Tribunal releases report on Whakatōhea settlement process

The Waitangi Tribunal has released The Priority Report on the Whakatōhea Settlement Process in pre-publication format.

The Whakatōhea iwi have significant Treaty grievances, including the Crown’s waging of war against them and raupatu (confiscation). These have been acknowledged in previous settlements and Tribunal reports as among the worst Treaty breaches in this country’s history.

A failed attempt to settle Whakatōhea’s Treaty claims in the 1990s has left a legacy of division over how the iwi should move forward to settle their historical Treaty grievances with the Crown.

In 2017, claims were brought before the Tribunal about the Crown’s recognition of the Whakatōhea Pre-Settlement Claims Trust as the body holding the mandate to negotiate with the Crown on behalf of Whakatōhea. The resulting report – The Whakatōhea Mandate Inquiry Report (2018) – recommended that Whakatōhea undertake a (second) vote on the best path forward. Crucially, as decision-making within Whakatōhea is traditionally hapū-driven, the vote would record hapū affiliation.

The results of this vote were finely balanced and showed not only significant support for a Tribunal inquiry into the historical claims but also significant support for the work of the Whakatōhea Pre-Settlement Claims Trust in its negotiations with the Crown. Following this outcome, the Crown resumed negotiations with the trust in 2019, and offered Whakatōhea a ‘parallel process’. This parallel process would mean that negotiations with the Crown would occur alongside the Tribunal’s historical inquiry (but with a settlement well before the completion of the inquiry).

In 2020 and 2021, the Tribunal received further applications for an urgent hearing on these matters. As the Crown had indicated that the deed of settlement for Whakatōhea – and the subsequent ratification process – could commence in November 2021, the Tribunal granted priority hearing within the district inquiry to two sets of issues. This priority report addresses those issues, namely:

  1. The implications of the Crown offer of a parallel process for those who want their historical claims heard in the district inquiry. Can the Tribunal continue to progress the district inquiry while a settlement Bill remains before Parliament or must the Tribunal await a passage of legislation? Secondly the Crown’s offer of a parallel process is conditional upon the removal of the Tribunal’s power to make recommendations about historical claims. The claimants see this as an unjustified restriction that would restrict the utility of a historical inquiry.
  2. Issues associated with the mechanism in the deed of mandate by which hapū can seek to withdraw from the mandate and the amendment made to that mechanism following the Tribunal’s Whakatōhea Mandate Inquiry Report in 2018. What is the role of hapū in the ratification process of the settlement deed?

In its report, the Tribunal accepts that Whakatōhea are being given a rare opportunity to retain access to the Tribunal for a historical inquiry in parallel with (and subsequent to) settlement negotiations.

The Tribunal also accepts that the Crown’s decision to offer the parallel process to Whakatōhea is a fair and reasonable response to the finely balanced outcomes of the 2018 vote, with one exception. The Tribunal does not accept that the Crown’s condition on the offer – to remove the Tribunal’s power to make any recommendations on historical claim issues – is a fair and reasonable response to the wishes of those who voted in 2018 to have an inquiry that would inform and shape the settlement. The Tribunal did not find that the Crown had breached the principles of the Treaty, though, because Whakatōhea will make the final decision on whether they accept the parallel process, when they vote on whether or not to ratify the proposal settlement.

The Tribunal does consider that the Crown could reasonably allow for some specific Tribunal recommendations to be made after settlement. Otherwise, the Crown runs the risk that the parallel process will not be sufficiently robust and meaningful for the claimants and will affect the durability of the settlement.

The Tribunal concludes that it is not required to pause or stop the district inquiry while a Bill to settle the historical claims of Whakatōhea is before Parliament. This is because a historical inquiry into the subject matter of the claims does not in the Tribunal’s view constitute an inquiry into the Treaty consistency of the Bill itself.

The Tribunal found that parts of the mechanism for groups within Whakatōhea to withdraw their mandate from the pre-settlement trust are in breach of the principles of the Treaty. The Tribunal recommends that the Crown not initial the deed of settlement until some changes have been made to the withdrawal process so as to remedy the breach. These include clarifying the threshold for members to trigger the withdrawal process and also an amendment to make the process more hapū-driven and in line with Whakatōhea tikanga.

Further, on the role of hapū in the ratification process, the Tribunal recommends that the Crown ensure that the process includes hui-ā-hapū at the hapū marae after the initialling of the deed of settlement. This is also seen as required in order to observe Whakatōhea tikanga and enable hapū-driven decisions. The recommended hui-ā-hapū would take place before the postal vote by the whole iwi, so that the resolutions of the hui-ā-hapū can guide the vote on whether to accept the deed of settlement.

The Tribunal received eight claims for the inquiry and a further 35 parties were granted interested party status. Hearings took place on 10 and 13 September 2021 at the Waitangi Tribunal Offices in Wellington, with most attending remotely by Zoom. The Tribunal panel for this inquiry consists of Judge Michael Doogan (presiding), Dr Robyn Anderson, Prue Kapua, Basil Morrison, Dr Grant Phillipson, and Associate Professor Tom Roa.

The Priority Report on the Whakatōhea Settlement Process – Pre-publication Version is now available to download:

The Priority Report on the Whakatōhea Settlement Process – Pre-publication Version [PDF, 6.4Mb](external link)

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