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Mandate • Establishing the Claim • Terms of Negotiation • Implementation • Settlement Legislation
What is Mandate?
It is the authority of the people (the wider claimant community) vested in a group of
representatives. The representatives are mandated to negotiate with the Crown a
settlement offer, otherwise known as a proposed Deed of Settlement.
The proposed Deed of Settlement offer must be taken back to the people for ratification.
Ratification is the process where the people vote to decide whether to accept or reject the
offer. Are there limitations to a Deed of Mandate?
Yes. Once obtained, the mandated representatives can only take back to the people a
proposed Deed of Settlement offer. The mandated representatives cannot bind the people
to any settlement deal. Only the people can ratify (approve) the proposed settlement
offer.
Are the mandated representatives also negotiators?
Not necessarily. Experience of other settlements demonstrates negotiation is a specific
skill and requires particular leadership and knowledge. It is practice for the mandated
representatives to appoint a "lead negotiation team" or small, dedicated and highly skilled
teams.
How large should the mandated representative body be?
It should be a size that enables the job to be done. It should not be cumbersome and have tens of people. For practical and performance reasons it would see a body of no more than 12 people.
Key mandate points are:
- Mandate is not a right, it is an obligation to the people;
- Mandate is only for negotiation of a proposed Deed of Settlement offer; and
- Mandate does not provide the representatives any rights to govern or manage post settlement.
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To begin the process, a group must ask either the Office of Treaty Settlements or the Minister in Charge of Treaty of Waitangi Negotiations (the Minister) to begin negotiations.
Before the Crown will consider negotiations the claimants must provide "sufficient" research to demonstrate that they have been harmed by Crown actions or omissions. Comprehensive negotiation refers to the desire of the Crown to ensure it has addressed all historical claims of the claimant group at the same time.
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The Crown requires the following in any settlement negotiation:
- Any settlement must cover all historical claims of a claimant group;
- Following settlement, neither the Tribunal nor the general courts will be able to
consider the issues covered by the settlement (including the validity or adequacy
of the settlement);
- Treaty of Waitangi Memorials on the titles of properties within the claim area not required for settlement will
be able to be lifted;
- Apart from continuing Waitangi Tribunal hearings, the parties do not pursue the
claim by any other means while in direct negotiation;
- Negotiations will be conducted in private and remain confidential, and media
statements will only be released when the parties agree;
- Negotiations are without prejudice (neither party is bound until the Deed of
Settlement is signed); and
- Deed of Settlement remains confidential until claimants ratify and Parliament
passes any necessary enabling legislation.
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The final step in the negotiation process involves the Crown giving the agreed redress to
the claimant group.
In addition to ratifying the Deed of Settlement, the claimant community must ratify an
organisation to hold and manage the settlement assets. A claimant governance structure
must demonstrate the following:
- Adequately represents all members of the claimant group;
- Has transparent decision-making and dispute resolution procedures; and
- Is fully accountable to the whole claimant group.
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It is important to note that a Deed of Settlement can still be subject to change if
Parliament does not accept its contents.
Settlement of the claim does not take place until Parliament has passed a law allowing it
to happen.
The passage of legislation through Parliament can be broken down into a number of
levels. This can be a time consuming process subject to delay depending on the issues.
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