August 2009 Newsletter
Kia hiwa ra- August 2009
Chief Executive Message
Ka puta a Matariki ka rere Whanui
Matariki hunga nui
Matariki kanohi iti
Ka puta ko Puanga, nau mai ki te ao
Tihei mauri ora
I runga ano i enei whakaaro…Kei a koe Te Ariki e Tumu, te kakano i ruia mai i te wharetapu o Te Heuheu. He mihi maioha mou e karangahia ake nei.
Kei nga rangatira, kei nga kaka wahanui, kei nga manukorihi mai nga Kuri a Wharei ki Tihirau - Mai Maketu ki Tongariro tena koutou katoa
E te Pirimia tuarua ko Wiremu Pakeha nau nei I whakarangatira ai tenei kaupapa nui. Kia piki te ora ki a koe me tou tira. Kei te whakaminenga huri noa tena koutou, tena koutou, tena koutou katoa
When CFRT was approached in 2007 to provide assistance to Te Arikinui Dr Tumu Te Heuheu and representatives of the CNI tribes, to enable them to conduct preliminary discussions with Dr Cullen, to say that we were sceptical is an understatement. The Maori Affairs Select Committee Report of 2003 had been damning of the Trust’s involvement in an earlier attempt to settle the CNI forests, and in the aftermath of that report there was a commitment never to repeat the same mistakes.
This sentiment could not be attributed solely to CFRT. The Treaty sector as a whole felt the same way. I remember being at a high level inter-agency meeting at that time when the prospect of a CNI settlement was brought up. Everyone agreed it would be a significant achievement but that the barriers to success were manifold, almost insurmountable. The attitude was definitely one of “wait and see.”
In late October Tumu came personally to the Trust to ask for our assistance. He voiced his determination to lead a settlement that would be inclusive of all those iwi with interests in the CNI forests. We agreed to do what we could to help.
At the Tainui Taranaki ki te Tonga signing of Terms of Negotiation in November 2007 I asked the then Minister of Maori Affairs Hon Parekura Horomia if I could speak to Hon Dr Cullen. After the formalities the three of us went for a walk and I asked Dr Cullen if he was serious about the proposal. He assured me that he was completely serious, and I told him if that was the case then the Trust would do its best to provide whatever assistance we could.
In the third week of December I accompanied Wira Gardiner, Mark Jacobs and Hon Mita Ririnui on the first round of consultation hui with iwi. The project had begun to “grow legs.” The formation at this time of the CNI Iwi Collective was no mean feat, and remains a testimony to the leadership of Te Arikinui and the desire of individual iwi leaders to co-operate with each other in order to achieve a settlement for the benefit of all.
However, it was not until the Crown issued a draft Terms of Agreement in January 2008 that any residual doubt about the potential success of this venture receded. By committing its intentions to paper at such an early stage in the discussions, the Crown demonstrated the type and pace of negotiations it was willing to enter into. It was well and truly ‘game on’.
The role played by the Treasury in this negotiation cannot be underestimated. The Treasury is probably the only agency that could have led the early part of the Crown effort in this settlement. The old net had well and truly been holed and a new net was going fishing. The manner in which these negotiations have proceeded has significantly rewritten the settlement process. It required an agency with sufficient clout to enable that to happen.
This does not take away from the support provided by the Office of Treaty Settlements. A number of key personnel were seconded to the Treasury team and separate negotiations with each iwi to complete comprehensive negotiations proceeded concurrently.
The reports of the Waitangi Tribunal into the Tamaki Makaurau and Te Arawa negotiations delivered in 2007 created the environment for this type of negotiation. Those reports drew the Crown’s attention to its obligation to take into account the interests of all Tangata Whenua groups and overlapping claims when negotiating a settlement.
Te Pumautanga o Te Arawa already had a Deed of Settlement at this stage, and their vision, humility and generosity in allowing the wider settlement to supersede their own cannot go without mention.
Last year’s appointment of the three CNI facilitators - Matt Te Pou, Graham Pryor and George Asher - was a significant milestone. These gentlemen applied their individual tenacities, resilience and focus to the pursuit of the common objective. They were aided at every step by the CNIIC secretariat - Dickson Chapman, Paranapa Otimi, and Stephen Asher.
The new Minister for Treaty of Waitangi Negotiations, the Honourable Chris Finlayson, has kept faith with the work of his predecessor and enabled the completion of this CNI settlement to proceed in the same spirit as it began.
Finally, to the contribution of the Crown Forestry Rental Trust. Early in 2008, our Board of Trustees laid out what they expected of CFRT management: Be responsive, but at all times operate within the parameters of the Trust Deed, and: do not be an impediment to the successful completion of this settlement. The Trust has done its best to meet those expectations.
The tension created by claimant expectations, tight timeframes and the requirements of the CFRT Deed has meant that the path has not always been strewn with roses. On innumerable occasions there have been differences of opinion. Yet, despite all of that, we have succeeded in reaching our objective today - the transferral of $283,993,191.38 million in accumulated rentals to the CNIIC.
The Trust put a dedicated CNI team in place to assist with funding for research, specialist advice, negotiations, communication, governance and administration costs. Trustees also had a standing agreement that they would consider any CNI application meeting our criteria within 48 hours of its being presented to them.
Since October 2007 the Trust has provided $20 million to CNI iwi. When previous projects in the CNI such as the VIP are taken into account, the total amount paid out is $55 million. That equates to a 418% return on investment.
In addition, the Trust projects that a further $7 million will be required to complete the comprehensive negotiations of all eligible CNI iwi. This makes up a total Trust investment in the settlement of CNI claims of $62 million.
So, where to from here? The Trust still has a large number of claimants to support to achieve their eventual settlements. We will continue to hold $240 million in accumulated rentals and $144 million in retained earnings. If we keep funding at current levels, based on OTS and Waitangi Tribunal forward plans, we will be running operating deficits from this year forward and using our retained earnings to fund them. The funds available for settlement of outstanding claims will reduce at an increasing rate over the next few years. It is worth noting that the cost of a settlement generally remains the same regardless of the population of a claimant group or the nature of the treaty breach against them.
We may be approaching a time where serious consideration needs to be given to ways of making the process more cost effective. An alternative is that at some point in the future it may become necessary for the Trust to place ceilings on the levels of funding available for particular activities.
For the CNI Iwi Collective the road ahead has just as many challenges. The resolution of the manawhenua process and investment and distribution decisions are all imminent. As with all Treaty settlements the expectations of iwi will far surpass the ability of the settlement body to deliver immediate benefits. For all New Zealanders the overall expectation is that Treaty settlements will not only contribute to healing the wounds of the past but will also be applied to improving the wellbeing of settlement beneficiaries.
On behalf of Sir Graham Latimer and the Crown Forestry Rental Trust I would like to wholeheartedly congratulate the Iwi of the Central North Island on completing their settlement today. Our gratitude is extended to all of the agencies and individuals who played a role, small or large in making this achievement possible. We also give thanks that we were able to participate and to make our contribution at this moment in the history of our country.
Kia hora te marino
Kia whakapapa pounamu Taupo nui a Tia
Kia tere te karohirohi
I mua i to koutou huarahi tika
Strategic Funding
The Government is committed to settling historical Treaty claims by 2014. To support this goal the Trust will need to provide funding assistance to many claimant groups in a short period of time. However, the Trust will need to be prudent about how it applies funds over the next few years to ensure that funds remain available to support all eligible claimant groups to settlement.
At a time in which the Trust is facing a reduction in its income-producing base, and where interest earnings on that income base are at historically low levels, the Trust is required to exercise that discretion which the Trust Deed explicitly confers to select between competing claims to financial assistance.
These are the key attributes that the Trust looks for in a funding application:
Consistency with Trust policy and processes
The level of engagement with the Crown
The capability of the group in managing the funds and work to be done
A realistic and cost effective plan
The Trust requires a clear and logically presented business plan. The business plan will define the overall goals and outcomes, timetable, key resources, personnel and funding that the claimant group requires for its settlement negotiations programme. It will consider the potential settlement assets on offer and therefore the specialist advice that they may need to support their negotiations and will include a risk management strategy, alternative options to a negotiated settlement and internal arrangements for communications as the settlement progresses. Most importantly, the financial information supporting the business case must stack up against the work required to be done.
Another factor taken into account is what other activities have been funded to date and what has been achieved with that funding. The accumulated rentals pertaining to a particular region are also part of the consideration. The final material factor in decision making is the projected total cost for the claimant group to reach settlement.
Summary
Cross Sector Relationships
The Trust is regularly involved in maintaining robust links with all of the Treaty sector agencies in Wellington. It meets regularly with the Minister for Treaty Settlements the Hon Chris Finlayson. This is a valuable exercise which allows the Trust to enhance its knowledge base from a government policy perspective.
The Trust also meets quarterly with a leadership group from the Waitangi Tribunal and the Office of Treaty Settlements. The Trust also attends monthly Treaty Sector Agency Group meetings which include representatives from all of the government departments having a primary or peripheral interest in the Treaty Settlements process.
The purpose of these meetings is to address any issues which might have an impact on the settlements process while maintaining key relationships within the sector. The meetings give all of the players an opportunity to engage and thus provides for better cohesion across the sector.
At the recent Maori Legal Forum, Judge Carrie Wainwright reflected on the Tribunal’s journey and provided a valuable insight into its future direction. In her presentation Judge Wainwright writes; “The days have gone, however, when the Tribunal expects that it will continue to work its way through district inquiries one after the other. Probably the group of district inquiries now in preparation will be the last. The reasons for this are twofold:
- there are not many districts left that have not been the subject of either Tribunal reports or settlements, or both; and
- some claimants are choosing to enter into direct negotiation with the Government without going through the Tribunal process.”
The full presentation is available on this link.
Another Super Deal Unfolding
In 2003 the Crown commenced negotiations with Ngati Whatua o Orakei to settle their historical Treaty claims, leading to the signing of an Agreement in Principle in June 2006. This Agreement in Principle contained a range of redress, much of which was contested by other groups who claimed interests in the same area but had been consulted very late in the negotiation process and only in a token manner. As a result, several groups (Hauraki iwi, Te Kawerau a Maki, Ngati te Ata, Ngai Tai ki Tamaki and Te Taou) lodged urgency applications with the Waitangi Tribunal claiming that they would be adversely affected both by the process and the outcome of the Treaty settlement negotiations between Ngati Whatua o Orakei and the Crown.
In March 2007 the Waitangi Tribunal held an urgent inquiry. The inquiry focused on the way in which the interests of other groups in Tamaki Makaurau had been considered during the Ngati Whatua negotiations. In June 2007 the Tribunal found that the Crown’s policy and practice were unfair both in terms of process and outcome. The Tribunal’s key recommendation was that the ‘settlement with Ngati Whatua o Orakei not proceed at this stage.’ They instead encouraged the Crown to negotiate settlements with the other groups. If this was done the Tribunal considered that it would provide a means whereby durable settlements could be reached with all the iwi with interests in Tamaki Makaurau.
Since June 2007, the Ngati Whatua Agreement in Principle has essentially been on hold. In March 2009 Sir Douglas Graham was appointed to facilitate a settlement of historical claims in the Tamaki-Makaurau region. In a previous life Sir Douglas was responsible for both the Waikato Tainui and the Kai Tahu settlements. The art of effective personal politics was his hallmark - negotiations were face-to-face and chief-to-chief, and deals were done.
Sir Douglas was first charged with determining whether the objections of the other groups to Ngati Whatua’s Agreement in Principle could be resolved so this settlement could proceed. He was secondly responsible for negotiating settlements with the other groups. Sir Douglas arranged meetings with all of the affected groups and quickly concluded that the Ngati Whatua settlement could not proceed in its current form, as the objections would not be withdrawn. Similarly, settlements with the other groups would not be reached until all groups could broadly agree on the nature and extent of redress to be received by all. As Sir Douglas saw it, there were two options - either (1) withdraw from Ngati Whatua’s Agreement in Principle and start again, which would likely be interpreted as the Crown acting in bad faith, or (2) try and re-negotiate Ngati Whatua’s Agreement in Principle and negotiate settlements with all iwi groups in the region which were acceptable to all the parties.
This proposal was put to the groups on Wednesday 24 June 2009, and includes total quantum of $180m, the maunga, right of first refusal over core Crown properties for 50 years, the return of various CFLLs and associated rentals, the return of discrete Sites of Significance (or suitable acknowledgement if these can’t be returned) and participation in regional advisory bodies for reserves and catchment management matters.
Both the CNI Forestry Settlement and the proposed Te Hiku settlement are ‘on account’ settlements as they do not settle the comprehensive Treaty claims of the affected iwi. In this respect, the settlements proposed in the Tamaki region are different. They will attempt to effect the comprehensive settlement of the historical Treaty claims of 13 groups covering an area from Whangarei in the north to Tauranga Moana in the south and including central Auckland. These include iwi who whakapapa to Tainui, Ngati Whatua and Hauraki.
The Trust has been aware of this proposal for several months and has developed a strategy to assist these groups to negotiate comprehensive settlements of their historical Treaty claims that involve Crown forest licensed land.
Specialist Advice
The Trust has an easy-to-understand Specialist Advice Guide available for all claimants in both hard copy and on our website. This guide also provides potential claimants with a worksheet to use when considering applying to the Trust for specialist advice funding.
Special Mention
The Trust newsletter will include a section which focuses on a special event that has occurred during the month. It may be a speech or a press release as well as an event that has taken place. In this month's publication we provide a link to a speech that was recently delivered by Chief Justice Dame Sian Elias. It focuses on the career of Shirley Smith and is a thought provoking soliloquy of one person’s dedication to justice.
The full speech is available on this link.
Ben Dalton
Chief Executive
Crown Forestry Rental Trust
