| Establishing well-founded Claims
Most historical Treaty claims involve one (or some combination) of the following three types of land loss or alienation.
1. Purchases of Maori land before 1865, including:
. Private purchases prior to 1840 that were subsequently investigated and
validated by the Crown;
. Crown Purchases;
. Private purchases after 1840 where the Crown waived its pre-emptive right
to purchase Maori land under Article 2 of the Treaty of Waitangi.
2. Confiscation of Maori land by the Crown under the New Zealand Settlements
Act 1863.
3. Alienations of Land after 1865, including:
. sales after the investigation of customary ownership and
individualisation of title under the various Native Land Acts after 1865;
. public works takings.
There has been a great deal of research done by the Waitangi Tribunal and other bodies on land loss or alienation under these three categories. As a result, the Crown is in a position to acknowledge that, in many cases, breaches of the Treaty of Waitangi and its principles are likely to have occurred.
Where a claimant group wishes to negotiate with the Crown in relation to the types of land loss described above, the claimant group will still have to demonstrate how the breach or breaches of the Treaty of Waitangi harmed their tupuna (ancestors).
The Crown is, therefore, potentially able to enter into negotiations with claimant groups whose claims are yet to be heard by the Waitangi Tribunal, or who are waiting for the Waitangi Tribunal to report. However, the claimant group still needs to establish a mandate. The Crown also has a strong preference to negotiate with large natural groups of claimants, rather than individual whanau (families), or hapu (smaller tribal groups, or sub-tribes).
If a claimant group wishes, they may prefer to complete hearings before the Tribunal and have the Tribunal finish a report on their claims prior to entering into any discussion with the Crown about negotiating a settlement. This report can then become the basis for negotiations between a claimant group and the Crown, although the Crown may not necessarily accept all of the Tribunal's findings.
The claimant group may also have to complete some additional research (especially if claims have not been heard by the Waitangi Tribunal) to identify the land lost and how that loss occurred. The Office of Treaty Settlements does not provide funding for such research. This must come from a claimant group's own resources or from the Crown Forestry Rental Trust.
While many claimant groups may be able to establish a breach or breaches of the Treaty of Waitangi, this does not automatically mean that the Crown will offer identical redress to each claimant group. The degree of culpability (extent to which a party is wrong or to blame) of the Crown may differ in each case. The Crown believes that the seriousness of each type of breach is different and redress should reflect that, but this is a matter for discussion during negotiations.
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