Over the last 24 years, my work has involved estimating losses in commercial disputes and compensation for treaty breaches in countries around the world.
These have included high-stakes cases involving the Yukos Oil Company in Russia, an energy business in Ukraine, and land claims under a treaty between Malaysia and Singapore.
In every case, the principle is clear: compensation must be fair and should aim to restore as much of what was lost as possible.
When it comes to New Zealand’s Treaty of Waitangi settlements, the government consistently falls far short of international standards—and its principles of fairness.
Before signing the Treaty of Waitangi in 1840, the British government made it clear that the Māori “title to the soil” and “sovereignty of New Zealand” was “indisputable”.
Crucially, colonisation depended on the “consent” of Māori.
Yet, the treaty that followed has been undermined by decades of breaches — particularly relating to the loss of land.
It is well documented and accepted by the government that compensation for land claims covered by Waitangi settlements does not remotely reflect market values and fall short of the loss suffered by Māori landowners.
Given the current debate about Treaty principles, the shortfall in compensation should be more widely acknowledged.
It is also far short of what New Zealanders generally could expect if the government seized their land.
Waitangi land settlements are a specific and substantial form of discrimination against Māori.
The Treaty Principles policy that ACT leader David Seymour campaigned for, guaranteed equal rights and duties for all.
Post-election, I was interested in whether a change was underway.
That is, given ACT’s “everyone has the same rights” promise, I assumed that land settlements would now be based on the same standards of compensation New Zealanders could generally expect.
However, Seymour now considers his election promise “too broad” and the equal treatment guarantee would not apply to Treaty settlements.
There is a real danger that the inadequacy of Treaty settlements is intended to continue.
Two landmark cases — the Waikato-Tainui Raupatu and Ngāi Tahu claims—illustrate the scale of the injustice. The government has acknowledged the wrongful confiscation of 1.2 million acres (500,000 acres) of Waikato-Tainui land, valued at $12 billion in 1995. Yet the settlement amounted to just $170 million—a discount of over 98%.
The same settlement sum was offered for Ngāi Tahu, whose claim involved breaches involving a tenth of the 34.5m acres sold to the government (about 80% of the South Island). The government has never put forward any reasoned case to link these sums to the losses suffered by Māori.
While helpful for iwi development, these settlements are far from fair compensation.
The government admits as much.
There are many examples.
For instance, the Ngāti Hinerangi Deed of Settlement explicitly states that “full compensation… is not possible.” Yet, there is no effort to explain why or to address the vast gulf between the losses and the restitution provided.
The inequality becomes even more glaring when compared to the rights of other New Zealanders generally.
If the government took your home under the Public Works Act, you’d be entitled to compensation at market value—a right that every New Zealander expects and deserves.
Token compensation, such as the Treaty settlements, falls far short of this standard.
New Zealand is not alone in addressing treaty disputes.
- Tim Giles is originally from Wellington. He is an internationally recognised financial economics consultant and valuation expert, specialising in treaty disputes and international arbitration. He is a senior advisor for Analysis Group.
News category: Analysis and Comment.