Tribunal releases Hauraki Settlement overlapping claims inquiry report

The Waitangi Tribunal today released the Hauraki Settlement overlapping claims inquiry report in pre-publication format. The report addresses four claims.

The Tribunal has found the Crown acted inconsistently with the principles of the Treaty of Waitangi by failing to undertake a sufficient overlapping claims process concerning redress offered to Hauraki iwi as part of their proposed Treaty settlement.

For Ngāi Te Rangi, Ngāti Ranginui and Ngātiwai whose interests overlap with Hauraki, the consequences have been profound. The Tribunal says the Crown’s actions created fresh grievances, fractured relationships and further delayed the settlement process.

These findings are central to the Tribunal’s Hauraki Settlement Overlapping Claims Inquiry report, released today. The report resulted from an urgent hearing into claims brought by four iwi: Ngāti Ranginui and Ngāi Te Rangi (both iwi of Tauranga Moana), Ngātiwai (whose area of interest extends from the Bay of Islands to Matakana in Mahurangi, including several offshore islands) and Ngāti Porou ki Hauraki (whose key interests lie on the Tai Tamāhine coastline of the Hauraki district).

Ngāti Porou ki Hauraki was formerly part of the Hauraki Collective. As such, their experiences and claims were distinctly different from the other claimants. Although they argued they too were prejudiced by Crown policies, processes, and practices, and did not receive a fair redress offer, the Tribunal considered that Ngāti Porou ki Hauraki’s claims were not well-founded. The reasons are set out in Chapter 6 of the report.

However, the Tribunal found that Ngāti Ranginui, Ngāi Te Rangi and Ngātiwai – whose experiences of the Hauraki settlement process had much in common – were all prejudiced by the Crown’s actions.

Over several years, the Crown failed to properly consult and share information with them over redress it was proposing to offer Hauraki. The Tribunal heard compelling evidence of ‘consultation’ that was cursory or far too late, of repeated and sometimes fruitless requests for information that the Crown should have provided without being asked. Iwi described being excluded from discussions over redress in which they clearly had overlapping interests. Ngātiwai, for example, were shut out of discussions over redress on Aotea/Great Barrier Island until very late in the Hauraki settlement process. Claimants also spoke of the Crown’s lack of support for using tikanga-based processes to resolve redress disputes and test claimed interests.

In some cases, claimant iwi agreed to certain redress items being provided to Hauraki, only to discover later that the Crown had offered something more, or different. A key issue for Tauranga Moana iwi was a provision in the Pare Hauraki Collective Deed of Settlement allowing Hauraki iwi to participate in the Tauranga Moana Framework – an innovative co-governance mechanism for managing and protecting the Tauranga harbour. Over many months, Tauranga Moana iwi strongly opposed Hauraki representation on the Framework governance group, saying their interests in the moana had not been established. But just days before the Hauraki collective deed was initialled in December 2016, Tauranga Moana iwi discovered by chance that it contained a clause preserving Hauraki iwi’s ability to participate in the governance group. The Crown refused to remove the clause, and it was one of the catalysts for the claimants seeking an urgent Tribunal inquiry.

The Tribunal also strongly criticised the policies and processes guiding the Crown’s actions. As the Tribunal has already found in many inquiries since at least 2003, the policy document guiding the Crown’s settlement processes – the so-called Red Book – is vague, unhelpful, inadequate and inaccurate. Moreover, the Crown has persistently failed to amend or update it in light of previous Tribunal findings. The Tribunal has repeatedly recommended the Crown to set out more clearly how it manages its relationships with parties other than settling groups, and called for the policies and practices documented in the Red Book to be Treaty-compliant and fair. Yet it remains essentially unchanged.

Instead, the Tribunal found, the Crown chose to adopt an ad hoc, opaque and ever-changing pool of settlement practices. Some were at odds with the Crown’s own policies and/or inconsistent with Treaty principles. As the Tribunal commented, at key times the Crown prioritised speed over due process in the Hauraki settlement process.

The report makes several recommendations to remedy the prejudice the Crown’s actions have caused Ngāi Te Rangi, Ngāti Ranginui, and Ngātiwai.

Firstly, the Crown should halt the progress of legislation giving effect to the Pare Hauraki Collective Settlement Deed (signed on 2 August 2018) and individual Hauraki iwi settlement deeds. The legislation should not proceed until the contested redress items have been through a proper overlapping claims process, the Tribunal says.

Secondly, the Tribunal urges the Crown to fully commit to and implement Treaty-compliant policies and processes in settlement negotiations. Tikanga-based resolution processes should be used to clarify overlapping interests and work through any redress disputes. Consultation and information-sharing must be thorough, timely and transparent, especially when the Crown is dealing with parties other than the settling group. And the Red Book must be amended to fully express the Crown’s commitment to a Treaty-compliant approach to settlements and explain how it will be implemented.

The Tribunal notes that the full title of the Red Book includes the words ‘Ka tika a muri, ka tika a mua’ (‘Healing the past, building a future’). If the Crown wants to avoid continuous litigation, adverse Tribunal findings, and delays to its settlement programme, the Tribunal says it must now turn this admirable sentiment into practical action.

The presiding officer in the Hauraki Settlement Overlapping Claims Inquiry was Judge Miharo Armstrong. The other members of the panel were David Cochrane, Professor Rawinia Higgins, and Dr Ruakere Hond.

The final version of the Waitangi Tribunal’s report is now available to download: Hauraki Settlement Overlapping Claims Inquiry Report [PDF, 2.8Mb](external link).

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