Overlapping claims in Treaty settlements have been before the Supreme Court and raised on Parliament’s lawn this week. Here’s a quick explainer as to why these can be such difficult issues. 

This week has seen the issue of how to manage overlapping claims in the negotiation of Treaty of Waitangi settlements came before the Supreme Court and led to protests on Parliament grounds. That particular issue related to a proposed settlement for Hauraki iwi and how it impacts on the neighboring iwi.

The details surrounding this settlement are too lengthy and complicated to do justice here. But a summary of what the overlapping claims process is, what’s changing, and why its ‘a thing’, is probably useful.

While settlements are often developed without heated overlapping disputes, when they do occur it’s by no means unusual and has happened under every Minister’s watch as you can see here, here, and here. The very first of the Treaty settlements saw litigation around overlapping interests run all the way to the Privy Council, just as they are appearing in the Supreme Court today.

Essentially the problem is that Treaty settlements are prisoners of geography.   They relate to iwi living in a particular geographic area, address the Crown’s actions that largely took place there, and seek to provide various forms of redress within that same area.

But more often than not multiple groups will claim interests in that particular area – hence ‘overlapping’ or ‘cross claims’.  

Very often those overlaps will occur because two groups can see the same historical events in very different ways. 

For example there can be disputes over whether or not an area was conquered by Iwi A – who might say they have dominate rights because they came in and threw iwi B out.  But iwi B might see what happened as iwi A raiding into an area and not staying long enough to acquire rights to the area – ‘you won a battle but not the war’. 

It may be that iwi A and B are very closely related and share common ancestors.  So both groups can equally say "our tūpuna lived here therefore its us that have rights".    It might even be that two groups utilized the same area in different ways – "its ours because we travelled through here on our way west" one might say while the other says "no its ours because it was our highway east".   Etc, etc, etc.

The key point to note here though is that because an association is very much about a historical perspective the two competing versions can be just as right as each other.   And because those perspectives are closely woven into ideas of identity for the groups involved this can make compromise very difficult for either party to accept.   That combination is what can make overlapping claims issues so hard to find a way through.

Currently the Crown’s policy for managing overlapping claims is to ensure that when settling with one group the Crown leaves itself enough redress options to be able to settle later with overlapping claimants.   This can encourage compromise – the negotiating group has an incentive to compromise to get to a settlement, the overlapping group has an incentive to do the same to get into negotiations and can see what redress might be possible when they do.  And the Crown can add to redress offers to encourage this as well. 

But it is based on an assumption that the overlapping group has yet to settle. That has been true in the past. What is different now is that increasingly the overlapping groups are the ones that have already settled, and settled based on assumptions about where they have interests and having already made overlapping claims compromises in their own negotiations.  

When that happens the Crown’s existing approach doesn’t make a lot of sense.   It also actively pushes against finding a compromise as neither side has much to gain in doing so. These overlapping claim issues may also have more lasting consequences as they raise issues of durability of settlements if settled iwi feel the Crown is coming along later to undermine existing settlements. 

So what’s the solution?  I don’t think there is an easy one.  Overlapping claims are a fundamental tension in the settlement process and probably always will be.  It might also be a necessarily part of the process as figuring out how to work with your neighbors post-settlement is an important step.   

But there is a need to relook at the process for working through overlapping issues to make sure Crown policy is fit for purpose at present.   Part of that change should be to find incentives that encourage compromise rather than push the groups to an outcome they both see as being a lose/lose.

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