research their claim and go into direct negotiations then you must be prepared to maintain a structure to keep that going.”

Esther noted that although the Crown insisted upon a rigorous auditing process for Te Uri o Hau to demonstrate how its funding was applied, Te Uri o Hau was given no indication of the resources the Crown applied to its own work:

“The other thing that you know, with utmost good faith is the Crown know how much we spent on negotiations, Te Uri o Hau however, don’t know how much the Crown spent.
It would be nice that there would be a balance you know? If we only had 500,000, the Crown should only have 500,000.”

Esther noted that the Crown could apply significantly more resources to the process than Te Uri o Hau:

“Sometimes we walked into a team of fifteen. We only had three. So we had questions just firing at you and at times we had to split our three-man team up so the work was running backwards and forwards between me and Will.

“It all boils down to the resources, whether they be human or monetary to Mäori. That’s what it comes down to.”

Esther believed that Te Uri o Hau could have completed their settlement a lot quicker had they been better resourced, but doubted whether extra funding would have necessarily enabled them to achieve a larger settlement quantum due to the Crown’s underlying policy of classifying claims on the nature of the Treaty breach:

“I think for you to get a better settlement you would first need to change that assessment criteria that the Crown use for settlement. Raupatu, old land claims, Native Land Court. The raupatu we tried to argue was that if anything, confiscation, raupatu, taking the land, actually made the Mäori come together, made the tribes stick, consolidate like a fighting community.

“The Native Land Court actually separated us, it started to fragment us at the very foundation of Mäoridom, which is whanau, by consolidating the title into one person and that’s what really, that really fragmented and that put suspicion from whanau to whanau, hapu to hapu, marae to marae. That would be a good example of fragmentation of Mäori.”

The Negotiating Environment

Here Esther talks about how the negotiators perceived the negotiating environment and some of the activities and processes in which they were involved.

The majority of Te Uri o Hau’s settlement negotiations took place in Wellington at OTS offices. This required a large amount of travel on the part of Te Uri o Hau’s negotiating team:

“The only time it came to Whangarei was when the A team was dealing. But the B and C team had to travel. It was quite a long process, I tell you, it wears you out.”

Esther Gray explained that this impacted on her personal time to a large degree:

“My husband actually said one day that he’d slap a Wai number on himself so he could actually visit me. And this was at one of our hui. So it was often.”

Esther noted that the large amount of travel and the demanding nature of the actual settlement negotiations were extremely taxing:

“It is, the reality is that all these people here, most of them are kuia and kaumätua, if we were if they were to be the B and C team it would have just drained them so a lot of the claimants need to understand the workings of it. They need to have some young people in there and train them instead of themselves.

“We lost quite a few during that process a lot of the old people died.”

The Te Uri o Hau negotiators were bound by strict terms of confidentiality. This meant that neither Te Uri o Hau nor the Crown, was allowed to divulge what was being negotiated. Esther explained that the matter of confidentiality sometimes created difficulties for the Te Uri o Hau negotiators:

“Well it’s mainly … the Crown do have an insistence on … what is it called? Prepared without prejudice or something and there’s always confidentiality on it while we are in negotiations so you can’t release too much information and it was very difficult to keep our people updated especially my generation who, they jump pretty high, you know.

“We could let the A team know, the mandated representatives, but to send it out in a newsletter, we didn’t, we couldn’t, we had signed that agreement. Which is called the terms of negotiations.”

Esther felt somewhat frustrated by the confidentiality clause, which restricted the ability of the negotiators to communicate their activities to the wider membership of Te Uri o Hau. She believed the confidentiality clause created problems for Te Uri o Hau further into the settlement process, in the form of opposition to the settlement at the Select Committee stage:
“It did, created a lot. My generation felt isolated. And a few of them showed that in some of the submissions, the objections to the legislation.”

Esther believed the consequences of keeping the details of the negotiations confidential made her own job more difficult:

“… Because you’ve got to understand that it’s a Mäori community and they all know you and where you live. And they know your phone number and they just bug you. And you can understand why. And what I have noticed with my generation is that they wanted to be here because they understand the process.”

During the negotiations, Te Uri o Hau found that the leader of the Crown team changed three times:

“While going through negotiations we had Ross Phillipson as our claims manager and he was also the director, after Ross we had Paul Barker and he stayed for a little while, after Paul we had Andrew Hampton.”

Te Uri o Hau found the change of claims managers by the Office of Treaty Settlements to be somewhat problematic, as each new claim manager had to be brought up to speed with the progress of the negotiations:

“It did in the sense in that we had to update them on what was going on, you know, where we, where the last one had left off.”

Te Uri o Hau found that although their day-to-day negotiations took place with the Office of Treaty Settlements, the Crown Law Office played a major role in their negotiations, scrutinising every part of the Te Uri o Hau settlement:

“Well you can go through all negotiations you like, but at the end of the day Crown Law’s got to go through it. And Crown Law’s main objective is to protect the Crown.”

As Esther explained, the Crown Law Office represents the New Zealand Government in legal proceedings. Esther believed that Crown Law had a large amount of influence over the Office of Treaty Settlements:

“They check all the documentation that comes through … even though OTS might agree with it, it still has to go through Crown Law and then it comes back to us if Crown Law doesn’t agree with it.

“… They’re a law unto themselves basically. They protect Crown, legally protect the Crown.”

During the drafting of the Crown’s apology Esther was struck by a particular incident that made her wonder how much attention Crown Law officials had paid to particular details of New Zealand’s history:

“And there was an area in there, in the apology that she wanted to change a word in the English version and whenever you change it in the English version you’ve got to change it in the Mäori version. And anyhow she says to, she comes in and I said to her look we can’t get this translated, our old people are coming by bus, I can’t ring anyone at home back up north to get the translation. It was only a minor little word, and that always helped, if your claim managers aren’t doing the translation it always helps because that gives you that fall back. You know time to actually seek kaumätua. You know and she says well, let’s not worry about it, let’s just change it in the English version and leave the Mäori, and I said and that’s what happened with the Treaty and that’s why you and I are
sitting here today, and yet they still wanted to do that. I know it was only a minor word but I just couldn’t help myself, I had to remind her, that’s how it happened.”

Esther summed up her role as a negotiator for Te Uri o Hau as a time of extremely hard work and personal growth:

“Well to be honest with you, I was really a tool, I tell you you’ve gotta look at yourself, you’re a tool of the people. So while you’re there as like, a little hammer, just bang bang bang bang.

“At the end of the day it would be my A team, our A team that would come and say yes that now is right. Personally, you know I can only give you a personal, from Esther Gray personally. There’s a lot of changes that need to happen, and it needs to happen in policy, and in Crown and government’s outlook.”

Compensation

This section discusses Esther’s view of compensation negotiated in the settlement, and the process required to secure the Te Uri o Hau settlement.

Esther Gray explained that many members of Te Uri o Hau did not fully realise what the settlement process would provide in terms of actual redress or compensation. Esther recalled that some kaumätua thought the settlement process would return all of Te Uri o Hau tribal estate. Many did not understand the parameters of the settlement process:

“… This older group here wanted all the land back. That was the concession they would have to make. The Crown doesn’t deal in private land. They wanted all the land back.”

Esther recalled that although the reality was a difficult pill to swallow for many, the members of Te Uri o Hau were mindful that the settlement was for the benefit of their descendants. Explaining the reality of what Te Uri o Hau were going to receive made Te Uri o Hau focus on future development for the benefit of their children:

“I think yes it was to explain it to them. Because then you have to give the alternative and the alternative meant going forth in the future.

“There’s one thing that our kaumätua and kuia, and I think it’s throughout Mäoridom, is what is good for their mokopuna? They will go with it.

“If you were to say to me why didn’t Te Uri o Hau just stop the negotiations, I would say to you that I would hate to see my son go through this or my grand-children. That’d just take some, I started in 1994 and I’m still bloody going in 2002.

“It’s a hell of a drain, it takes you to places you’ve never been, and you meet people you’d never met and probably wouldn’t meet and it’s given me a lot of experience, but still I wouldn’t want my son to go through it or my grand-children.”

Part of the Te Uri o Hau settlement included an offer by the Crown to assist in fostering a relationship between Te Uri o Hau and the various local government bodies within their rohe. Esther believed that these relationships were important, but noted that the ability of the Crown to influence local government was extremely limited.

In addition to this, she was skeptical as to what power a Memorandum of Understanding would provide Te Uri o Hau in it’s dealings with local government:
“At the moment we are going through an MOU with Kaipara District Council, that’s what Wikiriwhi’s working on, and then we start with Northland Regional Council and Rodney District in Auckland.

“What you’re asking me is does this settlement give Te Uri o Hau under the settlement mana whenua, mana moana and under a Crown scenario with Crown entities, like these district councils, to say that out here in this area Te Uri o Hau are mana whenua, not really.

“It’s how well you push your MOU and a section in here the Crown will endeavour to help regional and district councils enter into and supporting entering into an MOU but the likely body has no legal binding agreement between local body and the Crown. So Crown can’t say you have to do this to local bodies.

“Wikiriwhi Hetaraka worked closely on developing the Memorandum of Understanding between Te Uri o Hau and the Kaipara District Council.”

Although the Crown supported this process in the Deed of Settlement, Wikiriwhi believed that Te Uri o Hau could have established the same relationship without a Treaty settlement:
“… Some of the thoughts I’ve had too are, at some of our meetings for negotiations, something I’ve thought about, you really didn’t need a deed to have put it together? It’s just straight talking, forming a relationship and you didn’t need a deed to do that.”

Te Uri o Hau also received a number of statutory acknowledgements in their Deed of Settlement. Esther was unsure what level of protection these acknowledgements would provide for Te Uri o Hau interests in the significant sites covered:

“They were called the mana-enhancing tools for Mäori. That’s what Crown call mana-enhancing.

“If you were to say to me, will these statutory acknowledgements help Te Uri o Hau as a legal instrument to go and fight against let’s say a developer calling up the Ministry of Economic Development, going in the harbour and mining, not really. It’d be really just to acknowledge them, but whether they’ll give a legal ruling on it hasn’t been set … there’s been no legal precedent set on it.”

The Crown insists that all descendants of a particular group should be able to benefit from a Treaty settlement. While she did not disagree with this idea, Esther personally believed that any distribution of benefits from the settlement should give an initial preference to the ahi kaa groups:

“I mean it’s a bit pointless not doing the people inside the rohe who maintain ahi kaa and going outside to the bigger cities.

“The breakdown of our beneficiary registry is that 60% live in Auckland, no probably less than that, probably 55% live in Auckland and 45% live inside the rohe. Not many government agencies like seeing you … you know, they like you to go to where the concentration of beneficiaries are, but if it’s a settlement, a claim, Treaty claim settlement, this is only my personal opinion, then the claim is here, the grievance is here, so first we must tidy up here and keep the people here and in fact attract the people from Auckland to come home by providing employment, housing, because we’re going to need all of them to actually take us into the 25-year plan. They wouldn’t give us charitable status … the government.”

Esther believed Te Uri o Hau had achieved the best settlement possible for their people under the present Treaty settlement policy:

“We’ve got more, if you break it down to a beneficiary ratio, than Tainui, per beneficiary. Tainui had other, the ratchet clause similar to Ngäi Tahu which means the Crown cannot settle on a higher value than what they’ve already settled with Ngäi Tahu and Tainui, so they can actually revisit that, so that, I think, I believe that’s determined, made the Crown keep within that fiscal envelope I reckon.

“It’s the best deal we could get out under today’s present government and policy.”

For further information about this subject please refer to the booklet where these extracts were taken from on the Crown Forestry Rental Trust website.