Crown will reopen settlement negotiations with Whakatōhea

This week Treaty Negotiations Minister Andrew Little confirmed the Crown will re-enter negotiations with the Whakatōhea Pre-Settlement Claims Trust. In a controversial report in 2018 the Waitangi Tribunal urged the Crown and Whakatōhea to put the Pre-Settlement Claim Trust’s mandate to another iwi-wide vote after finding evidence of intra-iwi dissent. The Tribunal also criticised the Crown for prioritising a “political objective” – settling outstanding historical claims by 2020 – over what was fair for Whakatōhea.

Here are some thoughts:

  • Andrew Little had no good options, and you could argue this was the only reasonable compromise option. One side with the support of almost half of the participating iwi members in last year’s vote wants to halt negotiations and open a Tribunal historical inquiry. The other side with the support of a little over half of the participating iwi members wants to continue negotiations with a historical inquiry running either parallel to negotiations or post-negotiations. Little’s decision to re-enter negotiations alongside a historical inquiry is, you can argue, the only option that avoids the Crown picking a side in an intra-iwi dispute.

  • That said, the decision to re-enter negotiations is likely to make intra-iwi relations worse. In 2016 92 percent of participating iwi members voted to confirm the Pre-Settlement Claims Trust’s mandate. In 2018 a little over 56 percent voted to reaffirm that mandate. That’s a massive drop in support and signals an enormous shift in iwi sentiment. Given that shift there were grounds for the Crown to argue it cannot reasonably re-enter negotiations until the Pre-Settlement Claims Trust can command a mandate like it did in 2016.

  • Little set the threshold for entering negotiations with a mandated body from Ngāpuhi at 75 percent. Why the lower threshold – 56 percent – for Whakatohea? You can argue the Claims Trust earned its mandate in 2016 (and overwhelmingly so) and 2018’s vote was merely to reaffirm it. But that seems insufficient. Negotiating bodies must maintain a mandate over years, and a drop from 92 percent to 56 percent over two years signals that the Claims Trust might struggle to maintain its mandate come the final stages. When a deed of settlements goes to an iwi-wide ratification vote will it pass? At this rate it’s a line call. Perhaps to save face in such a situation the Crown should consider a new, better offer.

  • There are very contemporary resentments and grievances in play. In 1996 the then Whakatōhea negotiators, under the mana of the late Ranginui Walker and others, rightly walked away from negotiations and were forced to the back of the line. That’s a contemporary grievance that, one, will require redress either now or in the future, and two, ensures the default assumption in negotiations is distrusting the Crown (rightly so, of course). Arguably the Crown made their bed, and now they have to lie in it.