Overlapping interests

1. Overlapping interests is a crucial part of every historical Treaty of Waitangi settlement. The Crown has Treaty obligations to all groups and seeks to apply the principles of partnership, protection and redress to the overlapping interests process and to Crown decisions regarding what redress is fair and appropriate to offer. Because of the diversity of interests and nuances in each negotiation, the Crown purposefully takes a flexible approach to overlapping interests that is tailored to the specific circumstances of the negotiations and relations.
2. This policy is intended to provide guidance to claimant groups in negotiations, overlapping groups and Crown agencies on the Crown’s approach to addressing overlapping interests in historical Treaty of Waitangi settlement negotiations. It replaces the overlapping interests sections on pages 53, 54 and 55 of the 2018 edition of the Crown’s guide to Treaty of Waitangi claims and negotiations ‘Ka tika ā muri, ka tika ā mua — Healing the past, building a future’ (commonly referred to as ‘the Red Book’) and the 2013 Office of Treaty Settlements policy document on overlapping claims in Treaty settlement negotiations.
3. The 2021 policy is a refinement of Crown policy on ‘overlapping interests’ (previously called ‘overlapping claims’) undertaken in response to Crown participation in Waitangi Tribunal inquiries and consideration of the Waitangi Tribunal’s findings and recommendations relating to overlapping interests. The 2021 policy has been informed by engagement with the National Iwi Chairs Forum.
4. The 2021 policy provides detail on the Crown’s overlapping interests policy and processes as at December 2021.

Review of the 2018 ‘overlapping claims’ policy

In response to the Waitangi Tribunal’s findings and recommendations relating to overlapping interests, Te Arawhiti has undertaken a review and refinement of current Crown policy on ‘overlapping interests’.

The review and refining of Crown policy were informed by engagement with the National Iwi Chairs Forum between 2018 and 2020.

The review has resulted in the 2021 policy on the Crown’s approach to addressing overlapping interests in Treaty settlement negotiations.

The Crown values the work of claimant groups and participation of other groups, whether settled or not, in the overlapping interests process. The 2021 policy confirms the Crown’s commitment to work with groups in current and future overlapping interest processes, to tailor the overlapping interests approach to the circumstances of each negotiation.

2021 updates to the ‘overlapping interests’ policy

Refinement of 2018 policy

The 2021 policy on overlapping interests is a refinement of policy — it does not represent new policy.

The updated 2021 version provides a fuller explanation of the Crown’s policy, principles and processes relating to overlapping interests than what is in the 2018 version of the Red Book. The update to policy reflects the Crown’s commitment to considering what is best practice within the policy framework.

Document changes

The name of the policy has changed from ‘overlapping claims’ to ‘overlapping interests’.

The 2021 policy replaces the:

• ‘overlapping interests or shared interest’ and the ‘exclusive and non-exclusive redress’ sections on pages 53, 54 and 55 of the 2018 edition of the Crown’s guide to Treaty of Waitangi claims and negotiations ‘Ka tika ā muri, ka tika ā mua— Healing the past, building a future’ (commonly referred to as ‘the Red Book’), and
• 2013 Office of Treaty Settlements’ policy document on overlapping claims in Treaty settlement negotiations, which was previously shared with groups in negotiations.

Ongoing policy review

As part of a commitment to best practice, Te Arawhiti expect Treaty settlement policy and processes will continue to be refined over time.

The Arawhiti is reviewing the policy and guidance on the Crown’s approach to the assessment of customary interests and associations for redress purposes, with respect to the application of the 2021 ‘overlapping interests’ policy.

Future updates

A glossary of terms used in the 2021 policy is being prepared and will be published in 2022.

5. Before describing the principles, policy and process of overlapping interests, it is useful to set out the Crown’s understanding of key terms.
6. Overlapping (or shared) interests exist where two or more groups assert customary interests or cultural or historical associations over an area or natural resource that is the subject of historical Treaty settlement negotiations. Overlapping interests can exist between a claimant group and other groups that:
   • are in Treaty settlement negotiations
   • have yet to enter negotiations, or
   • have settled their historical claims.
7. Generally, in Treaty settlements, overlapping interests processes occur between large natural groups because hapū-level interests are resolved internally within the large natural group. However, in some circumstances where there are no mandated representatives for the large natural group, the Crown and the claimant group will engage with existing representative iwi / hapū bodies (for example, Rūnanga), and Wai claimants about overlapping interests.
8. The extent of iwi / hapū rohe are defined by iwi / hapū. The Waitangi Tribunal has observed in its Ngāti Awa Raupatu Report 1999:

... the essence of Māori existence was founded not upon political boundaries, which serve to divide, but upon whakapapa or genealogical ties, which serve to unite or bind. The principle was not that of exclusivity but that of associations. Indeed, the formulation of dividing lines was usually a last resort.

Waitangi Tribunal, Ngāti Awa Raupatu Report 1999 (PDF, 3.22 MB)(external link)

9. The Crown understands ‘customary interests’ as the expression of the traditional multi-dimensional relationship of a claimant group to an area or natural resource in accordance with their tikanga. Examples of physical markers or natural resources cited by claimant groups when describing their customary interests may include tupuna maunga, awa, pā, marae and kāinga, nōhanga, mahinga kai, urupā or other wāhi tapu.
10. The Crown understands ‘association’ as the spiritual, cultural, historical and / or traditional relationship expressed by a claimant group to a site, area or natural resource. Such associations might exist as a result of a group’s customary interests and / or because a site is significant in the history of the claimant group. For example, it might be the site of a significant event that has ongoing importance. A site might also relate directly to an historical Crown act or omission for which a grievance is held.
11. The Crown acknowledges that customary interests and associations are complex, and there are different kinds and narratives of customary interests and associations articulated by groups. For instance, the Crown recognises that customary interests are not always actively maintained by groups. Groups sometimes have different views about whether the interests have been extinguished. It is not for the Crown to answer these questions.
12. The Crown considers the nature of interests and associations to be relevant to determining redress that is fair and appropriate. The Crown recognises that multiple groups may have interests or associations in the same area although the nature of these interests and associations may be different.
13. Evidence of customary interests and associations from multiple sources, including information provided by groups or independent experts, historical documents and Tribunal reports help the Crown to understand the existence and nature of overlapping customary interests and associations.
14. Where interests and associations are disputed by overlapping groups, the Crown does not consider that it can or should determine or adjudicate whether a group has a predominant interest or any exclusive status in an area. The Crown’s role is to support groups to address these issues themselves. The Crown’s approach to redress will be informed by the dialogue between groups on these issues. Where groups are unable to reach agreement about how to address overlapping interests, the Crown may need to decide on the redress it is willing to offer the claimant group.
    
    Customary interests or associations demonstrated by the claimant group is one factor informing the Crown’s decision to offer redress (as identified in the sections ‘How do overlapping interests influence the redress offered by the Crown?’, ‘Consideration of exclusive and non-exclusive cultural redress’ and ‘Consideration of exclusive commercial redress’).
15. It is acknowledged however, that overlapping groups may see the Crown’s offer of redress as a statement or recognition of mana whenua. This is not the purpose or the effect of Treaty settlements. Although the Crown will take into account groups’ statements about their interests, the settlement process is not intended to establish or recognise boundaries between groups or make determinations of mana whenua.

 

The Waitangi Tribunal has discussed the nature of Māori geographical boundaries in its Ngāti Awa Raupatu Report 1999 (page 133). In that report, the Tribunal stated ‘the essence of Māori existence was founded not upon political boundaries, which serve to divide, but upon whakapapa or genealogical ties, which serve to unite or bind. The principle was not that of exclusivity but that of associations. Indeed, the formulation of dividing lines was usually a last resort’.

Ngati Awa Raupatu Report 1999 (PDF, 3.22 MB)(external link)(external link)

The Tribunal applied this approach when considering overlapping claims between Ngāti Maniapoto and Ngāti Tama in the Ngāti Maniapoto / Ngāti Tama Settlement Cross-claims Report 2001 (page 26).

Ngāti Maniapoto / Ngāti Tama Settlement Cross-claims Report 2001 (PDF 3.15 MB)(external link)

16. Every settlement needs to include a robust overlapping interests process. The Crown is guided by the principles and guidelines it has adopted for the settlement of historical Treaty claims (refer to pages 24–26 of the 2018 Red Book) and the principles of the Treaty of Waitangi — Te Tiriti o Waitangi (the Treaty) — discussed in the following section.

Treaty of Waitangi — Te Tiriti o Waitangi — principles

17. The following principles of the Treaty are relevant to overlapping interests policy:
    • Partnership: The principle of partnership underpins the relationship between Māori and the Crown under the Treaty. Māori and the Crown have a duty to act reasonably and in good faith towards the other. This requires early and open engagement with all groups that have interests and associations in the claimant group’s area of interest. Partnership can take different forms in the overlapping interests process, for example, working with the claimant group and any overlapping groups to design the process.
    • Protection: The Crown seeks to ensure it actively protects the interests of all overlapping groups, including those groups yet to settle and settled groups and the ability of iwi and hapū to exercise their tikanga. The Crown seeks to actively preserve and promote amicable relations with, and between, groups and aims to minimise any damage to relationships. The Crown acts as best as it can to effect reconciliation between groups and assist in the preservation of all relationships.
    • Redress: The Crown accepts a responsibility to provide settlement redress for the resolution of historical grievances arising from Crown breaches, acts or omissions of the Treaty in each settlement negotiation. In making decisions about redress, the Crown needs to understand how its actions might affect the interests of a claimant group and the interests of overlapping groups. In doing so, the Crown is conscious of the need to avoid the creation of fresh injustice and the need to maintain capacity to provide appropriate redress in future negotiations. The Crown aims to reach fair and appropriate settlements relative to Treaty settlements already completed by considering a range of factors (summarised in the following Guidelines section and documented on pages 24–26 of the 2018 Red Book).

Guidelines for the resolution of historical Treaty claims

18. The Crown wants to negotiate settlements of historical Treaty claims that are lasting and acceptable to most New Zealanders. It also wants to be consistent in its approach to the many claimant groups involved in negotiations, while acknowledging that each claimant group is different. To meet these Crown settlement objectives, guidelines for the resolution of historical claims have been developed. These are set out in the Red Book 2018 on pages 24 and 25. Several guidelines are relevant to the Crown’s approach to overlapping interests:
    • Treaty settlements should not create further injustices — in practice, this means any redress or remedy should be fair for the groups concerned. In providing redress to one group, care should be taken not to harm the interests of other groups.
    • Durable settlements must be fair, achievable and remove the sense of grievance — the process of negotiation is intended to ensure that the Crown and a group sign a deed of settlement only when both parties are satisfied that it is fair, and the group agrees that their grievances will finally be settled.
    • The Crown must deal fairly and equitably with all groups — the Crown must have consistent policies and practices, and the redress for each group should be fair in relation to the redress received by others.

Principles guiding the Crown’s approach to settlement

19. In 2000, principles were developed that guide the Crown’s approach to achieving Treaty settlements that are fair, durable, final and occur in a timely manner. These are also set out in the Red Book 2018 on pages 25 and 26.
20. Principles that are relevant to the Crown’s approach to developing redress and addressing overlapping interests are:
    • good faith — the negotiating process is to be conducted in good faith, based on mutual trust and cooperation towards a common goal;
    • just redress — redress should relate fundamentally to the nature and extent of breaches suffered, with existing settlements used as benchmarks for future settlements where appropriate;
    • fairness between claims — there needs to be consistency in the treatment of groups. In particular, ‘like should be treated as like’ so that similar claims receive a similar level of redress; and
    • transparency — it is important that groups have sufficient information to enable them to understand the basis on which claims are settled.
21. These principles support the Crown guidelines for the resolution of historical Treaty claims.

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. 
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.

In the Tāmaki Makaurau Settlement Process Report 2007 (p 109), the Waitangi Tribunal recommended that the Crown apply an ‘ethic of openness’ to settlement negotiations and follow the principle that if material ‘... is to be relied upon in settlement negotiations, it is available to all ...’.

Waitangi Tribunal, ‘The Tāmaki Makaurau Settlement Process Report 2007’ (PDF 1.31 MB)(external link)(external link)

In the Hauraki Settlement Overlapping Claims Inquiry Report 2020 (p 79), the Waitangi Tribunal stated that this ‘... will allow overlapping groups to properly consider, and respond to, the nature of the claimed interest and whether it is sufficient to justify the redress offered ...’. The Tribunal also stated (p 80) that the Crown can take steps to protect the information provided by groups. 

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

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)(external link)(external link)

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. Crown support for the resolution of overlapping interests will reflect this aim. The strategy and plan will include an indicative process to resolve any issues. 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 and engaging a tikanga expert (pūkenga). Groups can contact Te Arawhiti directly for support.
34. The Crown will allow reasonable time for disputes to be addressed regarding tikanga and overlapping interests in Treaty settlement negotiations. The extent of time and effort that is reasonable to allow for this will depend on the circumstances of a particular settlement, having regard to tikanga.
35. 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?’).
36. 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.
37. 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.
38. 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.

49. When negotiating a redress package with the claimant group, the Crown applies the Crown settlement principles and guidelines (pages 24 and 26 of the 2018 Red Book), and the Treaty principles (described in the section ‘What principles and guidelines underpin the resolution of overlapping interests?’). In general, overlapping interests, including the Crown's understanding of relevant tikanga inform Crown consideration of whether redress should be offered or not, is fair and appropriate, and the type of redress (exclusive, non-exclusive or joint) that the Crown may offer.
50. The aspirations of the claimant group and the circumstances of each negotiation are considered on a case-by-case basis by the Crown. There is no one-size-fits-all approach to deciding what redress is appropriate to offer to achieve a durable settlement. The Crown considers a number of factors, including:
    • do the claimant group and any overlapping groups have customary interests and / or associations in relation to the site, area or natural resource? If yes, what is the nature of customary interests and / or associations of the claimant group and the overlapping group(s) in the site, area or natural resource?
    • how might the Crown’s decisions to offer redress affect the customary interests (including tikanga interests) and / or associations of a claimant group and overlapping groups to a site, area or natural resource? This includes protecting the ability of the claimant group to exercise tikanga.
    • what redress options are available for use in future settlement(s) with overlapping groups in the overlapping area?
    • whether it is appropriate to provide exclusive redress (to the claimant group)?
    • whether it is appropriate to provide non-exclusive redress so as not to preclude similar redress for groups that have not yet settled their claims over the same area?

51. The Crown’s approach to negotiations on governance and management arrangements for a natural resource (including a harbour) is to provide an opportunity for all groups with customary interests in the natural resource to be involved at an early stage in the negotiations. This includes groups that already have comprehensive Treaty settlements and groups that are yet to enter negotiations. The Crown expects the final arrangement to appropriately provide for the interests of each group. This approach acknowledges the contemporary relationship of the groups to natural resources and ensures a durable arrangement based on the Treaty of Waitangi (Te Tiriti o Waitangi) principle of partnership.
    
    Governance and management arrangements over natural resources are fully explained in the section Treaty settlements negotiations — natural resources redress.
    
    

    Requirement on the Crown to consider tikanga

52. The Crown acknowledges the High Court's view, as found in the Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, that there is a legal requirement on the Crown to consider tikanga, including the implications of mana whenua or other tikanga-based interests, and that the Crown may not act unreasonably having regard to tikanga, in order to act consistently with the Treaty of Waitangi. A copy of the High Court decision can be found at https://assets.maorilawreview.co.nz/ngati_whatua_orakei_trust_v_attorney-general_no.4_2022_nzhc_843.pdf(external link)
53. The High Court affirmed that these duties do not mean that tikanga determines decisions about whether to transfer a property as redress, but simply require that tikanga must be considered; the Crown ultimately makes its own decisions about whether to transfer redress and there may be circumstances in which the balance of Treaty considerations means the Crown has to make a decision in relation to Treaty settlements that is inconsistent with the tikanga of one iwi or another.
54. There are different ways in which the Crown can meet its obligation to understand, recognise and respect tikanga, both in terms of its processes and decisions.
55. In terms of process the Crown’s preference is that the claimant group lead processes relating to overlapping interests in accordance with their tikanga, and consistent with the Treaty settlement framework. The Crown’s role is to support claimant groups through providing claimant funding, and funding research for groups, mediation or facilitation. Crown support includes allowing reasonable time for tikanga-based processes to occur.
56. The Crown will consider how the Crown’s decisions might affect the tikanga interests of claimant groups. Evidence of tikanga from multiple sources, including information provided by groups or independent experts, historical documents and Waitangi Tribunal reports will inform the Crown’s understanding and decision-making.
57. The Crown may engage independent experts (pūkenga) with expertise in tikanga Māori, including the history and traditions of the relevant groups, to provide guidance to the Crown on understanding the tikanga implications of its proposed decisions. The role of tikanga experts includes providing assurance that officials have reflected accurately what the Crown has heard from the groups concerned about the tikanga impacts of the redress proposals as well as to provide advice on any other relevant tikanga matters. The judge in the Ngāti Whātua Ōrākei decision commented that the approach the Crown takes to any given situation must be “context-specific”.

Consideration of exclusive and non-exclusive cultural redress

52. Crown decisions to offer cultural redress are based on recognition of demonstrated customary interest (relationship) or associations to a site, area or natural resource within the area of interest.
53. Exclusive cultural redress is generally considered where a claimant group has expressed a strong customary interest or association (spiritual, cultural, historical and traditional association) or relationship to a site of special significance, that warrants exclusive cultural redress (taking into consideration any information about the customary interest or association of overlapping groups with that site). An example of exclusive cultural redress is the vesting of cultural redress properties in a single claimant group.
    
    
54. Sometimes the Crown may consider joint cultural redress or provide exclusive cultural redress to more than one group in the same area where the groups have a strong customary interest or association that justifies this. For example, a cultural redress property may be jointly vested in the governance entities of two or more claimant groups, as tenants in common, with undivided allocated shares. Alternatively, the Crown may exclusively vest one of several discrete cultural redress properties, located in the same vicinity, in each governance entity.
    
    
55. Alternatively, where overlapping interests exist, the Crown may offer non-exclusive redress, such as statutory acknowledgements and relationship agreements, so as not to preclude similar redress being offered to overlapping groups over the same area.
    
    
56. All forms of cultural redress are explained fully in the Red Book PDF [PDF, 4.3 MB].

Consideration of exclusive commercial redress

57. Crown decisions to offer commercial redress (property or rights) within the area of interest are generally aimed at a distribution of assets across claimant groups that will contribute to the economic and social aspirations of each claimant group. Commercial property redress is generally exclusive. If there is a particular cultural association with the location of a prospective commercial redress property, that association will also be carefully considered. Commercial redress is explained fully on page 81 of the 2018 Red Book.
58. In developing the commercial redress package, consideration at a high level is given to whether there is a customary interest or association in the area that warrants the commercial redress. For example, if several groups seek redress for Crown Forest licensed land (CFL land) in the same area and claim an interest in that land, the Crown will first consider whether each group has demonstrated a customary interest or association in that land. If a customary interest or association is demonstrated, the Crown then considers:
    • the potential availability of other CFL land for each group;
    • the relative size of likely redress for the Treaty claims, given the nature and extent of likely breaches;
    • the nature of the customary interests or associations in the land; and
    • what uncertainties are involved.
59. Where uncertainties exist, such as conflicting historical accounts of association with the land, the Crown is likely to take a cautious approach to offering CFL land redress.
60. The relative weightings given to each of these considerations will depend on the precise circumstances of each CFL land case. Broadly, a claimant group would only have to show an interest or association in the CFL land to be eligible to receive that land as redress. The nature of relative customary interests or association in the land is only likely to be the primary factor when there is limited CFL land available.
61. The Waitangi Tribunal has found that this approach to addressing overlapping interests in CFL land is consistent with the Treaty of Waitangi and its principles.

In the Waitangi Tribunal’s Ngāti Awa Settlement Cross-Claims Report 2002 (pp 77–78), the Tribunal states:

‘... the Crown has said, and we accept, that the Government has arrived at a policy with regard to the allocation of interests in Crown forest licensed land that does not in all cases involve assessing the relative strength of customary interests in that land.

Indeed, the relative strengths are likely only to be a dominant concern where those potentially entitled to be granted interests in certain Crown forest licensed land are predicted to have difficulty in demonstrating a threshold interest in any other areas of licensed land.

The clear policy underpinning this is the desire of the Crown to achieve equity between claimants at the macro as well as the micro level.’

Read the report on the Waitangi Tribunal website: The Ngāti Awa Settlement Cross-Claims Report (PDF, 1.36 MB)(external link)

62. Sometimes it is not possible for groups to reach agreement about how to resolve their overlapping interests in redress offered by the Crown, despite the undertaking of processes by the claimant group and the Crown described in the section ‘How does the overlapping interests process work?’
63. If there is no prospect of agreement within reasonable timeframes, the Crown may, as a last resort, have to make a decision about whether to maintain the offer of the redress. Any such decision is guided by the Crown settlement principles and guidelines (pages 24–26 of the 2018 Red Book), Treaty principles described in the section ‘Treaty of Waitangi’ and is also informed by consideration of the factors outlined in the section ‘How do overlapping interests influence the redress offered by the Crown?’, including the overlapping interests process undertaken to date and the views and information shared by groups with the Crown.
64. If such a decision is required, the Crown will invite the claimant group and overlapping groups to provide comment and information on the issue and the Crown’s proposal for resolution. In general, the Crown will allow at least three weeks for formal responses to Crown requests for comment and information. However, timeframes will depend on the specific negotiations and agreed process. Meetings may be arranged between the Crown (the Minister for Treaty of Waitangi Negotiations and / or officials from Te Arawhiti) and affected groups to discuss the issue, interests and the Crown’s proposal.
65. The comments and information provided by groups will inform Crown decision-making on whether to amend or confirm the redress for inclusion in the agreement in principle or the deed of settlement. Sometimes the Crown may seek independent advice from individuals or groups with expertise in tikanga Māori including the history and traditions of the relevant groups before making a decision.
66. The Crown’s approach to addressing overlapping interests recognises that overlapping groups will not always be able to reach agreement and the settlement process cannot be held in hiatus indefinitely due to stalemate. This would not be fair to the claimant group, depriving them of the benefits of settlement. The Crown seeks to ensure a fair, robust and transparent overlapping interest process is undertaken that is consistent with Treaty principles and provides for the best opportunity for the resolution of issues raised by overlapping groups.

67. If you want to discuss your interests in specific Treaty settlement negotiations, you can: 

• email or phone Te Arawhiti: Contact us — Te Arawhiti: The Office for Māori Crown Relations
• contact the mandated representatives representing the claimant group in negotiation.

68. Other sources for information on overlapping interests can be found in:

• Aratohu Mō Ngā Rōpū Kaitono — Guide for Claimants Negotiating Treaty Settlements (PDF 1.32 MB)(external link)(external link) — A guide prepared by the Crown Forestry Rental Trust for groups negotiating settlements.

• Waitangi Tribunal reports — Waitangi Tribunal website(external link)(external link) — The Waitangi Tribunal has made recommendations and findings in specific settlement inquiries regarding Crown engagement and Treaty principles. Some of the settlement inquiries reports are available, including: 
  • Waitangi Tribunal, ‘The Ngāti Maniapoto / Ngāti Tama Settlement Cross-claims Report.’ (Wellington: Legislation Direct, 2001. PDF 3.15 MB)(external link)(external link)
  • Waitangi Tribunal, ‘Ngāti Awa Settlement Cross-claims Report 2002’ (PDF 1.36 MB)(external link)(external link)
  • Waitangi Tribunal, ‘Ngāti Tūwharetoa ki Kawerau Settlement Cross-claim Report 2003’ (PDF 4.87 MB)(external link)(external link)
  • Waitangi Tribunal, ‘The Te Arawa Settlement Process Reports 2007’ (PDF 5.50 MB)(external link)(external link)
  • Waitangi Tribunal, ‘The Tāmaki Makaurau Settlement Process Report 2007’ (PDF 1.31 MB)(external link)(external link)
  • Waitangi Tribunal, ‘The Hauraki Settlement Overlapping Claims Inquiry Report 2019’ (PDF 1.31 MB)(external link)(external link).

Questions and answers

Answers to common questions about the 2021 Overlapping interests policy.

To read more about the refinement and document changes to the 2018 Red Book — ‘Ka tika ā muri, ka tika ā mua — Healing the past, building a future’, go to the ‘Overlapping interests’ section called Preface.

• Policy refinement and application
  • What policy has been clarified?
  • How will the policy statement be applied? Will the Crown change how it operates?
• Claimant engagement and use of tikanga
  • How much influence will groups have before the Crown offer is made?
  • Does the Crown require a tikanga-based process of engagement by the claimant group?
  • What is the Crown looking for in a tikanga-based engagement process?
• Decision making and redress
  • Does the Crown consider tikanga when making decisions about redress to offer to a claimant group?
  • What does ‘overlapping interests must be addressed to the Crown’s satisfaction’ mean?

Policy refinement and application

What policy has been clarified?

The 2021 policy clarifies the Crown’s policy, principles and processes in terms of:

• the definition of overlapping interests (previously referred to as ‘overlapping claims’)
• the Crown’s understanding of customary interests and associations
• engagement and information-sharing
• tikanga-based resolution processes, and
• matters considered by the Crown when negotiating a redress package and making decisions about redress to offer.

How will the policy statement be applied? Will the Crown change how it operates?

The Crown is focused on applying the policy and principles to the specific circumstances of negotiations (both current and future). The Crown will continue to work with claimant groups to develop and implement a tailored approach to overlapping interests in each negotiation.

The Crown endeavours to be proactive and transparent in its processes, particularly in engagement prior to a Crown offer, information-sharing and support for tikanga-based resolution processes.

Claimant engagement and use of tikanga

How much influence will groups have before the Crown offer is made?

The Crown recognises the importance of engagement by the claimant group and the Crown with overlapping groups prior to a Crown offer being made. The 2021 policy clarifies the Crown’s expectations for claimant groups, and the Crown’s obligations.

The outcome of engagement with overlapping groups will influence Crown consideration of redress to offer and potentially reduce engagement later in the negotiations.

Does the Crown require a tikanga-based process of engagement by the claimant group?

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. However, it is the decision of iwi and hapū to choose to engage in a process based on their tikanga.

What is the Crown looking for in a tikanga-based engagement process?

Each tikanga-based overlapping interests process will depend on the groups involved and how they approach it.

Te Arawhiti’s role is to support groups to reach agreement on solutions to any issues. The Crown’s role depends on what the groups want. The Crown can support engagement between groups, at any stage of the overlapping interests process, by funding research for groups, or arranging mediation or facilitation. Groups can contact Te Arawhiti directly for support.

The Crown seeks clear written documentation of the outcomes of engagement, including any agreement between the claimant group and overlapping groups.

The Crown is looking to see what efforts have been made by all groups to resolve issues. The Crown expects claimant groups to engage with overlapping groups but cannot require engagement to occur. There is no benchmark for a resolution process.

Te Arawhiti will report to the Minister for Treaty of Waitangi Negotiations on the status of overlapping interests and the outcomes of engagement. The status of overlapping interests is a factor influencing what redress the Crown offers and whether it proceeds to a settlement milestone or not.

Decision making and redress

Does the Crown consider tikanga when making decisions about redress to offer to a claimant group?

Yes, the Crown will take into account groups’ statements about their interests, including tikanga, when making decisions about redress to offer. This is in the context of a number of factors being considered (some factors are listed under the heading ‘How do overlapping interests influence the redress offered by the Crown?’ in the 2021 policy).

Any decision is guided by the Crown settlement principles and guidelines, Treaty principles, the overlapping interests process undertaken to date, and the views and information shared by groups with the Crown. Sometimes the Crown may seek independent advice from individuals or groups with expertise in the history and traditions of the relevant groups before making a decision.

What does ‘overlapping interests must be addressed to the Crown’s satisfaction’ mean?

Before the Crown decides to initial the deed of settlement with a claimant group, the Minister for Treaty of Waitangi Negotiations makes a decision on whether overlapping interests are addressed to the Crown’s satisfaction and, if needed, in the context of outstanding overlapping issues, what redress is appropriate to offer.

The Crown seeks to undertake a fair, robust and transparent engagement process to facilitate agreement between the claimant group and overlapping groups on solutions to issues raised by overlapping groups. The Crown considers the overlapping interests process undertaken to date, including any agreements between groups or issues raised by groups and efforts by parties to resolve issues.

If agreement cannot be reached between groups, and decisions are required, the Minister for Treaty of Waitangi Negotiations will consider further factors, including:

• the views and information shared by groups with the Crown, including on their interests or associations
• evidence collated by the Crown from multiple sources, and
• Crown settlement principles and guidelines (outlined in the Red Book), and the Treaty principles and ‘overlapping interests’ policy.