Rapua ngā tuhinga ruku tātari

The Whakatōhea Mandate Inquiry Report was released in pre-publication form on 17 April 2018. It was the outcome of an inquiry into 12 claims relating to the Crown’s recognition of the Whakatōhea Pre-settlement Claims Trust (the Pre-settlement Trust) as having a mandate to enter negotiations to settle the historical Treaty of Waitangi claims of Whakatōhea.

The hearings, held under urgency, took place at Whakatāne on 6–10 and 21–22 November. The panel appointed to hear the claims comprised Judge Michael Doogan (presiding), Associate Professor Tom Roa, Dr Robyn Anderson, and Mr Basil Morrison.

The Crown recognised the Pre-settlement Trust mandate in December 2016 and then moved quickly into substantive negotiations. The Pre-settlement Trust and the Crown entered into an agreement in principle in August 2017.

The claimants’ central complaint was that the Crown had breached the principles of the Treaty of Waitangi by failing to actively protect the ability of hapū and Waitangi Tribunal claimants to exercise their rangatiratanga in determining how they would settle their historical claims. Significant concerns were also raised about the process by which the mandate was recognised.

On Tuesday 30 June 2020, the Waitangi Tribunal released The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry: Stage 1 Report in pre-publication format.

The inquiry was accorded high priority, reflecting the importance of the customary rights at stake and the immediacy of the Marine and Coastal Area (Takutai Moana) Act's alleged impacts on Māori.

The Act replaced its controversial predecessor, the Foreshore and Seabed Act 2004. Under the Marine and Coastal Area (Takutai Moana) Act, Māori can obtain legal rights recognising their customary interests in the form of either customary marine title or protected customary rights. Two application pathways are provided: Māori can either engage directly with the Crown or apply to the High Court for a recognition order. They can also choose to do both. In either pathway, applications for customary rights had to be filed by the statutory deadline of 3 April 2017.

The Tribunal’s report concludes stage 1 of a two-part inquiry. The first stage has considered whether the procedural and resourcing arrangements put in place by the Crown to support the Act are Treaty-compliant and prejudicially affect Māori. The Tribunal received 92 claims for the inquiry, and a further 75 parties were granted interested party status. Hearings were held from 25 March 2019 to 2 August 2019 before an inquiry panel comprising Judge Miharo Armstrong (presiding), Ron Crosby, Dr Hauata Palmer, and Professor Rawinia Higgins. Stage 2 of the inquiry will examine whether the broader statutory and policy issues relating to the Act itself breach Treaty principles and prejudice Māori.

In its report, the Tribunal found that the Crown did act reasonably, in good faith, and consistently with its Treaty obligations in implementing some aspects of the Act’s supporting regime. The Tribunal was also encouraged to hear that the Crown would be conducting a comprehensive review of the funding regime, with input from applicants.

Notwithstanding these positive signs however, the Tribunal found that many aspects of the Act’s supporting procedural and resourcing arrangements fell well short of Treaty-compliance and cause Māori significant and ongoing prejudice.

The Tribunal therefore recommended that the Act’s procedural and resourcing arrangements be amended to give effect to Treaty principles. Further recommendations included,urgently addressing a policy vacuum that continued to impede both the operation of the Crown engagement pathway itself and the cohesion of the two pathways and addressing funding arrangements for claimants.

The report concludes by noting that Māori would continue to be prejudiced until the Crown took steps to make the Act’s supporting procedural and resourcing arrangements fairer, clearer, more cohesive, and consistent with the Crown’s obligations as a Treaty partner.

On 6 October 2023, the Waitangi Tribunal released The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 2 Report in pre-publication format. The inquiry was accorded high priority, reflecting the importance of the customary rights at stake and the immediacy of the Act’s alleged impacts on Māori. The Tribunal received 92 claims for the inquiry, and a further 80 parties were granted interested party status. Hearings were held between September 2020 and November 2021 before an inquiry panel comprising Judge Miharo Armstrong (presiding), Ron Crosby, Professor Rawinia Higgins, and Tā Pou Temara.

This report concludes the two-part inquiry. The first stage considered whether the procedural and resourcing arrangements put in place by the Crown to support the Act were Treaty-compliant and prejudicially affected Māori, whereas the stage 2 report focused on the Treaty compliance of the Marine and Coastal Area (Takutai Moana) Act 2011 itself.

The 2011 Act replaced its controversial predecessor, the Foreshore and Seabed Act 2004, and restored customary title interests extinguished under the previous Act, introduced statutory tests and awards whereby customary interests may be identified, and provided for public access. Under the Act, Māori can obtain legal rights recognising their customary interests in the form of customary marine title or protected customary rights. The Act provides two application pathways for this purpose. Māori can apply to the High Court for a recognition order or engage directly with the Crown, or do both. In each pathway, applications for customary rights had to be filed by the statutory deadline of 3 April 2017.

The stage 2 report investigated whether the Act’s foundations, the Act’s mechanisms for recognising claimants’ rights, and the rights available under the Act themselves were Treaty compliant. Overall, the Tribunal found that the rights under the Takutai Moana Act did not sufficiently support Māori in their kaitiakitanga duties and rangatiratanga rights and failed to provide a fair and reasonable balance between Māori rights and other public and private rights. Therefore, the Marine and Coastal Area (Takutai Moana) Act 2011 was in breach of principles of the Treaty of Waitangi. The claimants had been, and were likely to continue to be, prejudiced by aspects of the Act that breached Treaty principles.

To give effect to Treaty principles, the Tribunal recommended that the Crown make several targeted amendments to the Act based on the claims that had been heard and upheld. Among these were recommendations to improve the statutory test for customary marine title, to repeal the statutory deadline, to allow current applicants to transfer their applications from the High Court to the Māori Land Court, to increase the scope of the Act’s compensation regime, and to decouple the wāhi tapu protection right from the regime of customary marine title.

In June 2019, the Tribunal released Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry. Stage one of the inquiry had addressed two claims, calling on the Tribunal to investigate the Crown’s legislation, policy, actions, and omissions of the primary health care system since the New Zealand Public Health and Disability Act 2000. After hearing evidence throughout 2018 and 2019, the Tribunal made a series of interim recommendations in the Hauora report, and directed the Crown and claimants to inform the Tribunal on the progress made.

After considering the parties’ submissions on their progress, as well as the Crown’s proposed health reforms, in October 2021, the Tribunal issued a further chapter of the Hauora report (chapter 10), setting out its final recommendations. The release of chapter 10 marked the end of the first stage of this ongoing inquiry into the Crown’s response to health inequities experienced by Māori.

The Tribunal’s main finding in Hauora was that the Crown had breached the Treaty of Waitangi by failing to design and administer the current primary health care system to actively address persistent Māori health inequities, and failing to give effect to the Treaty’s guarantee of tino rangatiratanga (autonomy, self-determination, sovereignty, self-government). It also found that the Crown had failed to guarantee Māori adequate decision-making authority regarding the design and delivery of primary health services and to properly support and resource Māori primary health organisations and health providers.

The 2019 report also made three interim recommendations, two of which were time-bound. The first called upon the Crown to explore the concept of a standalone Māori primary health authority, working together with claimants to further assess the extent of the problems in primary health care, and to co-design a set of solutions. Throughout the hearings, both claimant groups broadly suggested creating a national, Māori-controlled agency, organisation, or collective, which would have substantial oversight and control of Māori health-related spending and policy. The Tribunal’s second time-bound interim recommendation required the Crown and claimants to agree upon a methodology to assess the extent of underfunding. Both time-bound interim recommendations required the Crown and claimants to keep the Tribunal updated as to their progress.

In chapter 10, released in 2021, the Tribunal reviewed the progress the parties had made towards fulfilling those interim recommendations. The Crown’s announcement in early 2021 that it would commence significant structural reform within the health sector and establish a Māori Health Authority satisfied the first interim recommendation. The Tribunal evaluated the Crown’s high-level descriptions of the reforms against its 2019 findings and recommendations, emphasising that the Crown needed to ensure the reforms and the Māori Health Authority empowered tino rangatiratanga of hauora Māori. With respect to its interim recommendation on underfunding, the Tribunal expressed its disappointment that an underfunding methodology had not been jointly agreed upon. However, the Tribunal noted that the claimants had commissioned and produced an independent report, which it considered a good starting point towards determining the amount of compensation due to Māori health organisations and providers.

In chapter 10, the Tribunal also called for collaboration to continue between parties to develop a Treaty-compliant primary health care system. Accordingly, the Tribunal’s final recommendations for the stage one inquiry were that:

• the Crown continue to work with claimants in partnership to further develop a Māori Health Authority that empowers tino rangatiratanga;
• the Crown and claimants urgently progress work to agree upon a methodology to calculate underfunding experienced by Māori primary health care organisations and providers since 2000;
• once the Crown and claimants agree upon a methodology, the Crown fully compensate those Māori health organisations and providers that had suffered from underfunding;
• once parties calculate the amount of compensation due, they agree upon a method of payment, whether as a lump sum or in instalments;
• the Crown fully reimburse claimants for the costs of producing the Sapere report, and fund the process required to agree upon an underfunding methodology; and
• the Crown work with the claimants to use the underfunding methodology work to inform future primary health care funding.

Haumaru: The COVID-19 Priority Report was the result of a priority inquiry focused on the Crown’s vaccination strategy and the shift to the COVID-19 Protection Framework (also known as the traffic-light system). The inquiry panel comprised Judge Damian Stone (presiding officer), Dr Tom Roa, Tania Simpson, and Professor Linda Tuhiwai Smith, and the hearing took place at the Waitangi Tribunal Unit’s offices in Wellington between Monday 6 December and Friday 10 December 2021.

Concerning the Crown’s vaccination strategy, the Tribunal found that Cabinet’s decision to reject advice from its own officials to adopt an age adjustment for Māori in the vaccine rollout breached the Treaty principles of active protection and equity.

Regarding the Crown’s COVID-19 Protection Framework, the Tribunal found that a new framework was necessary. However, the rapid transition into the framework, which happened faster than the Crown’s officials and experts recommended and without the original vaccination thresholds for each district health board being met, did not adequately account for Māori health needs. As such, Māori were put at a disproportionate risk of being infected by Delta in comparison to other popular groups. This breached the principles of both active protection and equity.

Additionally, the rapid shift to the COVID-19 Protection Framework put Māori health and whānau ora providers under extreme pressure and undermined their ability to provide equitable care for Māori. This was in breach of the principles of both tino rangatiratanga and options.

Finally, the decision to shift into the COVID-19 Protection Framework was made despite strong, unanimous opposition from the Māori health leaders and iwi that the Crown consulted. Further, the Crown did not consistently engage with Māori to the fullest extent practicable on key decisions in its pandemic response. These actions were in breach of the principle of partnership.

The Tribunal recommended that the Crown urgently provide further funding, resourcing, data, and other support to assist Māori providers and communities with:

• the continuing vaccination effort – including the paediatric vaccine and booster vaccine;
• targeted support for whānau hauā and tāngata whaikaha;
• testing and contact tracing;
• caring for Māori infected with COVID-19; and
• self-isolation and managed isolation programmes.

The Tribunal also recommended that the Crown improve its collection of ethnicity data and information relevant to Māori health outcomes and that it prioritise the work to improve the quality of quantitative and qualitative data on tāngata whaikaha and whānau hauā, in partnership with Māori disability care providers and community groups. The Tribunal recommended that all this data and information should be made public and be easily understandable and accessible, subject to relevant legislation.

Looking ahead, the Tribunal recommended that the Crown strengthen its monitoring regime to enable it to identify, in as close to real time as possible, whether or not its COVID-19 policy settings in relation to Māori were working as expected. This would enable the Crown to change those settings to achieve the desired and intended results and to remain accountable to its Treaty partner.

The Tribunal recommended both the paediatric vaccine and the booster vaccine rollout expressly prioritise Māori and be supported by adequate funding, data, and resourcing for Māori providers.

Finally, the Tribunal recommended that the Crown strengthen its engagement with its Treaty partners. The claimants and the Crown had begun negotiations about a new national collective to assist with coordinating the Māori pandemic response. The Tribunal recommended that any further engagement between Māori and the Crown, with this national collective and with other Māori groups, should give effect to tino rangatiratanga and be broadly representative of Māori. Key Ministers and Crown officials must also be involved.
 

The Mana Ahuriri Mandate Report was released in pre-publication form on 20 December 2019. The report addresses a claim brought on behalf of the Ngāti Pārau hapū about the Crown’s acceptance of the ratification vote for the Ahuriri Hapū deed of settlement, and the proposed post-settlement governance entity – the Mana Ahuriri Trust.

In 2009, Mana Ahuriri Incorporated received a mandate from seven Ahuriri hapū to negotiate their historical claims. Negotiations were interrupted from September 2011 to February 2013 by a period of dysfunction among the komiti members. After the negotiations resumed in mid-2013, an agreement in principle was signed in December of that year, followed by the initialling of a deed of settlement in June 2015. A ratification process was then held for the deed of settlement and post-settlement governance entity, with a ratification vote taking place from 17 July 2015 to 21 August 2015.

The claimants argued that the ratification process for the deed of settlement was flawed. In particular, they claimed that the negotiating entity, Mana Ahuriri Incorporated, had lost its mandate and the Crown should not have proceeded with the settlement. In the claimants’ view, the Crown breached Treaty principles by failing to monitor the mandate sufficiently and by signing the deed of settlement despite a flawed ratification process and loss of mandate.

The hearings were held in Napier in February 2019, with closing submissions filed in May and June 2019. The Tribunal consisted of Chief Judge Wilson Isaac (presiding), Prue Kapua, Dr Grant Phillipson, and Dr Monty Soutar. In its report, the Tribunal agreed that the process was flawed and the Crown’s decision to proceed with the settlement in those circumstances was in breach of the Treaty principles of partnership and active protection. However, while the Tribunal found that the Crown was in breach of Treaty principles for accepting the ratification results for the Manu Ahuriri Trust, it did not find that the Crown’s acceptance of the deed of settlement was a breach.

The Tribunal recommended that, before introducing settlement legislation, the Crown obtain an undertaking from the Mana Ahuriri Trust to hold an election for all nine trustee positions, with an independently monitored voting process. It further recommended that the Crown should pay the costs of the election.

The Tribunal made further recommendations to prevent recurrence of similar prejudice in future settlement.

In October 2015, the Crown recognised the mandate of the Ngātiwai Trust Board to represent Te Iwi o Ngātiwai to negotiate and settle historical Ngātiwai Treaty of Waitangi claims. The Ngātiwai Mandate Inquiry Report is the result of an urgent inquiry into 10 claims concerning the Crown’s recognition of the mandate. The central theme of the claims was that the Crown recognised a mandate based on a one person-one vote process without ascertaining whether the hapū included in the mandate had given their support and consent to the trust board. The inquiry, in other words, concerned hapū tino rangatiratanga.

Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates, published in June 2017, was the outcome of an urgent inquiry into a claim concerning the Crown’s actions and policies to reduce the high and disproportionate rate of Māori criminal reoffending.

The claim was brought by Tom Hemopo, a retired senior probation officer, who alleged the Crown, through the Department of Corrections, had failed to make a long-term commitment to reducing the high rate of Māori reoffending relative to non-Māori.

The Tribunal heard the claim under urgency at its offices in Wellington from 25 to 29 July 2016. The Tribunal consisted of Judge Patrick Savage, Professor Derek Lardelli, Tania Simpson, and Bill Wilson QC.

Though Tū Mai te Rangi! focused specifically on reoffending, the broader imprisonment statistics for Māori in New Zealand formed the backdrop to the claim. At the time of the hearing, Māori constituted about 15 per cent of the national population but more than 50 per cent of the prison muster. The Tribunal noted the disparity between Māori and non-Māori reoffending rates was substantial and contributed to the disproportionate number of Māori in prison. Because of this, the Tribunal said that, for the Crown to be acting consistently with its obligations, it had to be giving urgent priority to addressing disproportionate Māori reoffending rates in clear and convincing ways.

The Tribunal concluded that the Crown, through the Department of Corrections, was not prioritising the reduction of Māori reoffending. It based this conclusion on the fact that since 2013 the Department of Corrections had had no Māori-specific plan or strategy to reduce Māori reoffending rates, no specific target to reduce Māori reoffending rates, and no specific budget to meet that end. The Tribunal therefore found that these Crown omissions breached the Treaty principles of active protection and equity.

The Tribunal further found that the Crown had not breached the principle of partnership, given that the Department of Corrections was making good-faith attempts to engage with iwi and hapū. However, the Tribunal said the Crown risked breaching its partnership obligations in future if it did not live up to its stated commitment to develop its partnerships with Māori.

Among the Tribunal’s recommendations was that the Department of Corrections revise the Māori Advisory Board’s terms of reference to enhance the board’s influence in high-level discussions with the Department of Corrections concerning the protection of Māori interests. It recommended that the department work with the enhanced board to design and implement a new Māori-specific strategic framework and that it set and commit to a Māori-specific target for the department to reduce Māori reoffending rates. Progress towards this target should, the Tribunal said, be regularly and publically reported on. The Tribunal also said the Crown must include a dedicated budget to appropriately resource the new strategic focus.

As the Tribunal was set to release its report, the Crown sought to submit additional evidence relating to a new Justice Sector target to reduce Māori reoffending, and a proposed Justice Sector strategy to meet this target. The Tribunal allowed the new evidence and reported on it in an addendum to the report. It concluded that this evidence did not alter the report’s findings and conclusions.

The Report on the Trans-Pacific Partnership Agreement, released on 5 May 2016, is the result on an urgent inquiry into a number of claims made by Māori that the Crown has breached the principles of the Treaty of Waitangi in joining the Trans-Pacific Partnership Agreement (TPPA).

The TPPA is a free trade agreement between New Zealand and 11 other Pacific Rim countries, including the United States and Japan. The Government negotiated the inclusion of a clause in the TPPA that allows it to take ‘measures it deems necessary to accord more favourable treatment of Māori… including in fulfilment of the Treaty of Waitangi’.

Claimants before the Tribunal said that this ‘Treaty exception clause’ would not protect their Treaty rights, and that the TPPA gave too much power to foreign investors.

The time available to the Tribunal to report was limited, and so it confined its inquiry to two issues:

• Whether the Treaty of Waitangi exception clause is the effective protection of Māori interests it is said to be; and
• What Māori engagement and input is now required over steps needed to ratify the TPPA, including by way of legislation or changes to Government policies which may affect Māori.

The Tribunal found that the exception clause should ‘provide a reasonable degree of protection to Māori interests’. The inclusion of a Treaty clause in the TPPA, and in earlier free trade agreements, was ‘to the credit of successive New Zealand governments’, the Tribunal said.

Nevertheless, the Tribunal expressed concern about the right of foreign investors to bring claims against the New Zealand Government. Under the TPPA, an investor may choose to bring a claim against the country in which they have invested, if it thinks the investment has been damaged by the State. This takes place under a system known as investor–state dispute settlement (ISDS).

An ISDS panel decides the case and can order compensation, although it cannot order the country to change its laws or practices.

The Tribunal was concerned that the right to bring ISDS claims, or the threat or apprehension of them, ‘may have a chilling effect on the Crown’s willingness or ability to meet its Treaty obligations or to adopt otherwise Treaty-consistent measures’.

In addressing its second issue, of what steps the Crown should now take, the Tribunal also looked at the adequacy of the Crown’s consultation with Māori before the TPPA text was completed. It was critical of the process, but made no findings on that topic.

The Tribunal suggested that question of a possible chilling effect, as well as an appropriate Treaty clause for future trade agreements, should be the subject of further dialogue between the Crown and Māori.

The Wai 2522 claim was lodged in June 2015 by Dr Papaarangi Reid, Moana Jackson, Angeline Greensill, Hone Harawira, Rikirangi Gage, and Moana Maniapoto. The claim, together with eight others, was heard by the Tribunal in March 2016. In addition, many Māori from throughout the country were recognised as interested parties in the inquiry.

The Tribunal comprised Judge Michael Doogan (presiding officer), David Cochrane, Tania Simpson, Tā Tāmati Reedy, and Sir Douglas Kidd.