The purpose of this project was to enquire into and report on the following issues:
- Is there a need for changes, whether administrative or legislative, to address problems which have arisen in the period leading up to and in the course of implementation of settlements for breaches of the principles of the Treaty of Waitangi? In particular, is there a need for a generic post-settlement entity to be developed?
- If specific problems are identified which require administrative or legal changes, what changes are recommended?
- If legislation is recommended, what should be the form of the legislative framework?
Terms of reference
The Commission, in consultation with Te Puni Kokiri and the Chief Judge of the Maori Land Court, shall inquire into and report on the following issues:
- What specific problems have arisen leading up to and in the course of implementation of settlements for breach of the principles of the Treaty of Waitangi which ought to be taken into account in determining whether changes in administrative procedures, structures or in legislation should be made to ensure that Treaty settlements are used for the benefit of the kin groups on whose behalf they have been negotiated?
- In particular:
(a) What, if any, dispute resolution jurisdiction is required to enable questions of representation and the right to administer assets transferred as part of the settlement agreement to be resolved amicably between members of the kin group?
(b) To what extent should the current mechanisms used to implement Treaty settlements be structured to have regard to the mixture of custom law, principles of equity, fiduciary obligations and public law obligations owed to members of the groups on whose behalf the Treaty settlement has been negotiated?
(c) What processes or structures should be put in place to enable groups on whose behalf Treaty settlements have been negotiated to determine the purpose for which the Treaty settlement monies should be used and, if there is disagreement within the kin group, what objective criteria can be developed to assist the group in reaching a decision for a decision maker required to impose a solution?
(d) To what extent should decisions about the appropriate way to manage Treaty settlement assets be justiciable? Further, what criteria should be applied if such decisions are to be justiciable?
(e) What type of forum should be set up to enable disputes among members of kin groups in relation to Treaty settlement issues to be resolved, both in relation to pre-settlement and post-settlement representation issues and in relation to the ultimate allocation and/or use of the group assets?
(f) Whether it would be appropriate to include into Deeds of Settlement provisions for the resolution of disputes among members of the kin group on whose behalf settlement has been negotiated.
- If affirmative action is recommended by the Commission, what legislative framework or other mechanisms are required to give effect to the Commission’s recommendations?
Treaty of Waitangi Claims: Addressing the Post-Settlement Phase: An Advisory Report for Te Puni Kokiri, the Office of Treaty Settlements and the Chief Judge of the Māori Land Court (NZLC SP13)
The Commission's Study Paper, Treaty of Waitangi Claims: Addressing the Post-Settlement Phase: An Advisory Report for Te Puni Kokiri, the Office of Treaty Settlements and the Chief Judge of the Māori Land Court (SP13).