22. It is vital the Crown is properly informed of the interests of all groups in an area before making an offer to a claimant group. The Crown will not initial a deed of settlement until it is satisfied overlapping interests have been addressed. The following sections outline the steps in the negotiation process to help ensure these.
23. The overlapping interests process may vary between settlements and districts, dependent on the nature of the negotiations and overlapping interests. For instance, in Tāmaki Makaurau, collective redress was negotiated with multiple large natural groups with interests in the region. The Crown then negotiated individual settlements to settle the historical claims of each large natural group. Collective redress agreements may support the resolution of overlapping interests by enabling redress for multiple groups to be held collectively.

Prior to signing the Agreement in Principle

Deed of Mandate

25. A deed of mandate defines the claimant group, states the historical claims that are intended to be settled, identifies the area of interest for the purpose of settlement negotiations, and states who has the authority to represent the claimant group in negotiations with the Crown. The deed of mandate also identifies overlapping groups that are known to have interests in the area of interest. These two elements of the deed of mandate — the claimant definition and the identification of overlapping groups — can assist neighbouring groups in identifying whether their interests overlap with those of the claimant group.
26. At the deed of mandate stage, the claimant group starts engaging with neighbouring groups that may have overlapping interests, regarding the claimant and claim definitions. The Crown publishes information on the claimant and claim definitions and invites submissions. This is an opportunity for neighbouring groups to communicate their interests in the claimant group’s area of interest.

Terms of Negotiation

27. During the mandate and Terms of Negotiation phases, the Office for Māori Crown Relations — Te Arawhiti and a claimant group continue to identify overlapping groups and Te Arawhiti identifies information it holds on the interests and associations of overlapping groups, and relevant discussions that have occurred (that is, in other negotiations or in other processes). The Terms of Negotiation set out Crown expectations for the settlement negotiations and matters agreed by the Crown and the claimant group for the negotiations, including sections on overlapping interests and the confidential nature of negotiations, that may extend to include other interested groups. The Terms of Negotiation are not legally binding.

Before the Crown makes its settlement offer to a claimant group

28. At the start of negotiations, after signing Terms of Negotiation, the Crown and the claimant group agree a strategy and a plan for undertaking an overlapping interests process and identifying their respective actions in engaging with overlapping groups as the negotiations progress. The strategy and plan will include an indicative process to resolve any issues. The strategy and plan will also record what information the Crown can share with overlapping groups, including information on its understanding of customary interests and associations. For more detail refer to the section ‘After the comprehensive Crown offer is accepted and before signing an Agreement in Principle’. The agreed plan outlining engagement with overlapping groups will be shared by the Crown in communications with overlapping groups.
29. The Crown expects the claimant group to lead discussions with overlapping groups (after Terms of Negotiation have been signed) and establish a process by which they can consider and reach agreement on how interests and associations can be managed. Groups may also wish to discuss the sharing and protection of information relating to customary interests and associations. The process usually involves a series of iterative discussions about respective interests and associations, the claimant group’s redress aspirations, and the potential redress mechanisms offered by the Crown. Iwi and hapū can engage in this process according to their tikanga if they choose.
30. Early in negotiations, Te Arawhiti will provide to overlapping groups information about Crown-owned properties in a particular area and settlement redress instruments to assist overlapping interests discussions. Te Arawhiti will also ask the claimant group and overlapping groups what other information they need from the Crown to inform their discussions and endeavour to provide as much relevant information as possible.

31. The claimant group and the overlapping groups advise the Crown of the outcomes of their discussions and whether there is agreement or differences and / or any outstanding issues. All information provided by the overlapping groups and the claimant group on their respective interests and the outcome of their discussions will inform the Crown’s consideration of what redress is offered to the claimant group. (For more detail refer to the section ‘How do overlapping interests influence the redress offered by the Crown?’).
32. The Crown seeks to give effect to any agreement reached between the claimant group and overlapping groups about redress, subject to:
    1. a. consideration of Treaty settlement policy (for example, not reopening settlements that have been concluded); and
    2. b. the Crown making the final decision about what redress to offer to the claimant group to settle historical claims.

    The Waitangi Tribunal highlighted in its Hauraki Settlement Overlapping Claims Inquiry Report 2020 (pp 89–90) that the Crown’s sensitivity to tikanga is an aspect of the principle of partnership. It discusses the use of tikanga-based processes not only to resolve conflict over redress, but to preserve relationships between claimant and overlapping groups.
    
    In that report, the Tribunal states that ‘... the Crown is not responsible for devising a one-size-fits-all tikanga-based process for dealing with overlapping interests; it is up to the groups involved to design and implement a process that is tika in terms of their own values, relationships and circumstances.
    
    But, in every settlement where overlapping interests arise, the Crown must facilitate, support and monitor a sound tikanga-based process. It should provide funding, administration support, access to facilitators or mediators, and more.’

    • Waitangi Tribunal, ‘The Hauraki Settlement Overlapping Claims Inquiry Report 2020’ (PDF 2.77 MB)

    The Tribunal has also found in other settlement inquiries that the Crown should facilitate engagement between the parties when they are failing or struggling to engage productively with each other, including in situations where claimant groups refuse to engage with the interested parties.

    33. The Crown’s preference is that the claimant group and overlapping groups agree solutions to address any issues relating to overlapping interests directly, in accordance with appropriate tikanga. If the groups seek it, the Crown can support engagement between groups at any stage of the overlapping interests process by funding research for groups, mediation or facilitation. Groups can contact Te Arawhiti directly for support.
    34. The Crown seeks clear written documentation of the outcomes of engagement on overlapping interests and associations, including any agreement between the claimant group and overlapping groups. However, the Crown recognises that there are sometimes barriers to engagement between groups. The Crown cannot force groups to work together to reach agreement. Information on what happens if groups cannot reach agreement on overlapping interests can be found in the following section ‘What happens if overlapping interests can’t be resolved by agreement?’).
    35. The Crown will also directly engage with overlapping groups on their interests and associations, and potential redress mechanisms for the claimant group in the overlapping area before making its offer to the claimant group.
    36. The Crown will communicate to overlapping groups, the reasons for which customary interest and association information is sought and the ways in which the information will be used and shared.
    37. Te Arawhiti uses a variety of means of communication for engagement including letters, hui (meetings in person), emails and phone calls. The Crown recognises that kanohi ki te kanohi, hui in person, is important to Māori and central to a process of engagement on customary interests and associations and offers to meet with groups.

    After the comprehensive Crown offer is accepted and before signing an Agreement in Principle

    38. Once the comprehensive Crown offer is made and accepted by the claimant group, the Crown continues to undertake engagement with overlapping groups on proposed redress (both exclusive and non-exclusive redress). Exclusive redress is offered only to one claimant group and will not be available as redress for other claimant groups. Non-exclusive redress is available as redress to more than one claimant group. For more detail on exclusive and non-exclusive cultural and commercial redress, refer to the section ‘How do overlapping interests influence the redress offered by the Crown?’.
    39. The Crown’s preferred practice is to provide groups with high-level information setting out the Crown’s understanding of the nature of the claimant group’s associations and / or customary interests that the Crown relied on when offering redress. The Crown may provide detailed information on its understanding of associations and / or customary interests in relation to specific sites (in the form of memoranda) to groups to inform discussions to resolve the issues or concerns, and to enable the Crown to test its understanding of associations and / or customary interests when issues or concerns are raised. If the associations or customary information provided by the claimant group to the Crown is sought by the overlapping groups, the Crown will ask the claimant group if the information can be provided, under the Terms of Negotiation, and in what form, to protect sensitivities.
    40. Although the Crown recognises that care needs to be taken where there are sensitivities in relation to customary information, the Crown’s preference is for information relevant to overlapping interests to be shared openly with overlapping groups and in line with the agreed Terms of Negotiation.
    41. If issues of concern are raised by an overlapping group in response to Crown engagement on the proposed redress, a process to resolve these issues is developed by the Crown and the claimant group in consultation with affected parties.
    42. The Crown’s policy is that overlapping interests should be addressed before signing an Agreement in Principle (AIP) or other equivalent document preliminary to a deed of settlement. There are, however, circumstances where it may be appropriate to sign an AIP despite outstanding overlapping issues. The Crown and the claimant group need to consider whether any prejudice arises for overlapping groups from proceeding to sign an AIP and whether any prejudice arises from delaying the signing of the AIP. In either case, the Crown and the claimant group also need to consider how any prejudice can be mitigated.
    43. If a decision is made to sign an AIP while overlapping issues are outstanding, the issues and agreed process to resolve these post-AIP should be documented, either in the AIP, or in other written form. This is to give assurance to those groups that their interests are acknowledged and there will be a process to resolve issues before initialling a deed of settlement.

    Prior to initialling of the deed of settlement

    44. Overlapping interests must be addressed to the satisfaction of the Crown prior to the initialling of the deed of settlement.
    45. If new redress or alterations to the redress package are proposed, after the signing of the AIP, then the Crown and the claimant group will engage with overlapping groups, as relevant, before decisions are made by the Crown on the final redress package to be offered for inclusion in the deed of settlement. Up until the time that the Crown and the claimant group initial a deed of settlement, the proposed redress package can be amended to take into account relevant overlapping interest considerations.
    46. The Crown may decide, based on discussion with the claimant group and engagement with overlapping groups, that it is not appropriate to offer a particular item of redress or to offer redress in the proposed form. However, the Crown will not automatically amend its offer in the absence of agreement between the claimant group and overlapping group(s). Sometimes it will be appropriate for the Crown to maintain its offer. For detail of Crown consideration, refer to the next two sections, ‘How do overlapping interests influence the redress offered by the Crown?’ and ‘What happens if overlapping interests can’t be resolved by agreement?’
    47. The time taken to complete the overlapping interests process will vary depending on the issues to be resolved. The Crown aims to undertake a robust overlapping interests process, with reasonable time provided to resolve issues. Te Arawhiti will keep the Minister for Treaty of Waitangi Negotiations informed of any overlapping interest issues and seek direction on the Crown’s proposed approach to resolving issues, as appropriate.
    48. Te Arawhiti will maintain clear records on engagement with and understanding of overlapping groups’ interests within the claimant group’s area of interest.