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Paving the way

Waikato bypassed the Waitangi Tribunal and entered direct negotiations with the National government to resolve their historical grievances in 1991.

Robert Mahuta had earlier filed the Wai 30 claim on behalf of the Tainui Maaori Trust Board and Ngaa Marae Toopu with the Tribunal in 1987. Now rangatira ki te rangatira negotiations were preferred.

Auckland District Court Judge Denese Henare was the principal legal advisor to Waikato-Tainui during the litigation in the 1980s leading to the raupatu negotiations in the 1990s.

Henare says it was critical to set the record straight ‘and have the historical account, accounted.’

National took a commonsense approach to Treaty of Waitangi settlements by starting with one of the larger claims says former Treaty Negotiations Minister Doug Graham.

“Waikato-Tainui seemed to me to be the most obvious one because it was obviously one of the major claims but more particularly it was very well led by the Kiingitanga, and by Bob Mahuta and all his team”, says Graham.

“The grievance was well known, there was no question what had happened. There wasn’t any debate about the raupatu or the rights or wrongs of it, so it was obviously one to approach.”

After four years of negotiations, Mahuta and Graham signed the Heads of Agreement on 19 December, 1994.

At this meeting, Mahuta introduced the relativity clause, in a bid to ensure that Waikato-Tainui did not pay a price for being the first cab off the Treaty of Waitangi rank.

The relativity clause means that the Crown is liable to make payments to maintain the proportion of the Waikato-Tainui and Ngaai Tahu settlements at, respectively, 17% and 16.1%  The clause expires in 2045.

While Tainui legal advisor Shane Solomon says the relativity clause was a masterstroke by Mahuta, in reality, the total settlement including relativity clause payments is still a fraction of the value of the 1.2 million acres of tribal land confiscated.

“It was all about the Trust Board and Sir Robert being quite reasonable about the expectation.”

Treaty Negotiations Minister Doug Graham, Te Arikinui Dame Te Atairangikaahu and Tainui Principal Negotiator Robert Mahuta pictured after the Heads of Agreement signing. Credit – Waikato-Tainui College for Research and Development archives.