How will the current legal aid changes affect my Treaty negotiations claim?

From 1 July 2011 legal aid funding that has been available for settlement negotiations was transferred to the Office of Treaty Settlements for allocation as claimant funding. Consequently Miriama and her whanau (as claimants) must make an application for funding to the Office of Treaty Settlements.

For those who were already receiving legal aid funding at 1 July 2011 there will be a six month transitional period, where they will continue to receive legal aid.

Who is entitled to make an application to the Office of Treaty Settlements?

Under the new regime, the claimants must make an application to the Office of Treaty Settlements for funding. In addition, the claimants will be responsible for determining how funding is spent.

What about making a claim to the Waitangi Tribunal?

Claims progressing through the Waitangi Tribunal will not be affected by the changes, however legal aid will now be administered by the Ministry of Justice, rather than the Legal Services Agency.

Claimants can make an application for funding, stating their name and the details of their Treaty claim.  Of note, claimants may be asked if there is any other funding available.  Included on the application form will be the name of the lawyer who is representing the claim.  Your lawyer will fill in the parts of the application form about your case and about why legal aid should be granted. They will also submit your legal aid application on your behalf.

Instead the goal has been moved forward to 2016.

Our experienced Team can assist you and your group with preparing for and managing the negotiations process.

Mr Ronald Crosby has a legal background. He has specialised in Maori interests in resource management.

Mrs Kaa Williams has been teaching te reo Maori for 30 years.  In 2009, Mrs Williams received the Queen’s Service Order for services to Maori.

Dr Monty Soutar, Kihi Ngatai and Basil Morrison have also been reappointed as Tribunal members.  Members serve for a term of three years, each bringing their individual backgrounds, experience and expertise to the Tribunal panels which inquire into Treaty of Waitangi Claims.

A mandate is where the Claimant group gives authority – a “mandate” – to a representative body or individuals (mandated representatives) to negotiate the terms of the settlement agreement with the Crown.

Mandate remains a very difficult and highly controversial issue.  It is important to ensure that any mandate is properly obtained, and that the procedures involved are robust.  The mandate process will be scrutinised by the Crown and also possibly by a Court if there are any challenges to a mandating process.  The process for mandate needs to be:

• Well thought out;
• Carefully considered;
• Appropriately applied; and
• Pre-approved by the Crown.

Mandate is also increasingly becoming an issue before the Waitangi Tribunal.  Since not all claimants can present their claims these days, the question of who has speaking rights becomes more important. 

Mandate is important in both Negotiations and Tribunal matters in that it allows:

1. The Claimant group to use its resources efficiently;
2. The mandated group to administer a claim on behalf of an iwi, hapu or whanau group and/or authority to negotiate a claim on behalf of a Claimant group; and
3. A claim to remain cohesive.  For example, even once Mandated Representatives have a valid mandate they need to maintain the mandate from the group throughout the negotiations.  Therefore ongoing  internal communication is critical to the success of a settlement which may well take several years.

Our experienced Team can assist with any advice you may require about mandate and the mandate process.

What requirements does my claim have to meet?

To enter into direct negotiations, the Crown must accept that your grievance is well founded.  Your claim does not have to go through the Waitangi Tribunal process first, but must be well set out and supported by quality research.

Will the Crown negotiate with me alone?

The Crown’s policy is to negotiate with large natural groups of claimants with related tribal interests.  You will probably be required to work together with other claimants.

Who represents my claim?

Representatives must be given a mandate by the claimant community, which must then be approved by the Crown following an extensive process.  The representatives are required to communicate with claimants throughout the negotiations process.

Who represents the Crown?

The Office of Treaty Settlements (“OTS”) is a Crown body that reports to the Minister of Treaty of Waitangi Negotiations (currently the Honourable Chris Finlayson).  OTS negotiates settlements and coordinates other Crown bodies involved.

Do I need to fund the negotiations?

Currently, funding for legal services is available from the Legal Services Agency.  The Government plans to change this to OTS later in the year, which already funds most of the negotiations process.

Preparing for negotiations can be a difficult process, and claimants will have to make big decisions and deal with complex issues and documents.  It is therefore important to get sound professional advice from experienced experts prior to, and during, the negotiations process.

Your lawyer will notify you of all documentation received and usually copies will be sent to you for your own records.  As time progresses, the file starts to swell and the shelf (if you have one) starts to sag.  Here are 5 handy tips to help you keep on top of managing your papers.

System – Devise a system that works for you from the start and stick with it.  Set up a dedicated bookshelf, area of the house, or office, where all claim documentation is stored, and explain to others how your system works.  Everyone involved then knows how it works and can keep the system going.

Read – Be vigilant and methodical and read all documentation promptly.  This will make you aware of any deadlines or urgent matters but will also help to determine relevance.  This also means you will keep up to speed with how things are progressing and will make filing the document easier.

Sorting – You will receive many different types of documents.  Keeping folders with dividers (or separate colour-coded folders) separately for these documents is best.  For example keep letters separate from research reports and store correspondence in data order.  Reports and submissions are usually stored in the record of inquiry index number given by the Tribunal (found in the top right hand corner of the front page of the document).  This will make referring to these documents, when needed, much easier.

Index – Keep and regularly update an index.  This will help you keep track of what documents you have and where they can easily be found.  This is also very important for others who may need to locate documents if you are not available.  Your lawyer can supply the latest record inquiry index.

Update – Update files regularly.  Some documents may need to be kept forever.  Some may not.  Always check with your lawyer before disposing of any claim documents. 

If you are just commencing a claim, we recommend that you begin now with a good filing system.  If your claim is underway, if you have not done so already, you will need to start sorting, indexing and updating without delay.

The Crown Forestry Rental Trust (“CFRT”) funds and manages most projects.  You need to be ready when they offer to consult on the research programme and topics, the historians who they think are best suited to each project, and the report as it is being written.

CFRT’s quality control should ensure the historian has:

• Professional research qualifications;
• Experience writing substantial research reports to a professional standard;
• A track record in the relevant field and knowledge of the topic;
• A proven ability in giving evidence before the Tribunal and coping with cross-examination; and
• Rapport with clients (i.e. your group).

You need to ask, can they:

• Tell your story fully and accurately?
• Deal with the oral traditions of your people, where applicable?
• Manage and absorb the complex documentary sources in archives and libraries?
• Present your story well for the people and the Tribunal?
• Operate within deadlines?
• Consult with and receive information and feedback from claimants?
• Remain impartial as an expert witness?

Your group then needs to:

• Provide as much information and feedback as possible within the project’s parameters;
• Designate a contact person or committee;
• Ask for your lawyer’s assistance in ensuring research is relevant to your claim;
• Keep to deadlines too;
• Respect the historian’s professionalism and impartiality.

Lawyers engaged in the Waitangi Tribunal process should be approved as providers by the Legal Services Agency.  You should choose someone with the necessary experience to assist you, and capacity to undertake the many technical aspects of presenting and negotiating claims.

If you are considering instructing, or have instructed, a lawyer to act on behalf of your Treaty claim, there are several things you can do to help your lawyer to help you:

Give clear and concise instructions.  Explain your issues and goals to your lawyer to enable them to advise you.  Your lawyer cannot achieve your desired results if they do not know what it is you want them to do.

Provide your lawyer with all information relevant to your Treaty claim.  This will enable them to progress your claim within the appropriate inquiry district(s).

Keep your lawyer informed.  To help you properly your lawyer needs to have the full picture.  Make sure you tell them about any relevant developments and changes affecting you and your claimant group, especially if it might affect how the claim is progressed.

Quickly deal with any tasks and documents your lawyer gives you.  This will enable them to progress matters efficiently.  Furthermore, the nature of the process means that your urgent instructions may be required.  Your lawyer will need your help to protect your interests and progress your claim.

Keep your lawyer up-to-date with your contact details and the best way to contact you.  Inform them immediately if there are any changes.  Your lawyer cannot advise or assist you if they cannot contact you!

Ask questions.  If you do not fully understand something it could be important that your lawyer knows this.

Discuss costs.  Most Treaty claims are funded by the Legal Services Agency and claimants are not usually liable to pay the costs back.  You should discuss any queries or concerns you have with your lawyer.

Try to make yourself reasonably available for phone calls and meetings.  While engaging a lawyer should reduce your workload, claimants will still need to be involved in many tasks, many of which will have deadlines.

Remember, your lawyer is there to help and advise you!  However, lawyers will need your help so they can assist you achieve the best possible results from your Treaty claim.

Following these steps will help ensure that your best claim is put forward most effectively and will help you achieve a successful outcome:

Know what you want

You should, as a claimant community, have clear ideas of what you want to achieve out of the claim process.  Do you want an opportunity to be heard?  A full Tribunal inquiry?  Or an efficient directly-negotiated settlement?  Whatever the goal is, simply having one will ensure that when times get difficult, claimants know where they are going and why.

Be aware of the process

Both Tribunal hearings and direct negotiations are complex and lengthy processes.  You also need to be aware of the implications of each for you and your claimant community.

Legal representation

Get legal representation.  Factors that should be considered when choosing your lawyer include a proven track record in the Treaty field, an ability to communicate complex issues in lay terms, and capacity to deal with the wide range of technical tasks.  Having excellent legal representation will mean that the complex Tribunal process can be effectively navigated for your benefit by professional advisors who know what they are doing because they have done it for many groups before.

Excellent historians

Ensure that you have expert witnesses.  You should have lines of communication with the Waitangi Tribunal and the Crown Forestry Rental Trust so that you can ensure historians who will be doing research for you are the best available.  Make sure you meet with them before they start researching your important claim.  Your lawyer will be able to assist you with this.

Claims committee

Appoint the right people to your claims committee.  The early establishment of a claims committee is important.  Ideally, they should have a mixture of skills including proven leadership qualities and expertise in a field such as finance, business, communications and tikanga.  In addition, because the claims process takes years, members must be committed for the long haul.

Communications strategy

Ensure that there is an effective communication strategy to keep the claimant community informed.  A robust claims co-ordination process will ensure that people are included and will help unify the claimant community.

Working with others

Establish lines of communication now for working with other claimant groups.  You can then identify issues in common and avoid wasting energy during Tribunal hearings on airing disagreements.  Remember, Treaty claims are against the Crown and is about its actions, not other Maori groups.  Working with other claimants to collectively present your case focused against the Crown is essential.

Prepare for the long haul

A Treaty claim hearing and negotiation process is lengthy.  Successful claimants and claims need people with stamina and commitment, and claimant groups with positive and strong relationships, all focused on the key issues.

Life after hearings

Once hearings have finished, there will be a delay before the Tribunal’s report is released.  Use that time to plan for the next phase of the process – negotiating with the Crown.  This is also the time when it is vital that the claimant community be kept informed about what is happening so that the group has more chance of sticking together for the common goal.

Chief Judge Wilson Isaac and Deputy Chief Judge Caren Fox have been appointed as Presiding Officers for Taihape and Porirua ki Manawatu respectively.  Professor Pou Temara is the first of the Tribunal members to be announced for Taihape, with the remaining members for both districts yet to be appointed.

Both districts are entering the early stages of planning and research development.

If you think you may have a Treaty of  Waitangi claim in these areas, or for more information on the claims process, contact Dr Bryan Gilling at bgilling@raineycollins.co.nz.