What is the process?
Treaty settlements proceed through a number of stages. Briefly they are as follows: Pre-Negotiations, Negotiations, Agreement in Principle, Deed of Settlement and Settlement Legislation. Te Rarawa has initialled a 'Deed of Settlment' (DOS) and is bringing this back to the iwi to ratify.
In brief the Treaty Settlement Process involves:
Mandating for Negotiations
The aim of this part of the process is for Te Rarawa to provide a Deed of Mandate to the Crown.
This Deed of Mandate:
. states who has the authority to represent Te Rarawa in negotiations with the Crown;
. describes how this mandate was obtained and how the negotiators are to be held accountable to the wider Te Rarawa community;
. defines Te Rarawa's interests, the claim area and the claims that are intended to be settled.
As an important part of the negotiations phase, the Crown and the mandated representatives first discuss the various interests they each wish to protect and promote in a settlement package. The parties then try to reach agreement on particular proposals for settling the claim. The Crown and the mandated representatives exchange letters outlining an Agreement in Principle or, more formally, sign Heads of Agreement, to signal their agreement on the monetary value of the settlement (what is known as the “settlement quantum”), and the scope and nature of other redress to be provided.
The parties then need to work through the detail on such matters as:
. an account of the historical basis of the claims, those matters the Crown acknowledges as breaches of the Treaty and its principles, and the wording of the Crown’s apology;
. what commercial settlement assets might be transferred, and on what terms;
. the various items of cultural redress that are offered.
When all the details of the redress have been agreed, these are set out in a draft Deed of Settlement for approval by Cabinet. The draft Deed of Settlement is then initialled by both the Crown and the mandated representatives for ratification by Te Rarawa.
The Deed of Settlement initialled between the Crown and the mandated representatives must be clearly approved by Te Rarawa before it becomes binding. This approval process is called ratification. The key part of the ratification process is a postal ballot in which all members over the age of 18 are eligible to vote.
In addition members must have a chance to review and ratify the proposed governance entity for the settlement. The term “governance entity” simply refers to the legal entity that will be used to hold and manage settlement assets, and exercise the forms of cultural redress provided in the settlement package. Ratification of the governance entity must occur before the Crown can introduce settlement legislation and transfer the redress provided in the settlement to Te Rarawa. The ratification process for a governance entity is similar to that used to ratify a Deed of Settlement. It may be carried out at the same time as the members of Te Rarawa consider whether or not to ratify a Deed of Settlement, or it can occur as a separate process.
The term “governance entity” simply refers to the legal entity that will be used to hold and manage settlement assets and exercise the forms of cultural redress provided in the settlement package. The constitution of the governance entity is a matter for Te Rarawa to decide.
Settlement legislation is usually needed to implement a settlement. For example, legislation is needed to ensure the finality of the settlement by removing the ability of the courts and Waitangi Tribunal to re-open the historical claims or the Deed of Settlement. It may also be needed to vest land in the governance entity on behalf of the claimant group if normal administrative land transfer processes would not be appropriate.