Pre-negotiations - choosing representatives and Terms of Negotiation

Each claimant group needs to choose representatives to act on their behalf in negotiations with the Crown. A number of people will be nominated to be representatives for your claimant group. Your representatives might come from an existing group, like:

• a rūnanga
• an iwi authority
• a Māori Trust Board

or they might be members of your community who have suitable skills, like a background in law or experience in public speaking. They’ll prepare a Mandate Strategy document, which sets out:

• the common ancestry of the claimant group
• a description of the people who’ve been asked to represent the claimant group
• how they’ll get approval from the claimant group to represent them in negotiations. This usually involves holding hui where you can meet your reps and ask them questions.

Your representatives will advertise the Mandate Strategy in the media when it’s ready, usually in national newspapers. They’ll ask for feedback and submissions on the document, and may change it based on the feedback they receive. 

The’ll also form a legal entity to manage any funding the group receives and will set out rules for how they’ll be accountable to the claimant group. They’ll keep a list of everyone who has registered historical Treaty of Waitangi claims and is part of the claimant group.

A series of hui will be held so that everyone in your claimant group can discuss their grievances and meet the nominated representatives. The aim of the hui is to get agreement from as much of your community as possible on who should represent you.

Hui will be held at marae or other venues around your rohe, or district. If there’s a lot of people living elsewhere, hui will be held somewhere it’ll be easier for them to attend. Hui will be advertised at least 3 weeks beforehand:

• in local newspapers
• online
• in pānui
• at your marae.

There may also be a postal vote on the representatives.

Representatives are chosen solely by the claimant group - The Crown has no say. The Ministry of Māori Development, Te Puni Kōkiri (TPK) will act as neutral observers while voting takes place to make sure that the process is open and fair.

If you cannot agree on who should represent you

Not everyone in your community may agree on your representatives, or the process to choose them.

If there’s a dispute – for example, if there’s more than one group who would like to represent you – your claimant group should come to a decision about this before continuing with the Deed of Mandate and entering negotiations. If your claimant group cannot decide, you can apply to the Māori Land Court for advice.

If there’s one large group, like a hapū or marae, who do not agree with the representatives that are chosen, your representatives may get a conditional mandate instead. This means negotiations can start, but with conditions. If the conditions are not met at any time:

• your representatives may lose their mandate 
• if negotiations have started, they’ll have to stop
• new representatives may need to be chosen and mandated.

Your representatives will need to show the Crown that they have your support to represent them in negotiations. This is called getting mandate. OTS will help them prepare a Deed of Mandate document for the Crown.

When the Deed of Mandate is ready, it’ll go to OTS and TPK for review. They’ll check to make sure that it:

• defines the claimant group 
• shows that the claimant group has been consulted and how this was done
• confirms that the representatives have been authorised to negotiate your settlement
• shows how your representatives will be accountable to you
• lists the claims to be settled
• identifies the claim area and any overlapping claims
• acknowledges opposition, if there is any.

Overlapping claims

An overlapping claim exists where 2 or more claimant groups make a claim for the same thing, like an area of land.

Disagreements can arise when the Crown proposes to transfer the subject of a claim to one group and by doing so, excludes others. This is known as exclusive redress.

When more than one claimant group has historical or cultural associations with the subject of a claim, redress can recognise this and accommodate all groups. This is known as non-exclusive redress.

Claimant groups must resolve overlapping claims themselves where possible. If the claimant groups cannot reach an agreement, the Crown will make a decision. The Crown prefers to offer non-exclusive redress when more than one claimant group has cultural interests in the subject of a claim.

When overlapping claims are resolved early in the settlement process, possible delays and challenges can be avoided later.

When the Deed of Mandate document is ready, your reps must advertise it in the media, usually in national newspapers. They’ll give 3 weeks’ notice for anyone to comment on the mandate, and will review any feedback they receive and report on it to OTS and TPK. They may also update the Deed of Mandate document based on the feedback they receive.

OTS and TPK will also review the feedback on the Deed of Mandate, and any changes that are made to it. Then they’ll ask the Minister for Treaty of Waitangi Negotiations and the Minister for Māori Development to recognise the mandate.

If the Ministers recognise the mandate, your representatives will receive a letter confirming them as the representatives for your claimant group. They’ll also have to report back to the Crown regularly to confirm that they still have your support.

When your representatives have got the mandate, they’ll work on a Terms of Negotiation agreement with the Crown. 

The Terms of Negotiation document sets out the ground rules for negotiations. It describes what the claimant group and the Crown want to achieve. It also details who’s part of the claimant group, to make sure that everyone in the group will benefit from the settlement.

Your representatives will choose between 2 kinds of Terms of Negotiation documents.

1. Streamlined Terms of Negotiation.

   OTS has a template for this document based on previous settlements. Your representatives will fill it in and then the Crown signs it. It takes about 2-3 weeks to complete.

2. Full Terms of Negotiation.

   A full Terms of Negotiation document takes longer to write. Your representatives will work through the details of this document with the Crown — it can take up to 3 months to complete.

While your representatives and the Crown are working on the Terms of Negotiation, they’ll also appoint people to negotiate your settlement. In most cases, they’ll choose between 3 and 5 people each. The:

• claimant group’s negotiators might be your existing representatives, or they might be people chosen to act on their behalf 
• Crown negotiators will be chosen by the Minister for Treaty of Waitangi Negotiations and OTS.

If there are a lot of complex issues to work through, the negotiators may nominate other people to be part of working groups. The working groups will look at each issue in more detail and report on them to the negotiators.

Your representatives will get funding toward the cost of settling your claims when they’re ready to begin working on Terms of Negotiation with the Crown.

The amount of funding your group will get is based on things like:

• the size of your claimant group
• how complex the claims are
• if there are overlapping claims with other groups, and
• how many hui will be needed during the negotiations, and where they’ll be held.

Funding is paid in instalments. Your representatives will get funding in advance for each step in the settlement process.

During pre-negotiations, your representatives will get funds to cover:

• costs they incurred during the mandating process that was not covered by earlier funding
• time spent writing Terms of Negotiation with the Crown
• time spent choosing negotiators for your claimant group.

Find out more about funding

The claimant group needs to:

• attend hui to talk about your claims and meet the people nominated to be your representatives
• vote on who you want to represent your group in negotiations.

Your representatives will:

• meet with the claimant group to hear your claims and show why they should represent you
• prepare a Deed of Mandate document for the Crown
• get approved by the Crown to start negotiations
• tell you when the Terms of Negotiation are signed
• keep you informed about who they’ve chosen to be your negotiators
• receive funding.

The Crown will:

• recognise the mandate for your representatives
• work with your representatives on the Terms of Negotiation for your settlement.

If you have questions about the hui you can talk to the people at your marae, and your representatives will keep you up to date with pānui.

You can also check to see if your claimant group has a website or a Facebook page where you can get updates.

Once the Terms of Negotiations are agreed on and funding has been allocated, your representatives will start to negotiate a settlement with the Crown.