Part 3: Understanding settlement responsibilities

3.1
Deeds of settlement and settlement Acts set out which organisations are responsible for fulfilling a settlement and providing the associated redress. We wanted to assess how well these public organisations understand the settlements and settlement commitments that they are responsible for.

3.2
We expected public organisations to understand their responsibilities and that there would be appropriate support to assist them with this if they needed it.

3.3
We found that deeds of settlement and settlement Acts are clear. We also found that general guidance is available to help core Crown agencies understand settlements and settlement commitments. Public organisations are often involved in negotiating the settlements that they will be responsible for.

3.4
Despite this, we found that many public organisations have a mixed understanding of their responsibilities and that this has contributed to public organisations sometimes failing to provide redress as intended. We discuss in detail in Part 4 how well-positioned public organisations are to meet their commitments.

3.5
Both post-settlement governance entities and public organisations told us that the way public organisations approach their commitments does not consistently reflect an understanding of the importance of each settlement's intent. Public organisations are often unaware of the responsibilities that other public organisations hold, or who they should work with to achieve each settlement's intent.

3.6
In our view, a key factor is the lack of any framework to support or enable public organisations to co-ordinate their work.

Guidance and support are available but limited for non-core Crown agencies

3.7
Te Arawhiti and its predecessor agencies produced guidance and advice designed to assist core Crown agencies with understanding settlements and settlement commitments. This included:

• summaries of each deed of settlement, including summaries of historical accounts and the redress provided; and
• implementation plans for each settlement Act, which were provided to core Crown agencies and outlined those organisations' responsibilities and immediate priorities once legislation had been passed.

3.8
He Korowai Whakamana also provides guidance and tools to support the fulfilment and durability of settlements. Te Arawhiti issued and maintained:

• Cabinet-endorsed expectations applying to core Crown agencies about how to manage and meet settlement commitments (see paragraphs 2.18-2.21);
• guidance explaining the process for resolving settlement issues through the resolution pathway (we discuss the resolution pathway in Part 5); and
• guidance about how to update the status of commitments on Te Haeata (we discuss Te Haeata in Part 6).

3.9
As mentioned in paragraph 2.20, the Cabinet-endorsed expectations emphasise that settlements' "holistic intention" is to form the basis for a renewed relationship between the Crown and iwi and hapū. Therefore, core Crown agencies are expected to meet their individual commitments and to seek wider opportunities to form enduring Treaty partnerships.³⁹

3.10
Te Arawhiti also provided targeted advice and support to core Crown agencies about understanding settlements when those agencies requested it. The Crown Law Office provides legal advice to core Crown agencies as needed, including advice about interpreting deeds of settlement and settlement Acts.

3.11
In our view, the guidance that is available and the advice and support that is provided is useful. He Korowai Whakamana's emphasis on building capacity and targeted support reflects the key principles we expect to see in a framework attempting to shift behaviour and encourage compliance.

3.12
The Cabinet-endorsed expectations for core Crown agencies contain information that is likely to be useful for non-core Crown agencies. However, non-core Crown agencies do not have access to targeted advice and support under He Korowai Whakamana to help them understand settlements and settlement commitments when needed.

3.13
The responsibilities of non-core Crown agencies – including Crown entities and local authorities – represent about one in five of the contractual and legal commitments listed in Te Haeata.

3.14
Some Crown entities are substantial landholders that are responsible for significant land redress, including the New Zealand Transport Agency, Health New Zealand, and Kāinga Ora – Homes and Communities.

3.15
Some of the other commitments that these organisations are responsible for are comparable to core Crown agencies' responsibilities, such as relationship agreements. However, other redress is unique, such as obligations to consult about consents in an area of interest of iwi or hapū.

3.16
Lack of access to more targeted support and advice through He Korowai Whakamana means that these organisations, which also have contractual and legal obligations under settlements, cannot routinely access help with understanding their commitments.

Public organisations' understanding is still variable

3.17
The public organisations we spoke with had a variable understanding of their commitments. For example, some public organisations:

• were not aware that they were responsible for commitments, including after Te Haeata began being used as a monitoring tool;
• held conflicting information about the status of commitments; and
• had a poor understanding of their commitments' requirements, resulting in failure to meet them.

3.18
Te Arawhiti acknowledged that it could have improved how it informed public organisations that were not closely involved in negotiations of the likely scope of settlements to better enable them to prepare for their responsibilities. However, it also pointed out that public organisations are often directly involved in settlement negotiations for redress relevant to them.

3.19
We acknowledge that the volume and complexity of redress has increased over time. However, public organisations now have more than 30 years of collective experience in negotiating and fulfilling settlements. Settlement commitments are also set out in deeds of settlement and through legislation, which public organisations should be aware of (as with any legislation).

3.20
Similarly, although some public organisations acknowledged the significance and intent of settlements in their strategic intentions, and many referred to it in internal documentation we saw and in their interviews with us, both post-settlement governance entities and public organisations told us that the way public organisations approach commitments does not consistently reflect this.

3.21
We saw isolated examples of public organisations co-ordinating their work on providing settlement redress. For example, Land Information New Zealand told us about an instance where a post-settlement governance entity would not engage on a particular commitment until another public organisation had transferred a property to it. Land Information New Zealand said it worked with the other public organisation to transfer the property so that it could fulfil its own commitment to the post-settlement governance entity.

3.22
However, we did not see public organisations consistently considering the interdependencies between their own commitments and commitments that others are responsible for. Instead, public organisations typically approach settlements on a commitment-by-commitment basis.

3.23
Post-settlement governance entities told us that they think that public organisations tend to see settlements as a series of transactions rather than as supporting a broader and more strategic relationship between iwi and hapū and the Crown.

3.24
This tendency has sometimes meant that, when there is an issue with meeting one commitment, public organisations do not understand whether other issues have arisen or how the post-settlement governance entity might experience cumulative issues with settlement commitments.

3.25
For example, we were told about a situation where Land Information New Zealand did not transfer title for part of the Riverhead Crown forestry licensed land to Te Kawerau Iwi Settlement Trust in the required time frame.

3.26
When Land Information New Zealand began corresponding with the trust to resolve the issue, it did not acknowledge a significant issue another public organisation also had with providing commercial redress under Te Kawerau ā Maki's settlement.

3.27
In correspondence we saw, Te Kawerau Iwi Settlement Trust pointed out that the cumulative impact of issues with commercial redress included not being able to "provide commercial, cultural, or social benefits for members" because of lost investment opportunity.

3.28
Te Kawerau Iwi Settlement Trust told us that these repeated failures left it with the impression that public organisations did not respect the standards agreed in its deed of settlement.

3.29
Sometimes, post-settlement governance entities have had to inform one part of the public sector what another part of the public sector has failed to do and explain the impact that multiple issues are having on the settlement's overall health.

There is no framework for how to achieve holistic intent

3.30
To provide redress and for each settlement to be durable, public organisations need to understand how to work collectively to give effect to settlements' "holistic intention".⁴⁰ However, there is no framework to support public organisations to do this well.

3.31
Post-settlement governance entities we spoke with emphasised that settlements establish a foundation for iwi and hapū to achieve their aspirations. They also form a basis for them to re-engage with the whole public sector on a new footing.

3.32
Te Uru Taumatua told us that settlements should empower iwi "as agents of their own change". Te Uru Taumatua expected that the settlement would change the way that public organisations engaged with it as the representative of Tūhoe. It expected the settlement to encourage more co-operative and co-ordinated relationships. However, in its view, this has not happened.

3.33
Cabinet-endorsed expectations state that a renewed relationship and achieving holistic intent might mean that public organisations need to consider how to work with post-settlement governance entities "beyond specified redress to enhance the Māori Crown relationship and achieve mutual objectives".⁴¹

3.34
In 2022, Cabinet strengthened Te Arawhiti's oversight role for all settlements. He Korowai Whakamana was intended to support public organisations to fulfil their commitments generally. However, it does not assign Te Arawhiti or any public organisation accountability for overseeing and monitoring whether each settlement's overall intent is being achieved or supporting public organisations to do so.

3.35
In our view, although oversight, monitoring, and escalating and resolving issues are important for meeting individual settlement commitments, more focus is needed on supporting public organisations to work together to fulfil each settlement's intent.

3.36
In our other work, we have said that the public sector often finds it difficult to work collaboratively, even when this is consistent with the intent of a work programme or of legislation.⁴² Public organisations told us that they felt that stronger system leadership is needed to support ongoing improvement.

3.37
We agree. More thought needs to be given to what is individually and collectively expected of public organisations to achieve settlements' overall intent. In our view, this is needed to enable the strategic co-ordination that is critical to the durability of settlements and to realising their opportunities.

3.38
We consider that, to achieve the holistic intent of settlements, public organisations need to:

• understand the settlement's context, the parties involved, and the status of all commitments that make up a settlement;
• understand potential or actual interdependencies between commitments;
• co-ordinate effectively to provide redress, engage with post-settlement governance entities, and share good practice;
• take opportunities to create enduring partnerships with post-settlement governance entities; and
• promptly identify and escalate any issues that might affect a commitment or might conflict with the intent of the settlement.

39: Te Arawhiti (2024), Guidance for Crown: Crown expectations for Crown Treaty settlement commitments, page 3, at tpk.govt.nz.

40: Te Arawhiti (2024), Guidance for Crown: Crown expectations for Crown Treaty settlement commitments, page 3, at tpk.govt.nz.

41: Te Arawhiti (2024), Guidance for Crown: Crown expectations for Crown Treaty settlement commitments, page 3, at tpk.govt.nz.

42: For example, see Controller and Auditor-General (2023), How well public organisations are supporting Whānau Ora and whānau-centred approaches, paragraphs 4.71-4.78 and Controller and Auditor-General (2021), Working in new ways to address family violence and sexual violence, pages 3-4, at oag.parliament.nz.