Blocking Treaty Payments: Has Government Thought It Through?
The government may be exposing itself to more than mere criticism from its withholding of the Tainui settlement
instalment warns ACT Justice Spokesman, Stephen Franks.
“New Zealanders need assurance that the government won’t be double invoiced for settlement money that gets squandered or
“In April this year I asked the Minister and the Office of Treaty Settlements what they were doing to ensure taxpayers
did not have to fund the same claims time and again for that reason. The answers were fudge. Nobody is accepting
responsibility. Answers to Select Committee questioning today were no more reassuring.
“Successive Ministers have been careful about deciding who has the mandate to negotiate on claims over people wronged
who died generations ago. Reaching agreement with the wrong parties, especially when there is dispute among claimants,
will expose New Zealanders to further claims.
“But the legal risk may have been increased by the Minister’s fumbling with Tainui over the weekend. Under existing law
the Crown could be liable for settlement funds lost if payments go to poor stewards.
“The legal question is whether it is foreseeable that the recipients are inappropriate. By first withholding, then
releasing payment without clear assurance that funds management is safe, the Minister could be snookering the Crown. How
will the government resist liability claims for settlement funds lost by Iwi, when it has now shown its knowledge of the
problems, as well as its power to withhold legislated settlement money.
“I have no confidence that the Minister has thought this through fully. It was plain when the Justice and Electoral
Select Committee raised the issues with the Ministry of Justice earlier this year, that strategies and solutions in this
area were not on their priority list.
“This government usually ducks hard questions if they relate to Maori. But it will do no-one any good if the Crown has
to pay again. People who waste settlement payments will just bring unfair dishonour to those who should have got the
benefit,” said Stephen Franks.
Attached Press Release From 6 April
Will The Crown Have To Replace Lost Treaty Settlements?
ACT Justice Spokesman, Stephen Franks, today said he was appalled to find that the Government had not had advice on the
risk of having to replace lost Treaty settlement funds if iwi lose the money.
Stephen Franks raised his concerns in the Justice and Electoral Select Committee’s Financial Review of the Ministry of
Justice which was released today.
Mr Franks said the Ministry of Justice was clearly aware there was a risk. “If Maori miss out on benefiting from Treaty
Settlements because of imprudent investment by iwi bosses they may, even under existing law, hold the Crown liable. This
could apply if it is foreseeable that the particular iwi are inappropriate stewards of settlement funds.
“Justice Department officials told the Justice & Electoral Select Committee that ‘accountability and transparency’ requirements had been developed for Treaty settlement
processes. But they had not gone further to work out the risks of being held responsible.
“This is irresponsible to other New Zealanders, but also to the members of iwi. Their mana will be trampled if
predictable scams and high risk ventures mean they are left with nothing but ashes. The Alaskan natives went through
this experience nearly 30 years ago. ‘Closing the gaps’ in Alaska may have been set back by generations as a
“Te Ohu Kai Moana (Treaty of Waitangi Fisheries Commission) is serious about ensuring robustness in the recipients of
quota benefits. I understand no claimant organisation has yet fully satisfied the Commission’s accountability and
“We need urgent reassurance that the Office of Treaty Settlements and the Ministers in charge of Treaty negotiations are
being at least similarly careful about these issues.
“As a lawyer I am only too well aware of the inventiveness of some judges. They like to impose liabilities on anyone
other than those who author their own misfortune. In this case, however, if a fragile collective organisation gets a
large settlement and blows it, there would be real moral culpability on the Crown.
“This Government is fostering retrospective liability for tobacco companies. Smokers knew of the damage they do to
themselves. How could this Government resist the arguments that predictable losses by iwi must be recompensed? said
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