7 February 2002 Media Release

Analysis and comment on extracts from Michael Basset’s article.

Māori won a ruling from the courts that sales (of Crown forests) couldn't proceed etc ...
- Māori and the Crown negotiated an agreement which allowed the Crown to realise its assets. They agreed that Māori claims should be settled speedily, and both parties undertook to use their best endeavours to investigate and determine Māori claims to forest licensed lands.

The trees could be sold, but the revenue would go to a Trust fund, interest from which would assist in determining who owned the land.
- The revenue of over $3 billion from the sale of the assets went into the consolidated fund. It is interest from the accumulated rental income which is used to assist Māori. When assessing the Crown's 'best endeavours', the Tribunal's annual funding of approx. $5 million should be considered against the $3 billion which the agreement provided for the Crown (0.15%p.a.).

A loose trust deed was signed with appointed trustees.
- The meaning of the deed is quite clear. Half the trustees are appointed by the Crown.

It gave them too much control ...
- Trustees must have control - otherwise they can't be held responsible for discharging their trust.

Staff were appointed at big salaries, and trustees paid themselves generously.
- Trustees are paid standard rates; staff are paid market rates.

The number of claims to the Tribunal stepped up. Historians queued for
contracts to write histories at the trust's expense.
- Claimants sought the services of historians to enable them to present the best possible claim.

Hearings grew more legalistic. More and more lawyers sat all day on legal aid asking perfunctory questions.
- This happened as the Crown adopted an adversarial approach to defend the Crown's interests. Claimants had to withstand intensive cross-examination and to rebut the Crown's own extensive evidence. It is a problem of Tribunal process, not Trust funding (a problem which the tribunal's 'new approach' is designed to address).

More cross-claimants anxious to get their slice of the trust's money
emerged. ... In effect some of them were trying to get their settlement
money up front ...
-Māori pay the costs of their own claims on account, because trust money spent on process becomes unavailable for settlements. Māori have the greatest
incentive to find an efficient settlement process.

The Trust, with its $21 million income, controlled the process ...
- The Trust has almost no control over the process, except by working with Māori and Crown agencies and using powers of persuasion. Crown agencies each control their part of the process, but there is no overall control from beginning to end.

The crown needs to re-examine [the deed], and to reallocate some of the
forest income directly to the tribunal so that it can do its job.
- The deed was agreed between Māori and the Crown - and could be varied
only by consent.
- The Tribunal could use its binding powers to settle forestry claims, but has so far declined to.
- For now, the Tribunal’s role is confined to investigating and making recommendations on Māori claims; settlement negotiations take place between claimants and the OTS, not the Tribunal.

After nearly twelve years, not one major forest has had the ownership of land underneath it decided.
- There are 26 forests in the South Island and Onewhero in the Tainui region whose land ownership has been confirmed. Those of Te Uri o Hau and Ngati Tama are awaiting the passage of settlement legislation.

... some Māori regard the assets of the trust as theirs to do with as they wish.
- So, apparently, does at least one member of the Waitangi Tribunal.

The underlying fallacy of the article is that if the Tribunal were able to do its job, claims would be settled. In fact the Tribunal has done its job on many claims that are still not yet settled.

The Tribunal's job ends when recommendations are made to the government. The Tribunal produces outputs, but not outcomes. Many claimants, whose claims have been disposed of by the Tribunal, are either unable to enter into negotiations with the OTS, or are trapped in the prolonged negotiation process. That is not the Tribunal's problem, but it is the claimants', and it is the Trust's.

The purpose of the Trust is to assist Māori. The Trust has assisted many claimants through to the end of the Tribunal hearing process, but has not been able to transfer assets to Māori because claimants and the Crown have not succeeded in negotiating settlements. The article makes no reference at all to the role of the OTS.

It is the Crown’s duty to ensure the Tribunal is adequately resourced to fulfil its statutory obligations to administer justice. That is a function of käwanatanga. Māori, through the Trust, pay for the preparation of their claims (with assistance from legal aid). The suggestion that the Trust should pay for the Tribunal as well is like suggesting that a prisoner on remand should not be brought to trial until he pays the salaries of the judge and the court staff as well as costs of his defence.