Treaty Settlements · Part 08 · Survival matrix

What rights, claims and remedies survive after settlement?

The cleanest answer is not “everything survives” or “everything is gone”. The legal result depends on three variables: what right or claim is being asserted, when the Crown conduct occurred, and which forum is being asked to act. Historical settlement finality closes a defined field. Outside that field, other rights, duties and causes of action can remain live.

1. The date boundary matters

Modern historical settlements usually define the settled claim by Crown acts or omissions before 21 September 1992. Raukawa is a clear example: a claim may arise from the Treaty, legislation, common law including aboriginal title/customary law, fiduciary duty or otherwise, but it is a historical claim only where it arises from Crown or legislative acts or omissions before that date.

2. The Waitangi Tribunal still has contemporary jurisdiction

Section 6 of the Treaty of Waitangi Act 1975 continues to allow Māori to bring claims about Crown legislation, policy, practices, acts or omissions said to be inconsistent with Treaty principles, subject to the Act's jurisdictional limits.

Section 6AA separately prevents new historical Treaty claims from being submitted after 1 September 2008. That restriction should not be confused with a general ban on contemporary claims. The Act defines a historical Treaty claim by reference to Crown conduct before 21 September 1992.

3. The Crown's own settlement policy says the Treaty relationship continues

The current Red Book states that settlements do not affect Māori entitlements as New Zealand citizens and do not affect ongoing rights arising out of the Treaty or under the law. Crown settlement summaries repeatedly make the same distinction: historical pre-1992 claims become final, while claims concerning post-1992 Crown acts or omissions can still be pursued.

Whakatōhea's official settlement summary is particularly explicit. It says the settlement still permits post-1992 claims, including claims based on the continued existence of aboriginal title or customary rights, while preserving full Tribunal jurisdiction to make findings and recommendations on post-1992 claims other than claims relating to the settlement itself.

4. Underlying customary and aboriginal-title rights may survive

Raukawa's settlement statute expressly says nothing in the Act extinguishes or limits any aboriginal title or customary right Raukawa may have, and—except where the Act expressly provides otherwise—nothing affects rights arising from the Treaty, enactment, common law, fiduciary duty or otherwise.

That does not mean the Crown concedes that every asserted customary right exists. The same provision expressly preserves the Crown's ability to dispute existence. The legal point is narrower: the settlement itself does not automatically extinguish those underlying rights.

5. Marine and coastal customary interests sit in their own statutory regime

The Marine and Coastal Area (Takutai Moana) Act 2011 provides the current statutory regime for protected customary rights and customary marine title. The Act says customary interests were restored after repeal of the Foreshore and Seabed Act 2004 and gives the High Court exclusive statutory jurisdiction to recognise protected customary rights and customary marine title under the Act.

Several settlement summaries expressly state that historical settlement does not affect claims under the Takutai Moana Act. However, recognition under that Act is governed by its own procedural history, statutory criteria and current amendments. Settlement survival therefore does not mean a claimant can ignore MACA's separate requirements.

6. Different whakapapa can preserve a different claim

A settlement claimant definition does not necessarily capture every claim an individual or hapū possesses through every line of descent. Raukawa's Act, for example, excludes claims founded on rights arising through an ancestor outside the Raukawa claimant ancestry, and also contains specific geographical exclusions.

This produces an important rule for overlapping identity:

7. Settlement implementation rights survive because the Act says so

Settlement Acts often remove court and Tribunal jurisdiction over the historical claims, deed, Act and redress—but then expressly preserve jurisdiction over the interpretation or implementation of the deed and settlement Act.

That means “full and final” does not render the settlement instrument legally untouchable. Disputes about what the Crown promised, what a statutory right of first refusal means, whether a transfer obligation was performed, or how a settlement provision should be interpreted can still be justiciable where the statute preserves that jurisdiction.

8. Judicial review and declarations can remain available for later Crown conduct

Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84 shows why settlement should not be treated as a perpetual Crown immunity. The Supreme Court reinstated much of Ngāti Whātua Ōrākei's proceeding concerning asserted present rights and Crown obligations in central Auckland, while making clear the courts could not invalidate Parliament's proposed decision to legislate merely through that proceeding.

Elias CJ specifically considered that even after other settlements were legislated there could remain live issues concerning Ngāti Whātua Ōrākei's status, tikanga-based rights and Crown obligations, and described the Treaty relationship as continuing in the Crown's post-settlement dealings.

9. Tikanga survives, but its legal effect is question-specific

Settlement legislation does not normally abolish tikanga. But tikanga should not be treated as a single free-standing statutory cause of action with identical effect in every dispute. Its domestic legal relevance depends on context: the governing statute, common-law principles, the nature of the right asserted, the evidence of applicable tikanga and any contrary statutory rule.

That is consistent with the broader approach of the Supreme Court in modern tikanga cases: tikanga can be relevant to the development and application of common law, but its precise legal work is determined case by case.

10. The survival matrix

11. “Survives” does not mean “automatically enforceable”

This is the most important qualification in the matrix. A settlement can leave an underlying interest untouched while the claimant still faces a separate question about legal enforceability.

Those are different questions. A right may survive but have a narrow remedy. A Treaty interest may continue but require a statutory or public-law route. A customary title may survive but have to be recognised through a specific statutory regime. Conversely, a settlement-created right can be highly enforceable even though it did not exist before settlement.

12. The correct post-settlement audit sequence

Only after that sequence can we answer whether a right is legally live, merely conceptually preserved, transformed into a statutory right, or completely barred.

Part 08 finding

A historical Treaty settlement creates a defined zone of finality, not a universal legal vacuum around the claimant group. Pre-1992 historical Crown claims within the settlement definition are generally closed and their historical remedial pathways removed. But post-1992 Crown conduct, expressly preserved customary or aboriginal-title interests, claims arising through excluded ancestry, settlement-implementation rights, contemporary statutory rights and public-law challenges can remain live. Treaty and tikanga interests may continue, but their enforceability depends on the legal route available in the particular case. Fisheries remains the major exception where Parliament expressly altered the independent legal effect of the underlying subject-matter rights.