It’s easy to be friends with one who shares the same opinions

There has been a call for a review of the Waitangi Tribunal based on a view that the Tribunal leans against the Crown in challenges to settlement negotiations.  Lets just fact-check that.  

Shane Jones has come out swinging against the Waitangi Tribunal and suggests it is over reaching. This is the result of recent Tribunal reports that are highly critical of the Crown’s approach to settlement negotiations. He has called for a review.  

Chris Finlayson – who was the Minister responsible for these particular negotiations – seems to be in support and says that the Tribunal has a tendency to always see the Crown as being wrong. 

The first problem with this view is that it’s probably based on looking at just the formal reports that the Tribunal issues – and yes, a number of these are critical of the Crown.   

But these reports are just the tip of an iceberg of claims.  

Before a challenge to a settlement negotiation gets heard by the Tribunal as a matter of urgency it needs to hit a number of criteria.  These relate to the level of support a claim has and what sort of impact there will be.  If you don’t meet those criteria, then the claim is dead in the water.  Even if your claim might hit these criteria it may still get resolved below the radar – such as through mediation.   

This means that a significant proportion of challenges to a settlement negotiation never see the light of day for one reason or another.   So claiming the Tribunal is loaded against the Crown based on the Tribunal’s reports misses the significant number of claims that never get that never get reported at all.    

Even then it’s a still a leap to draw a conclusion that the Tribunal is overly critical of the Crown.

For example there are a number of Tribunal reports that find for the Crown.  

And of course there’s the times claimants have had to go to Court, including the Supreme Court, to force the Tribunal to not defer to the Crown.   That suggests that the deck isn’t exactly stacked against them. 

And even then, the small number of Tribunal reports that are, eventually, critical of Crown actions still signal a general support for the Crown’s settlement policies.   Instead the criticism that the Tribunal does have is when the Crown applies its policy in a way that gives the Tribunal no option but to face-palm and ask wtf were you thinking?

The Tribunal’s report on the Whakatohea negotiations is a good example. The Tribunal is actually really clear there that it supports settlement policy and wont let individual claimants derail a settlement.  But the Crown did stuff like promise claimants it would do one thing before doing the exact opposite.  It’s not hard to understand why the Tribunal felt that strategy was a Very Bad Thing.   

So any suggestion for a review of the Tribunal because Tribunal unfairly finds against the Crown is just not based on fact.  It’s the political equivalent of ‘if you wont let me win all the time I’ll take my ball and go home’. 

And stomping off with the ball is a bad idea.  

It’s a bad idea because for a Treaty settlement to be lasting is as much about the process as the result.  If there is a significant depth of feeling that the process is not addressing claimants concerns then forcing a settlement through is not going to give a lasting outcome. It’s more likely to entrench positions and fester. 

It’s a bad idea because the Tribunal is a useful safety valve.   Changing the rules so there is no longer a legitimate pathway to raise concerns doesn’t get rid of those concerns.  It risks pushing them in another direction that might be even less constructive.  

It’s a bad idea because when the Tribunal comes out with these sorts of highly critical reports it’s like a warning light coming on in the dashboard of your car.  It signals there actually is a problem.  It might be best to check that warning light out rather than covering it up and driving on. 

That these sorts of findings signal something is breaking down in the process and its time to look under the bonnetis actually what Chris Finlayson was talking about 2006/07 before he was Minister.  Back when he was talking about Tribunal criticism of negotiations he wasn’t responsible for.  

The current Tribunal criticism of a very small number of settlement negations shouldn’t distract from the huge progress that has been made in settlements under Finlayson’s watch.  But what it does signal is that the process has probably gotten a bit stale and formulaic over time.  Then mistakes happen.   

That is essentially what happened back in 2006/07 too.  And then the response of Michael Cullen, and later Chris Finlayson, was to take on board the criticism of the process and breathe some fresh air into it.  The result was landmark settlements in areas like the Central North Island and Tamaki Makaurau

So here’s my advice for Andrew Little in his new(ish) role as the Minister with responsibilities for these issues.   

Don’t listen to Shane Jones or to the Chris Finlayson of 2018.  Leave the Waitangi Tribunal alone. 

But do pay attention to an earlier Finlayson vintage, the approach of Michael Cullen, and listen to the Tribunal.   There is now the same opportunity they had to take a fresh approach to settlement negotiations and achieve your own landmark agreements.