Chapter 5: The Crown's Actions in the Mandating Process

Contents

5.1 Introduction

The evidence presented to us has demonstrated a number of serious problems with the mandate to settle the historical claims of Ngātiwai. In the previous chapter we concluded that hapū have been constrained in their ability to determine whether and on what basis their claims should be included in the mandate that is held by the Ngātiwai Trust Board. This constraint also means that hapū will have limited ability to participate fully in Treaty settlement negotiations.

In this chapter, we analyse the actions taken by the Crown as it worked towards its decision to recognise the mandate of the Ngātiwai Trust Board to negotiate a settlement of historical Treaty claims. Here, our focus is on identifying whether the Crown’s policies and practices have caused (or significantly contributed to) the problems we have identified, or whether they are – as the Crown suggested – matters that were more appropriately left to the people of Ngātiwai to decide.

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5.2 The mandate strategy and the vote

5.2.1 The steps taken towards developing a mandate strategy

In 2009, the Crown presented settlement proposals as part of negotiations with claimant groups in Tāmaki Makaurau, Kaipara, and Hauraki. Two hapū of Ngātiwai, Ngāti Manuhiri and Ngāti Rehua, were included in the Tāmaki Makaurau proposals. In response, the Ngātiwai Trust Board wrote to the Minister for Treaty of Waitangi Negotiations in August 2009 ‘on behalf of all the Ngatiwai Hapu’, seeking to initiate a dialogue and begin work towards settling Ngātiwai Treaty claims.1 The Minister replied that he wanted to settle Ngātiwai claims at the same time as the claims of Ngāpuhi, but could not say when that would be. Direct negotiations with Ngāti Manuhiri and Ngāti Rehua, he said, would ‘facilitate the protection of Ngātiwai’s interests in Kaipara and Mahurangi’.2 The trust board responded that, on behalf of Ngātiwai, it had ‘enjoyed an autonomous relationship with the Crown’ that had not been challenged by other iwi, but the Minister responded that ‘working within a wider group’ would assist the Crown’s wish to negotiate Northland claims ‘as expeditiously as possible’.3

Although the trust board agreed at the time to support the two hapū in negotiating separate settlements, chair Haydn Edmonds told us that was a decision ‘we regret’. ‘The reality is that the implications were not well understood by the Board at that time, and it was not a unanimous decision, but we have learnt from our mistakes and are still experiencing the negative effects of this decision’.4

The trust board has expressed deep concern at the damage that the Treaty settlement process has caused to relationships within Ngātiwai. Mr Edmonds told us the board felt forced into supporting the separate settlements in spite of its wish to ‘keep the entire iwi together, whanau, hapu, and iwi together’. The decision was ‘heaped’ on the board by the Crown and had been ‘very difficult’, a cause of contention that had split the board. His ‘issues with the Crown’ he would ‘save for the Crown’, but Mr Edmonds noted that Crown processes tend to ‘herd all of us’.5

Counsel for the trust board submitted that the division ‘imposed on Ngātiwai for settlement purposes’ resulted in ‘continuing mamae’ (pain).6 Thus, what Mr Edmonds described as ‘artificial divisions imposed on Ngātiwai’ for settlement purposes became a strong impetus for seeking a unified approach.7 The decision to pursue direct negotiations with the Crown to achieve a Treaty settlement was explicitly taken to allow Ngātiwai to ‘catch up’ with its two hapū and rebuild the unity that separate settlement processes threatened.8

The Crown has a duty to ensure that the application of its settlement policies to the Ngātiwai mandating process does not cause substantial damage to the whanaungatanga of hapū and other groups including the trust board. The Crown must not create fresh grievances. It seems to us that the early decision by the Crown to settle the two hapū separately has had a damaging impact on relationships, particularly between the trust board and hapū, as the board sought to pursue its kotahitanga approach at the expense of whanaungatanga.

The decision to pursue direct negotiations has had the opposite effect from that intended, and has worsened relationships within Ngātiwai and between Ngātiwai and their neighbours. The Office of Treaty Settlements (OTS) subsequently identified the claimants’ preference to have their claims heard by the Waitangi Tribunal before negotiating with the Crown as one of four main reasons for opposition to the mandate.9 The board has since sought to invoke aroha as a tikanga principle, ‘as a medium of healing the breaches that have occurred through this process’.10

By June 2012, the Crown had reached a Deed of Settlement with Ngāti Manuhiri. In October that year, during the partial sale process of four Crown-owned energy companies, OTS wrote to the trust board to offer the option of purchasing ‘on-account’ shares against a future settlement of historical Treaty claims. To be eligible, Ngātiwai needed to be recognised by the Crown as a large natural group (LNG). It also required a representative body that was appropriately accountable to the large natural group, with a recognised mandate to settle Ngātiwai Treaty claims. This chain of events suggests to us that the Crown was placing pressure on the trust board in order to achieve its own settlement goals. The letter also stated the Minister had ‘recognised Ngāti Wai Trust Board as an LNG’, a conflation of the trust board with the large natural group.11

A second letter from OTS in April 2013 confirmed details of the share offer, and set out a process by which large natural groups could ‘secure a Crown recognised mandate’. It stated: ‘To apply for a recognised mandate your group must submit a completed Mandate Strategy application form by 5pm 30 April 2013’ (emphasis in original).12 We do not know if the trust board replied, but in May the Minister wrote to the board to inform it of the Crown’s ‘proposed milestones for Ngātiwai (remaining claims)’: achieving terms of negotiation by the end of 2013 and an Agreement in Principle by June 2014. The Minister then encouraged the board to discuss an ‘accelerated settlement process’ with OTS officials.13 Rapid settlement of historical Treaty claims had been explicit government policy since 2008, when the government pledged to complete all settlements by 2014.14

The trust board appointed a Treaty claims manager at the beginning of 2013, and held three information-sharing hui in March and April in Whangaruru, Whangārei, and Auckland to discuss whether to pursue direct negotiations with the Crown or continue to participate in the Waitangi Tribunal’s Te Paparahi o Te Raki inquiry.15 The trust board’s stated intention, as presented at these hui, was for direct negotiation, with ‘set goals’ of reaching an Agreement in Principle later that year and a Deed of Settlement in 2014.16

A draft mandate strategy, signalling the trust board’s intention to represent ‘Te Iwi o Ngātiwai’ in direct negotiations with the Crown, was released at the conclusion of these hui.17 Under the heading ‘Who are the Crown dealing with/Claimant Definition’, the Ngātiwai claimant group was said to include ‘all individuals, whanau and hapu of Ngātiwai that trace descent from our founding ancestors Manaia II, Tahuhunuiorangi and Te Rangihokaia’. This would be ‘refined and confirmed throughout the course of negotiations’.18

Fourteen marae were listed; these were the same as the 14 marae listed in the trust deed and from which the board’s members were elected. Lists of present-day and historical Ngātiwai hapū were left blank: ‘To be confirmed’. The Ngātiwai claims to be settled by the proposed mandate included ‘all remaining claims made at any time (whether or not the claims have been researched, registered and/or notified) by any claimant or anyone representing them that are based on a claimant’s affiliation to Ngātiwai and/or one of the listed marae’. Wai 244 and Wai 262 were specifically mentioned along with: ‘Others to be confirmed?’19

A revised mandate strategy was submitted to the Crown on 19 July 2013. This incorporated changes made in response to concerns and suggestions from iwi members. Thirteen present-day and 44 historical hapū and 32 Wai claims were now listed. The strategy acknowledged that some Ngātiwai hapū and marae were also listed in the claimant definitions of other large natural groups; the trust board would ‘seek agreement to the treatment of these hapu and marae with the Crown, following discussions with the relevant groups’.20 At a meeting with Patuharakeke on 23 July, the board said the strategy was ‘built on the requirements of what the Crown wanted’.21

Five days later, on 24 July, this revised strategy was endorsed by the Crown.22 This, as has been subsequently acknowledged by the Crown, was an ‘error in Crown process’, because it occurred before submissions on the strategy had been received and addressed.23 For example, counsel for the Patuharakeke Trust Board wrote to OTS on 29 July 2013, the same day the endorsed strategy was made public:

It has of last week come to the attention of Patuharakeke that the Ngati Wai Trust Board is in the process of submitting its Mandate Strategy to the Crown. Essentially, Patuharakeke did not receive any information about the Ngati Wai Trust Board Mandate Strategy prior to its submission or any information detailing how the claims of Patuharakeke will be affected by any potential settlement of Ngati Wai.24

We received no evidence of a reply from OTS.

5.2.2 The Crown’s role in the development of the mandate strategy

The evidence shows the Crown’s approach to Ngātiwai up until its endorsement of the mandate strategy was driven to a large degree by other policy priorities: completing the settlement in Tāmaki Makaurau, commencing negotiations with Ngāpuhi, implementing the share offer, and its self-imposed 2014 deadline for settling all historical Treaty of Waitangi claims. In turn, the Ngātiwai Trust Board said, it felt pressured into responding to the Crown’s timetable and priorities. In the board’s view, Ngātiwai’s two southern hapū had had to accept a settlement ‘imposed’ upon them, ‘or otherwise miss out’.25 These early stages of the mandate process set a pattern in which the trust board focused on efforts to maintain cohesion at the expense of involving hapū, whānau, and Wai claimants in its decisions. As a response to the Crown’s objective of an ‘accelerated process’ for settlement, this was understandable. But when the claimant definition included such a high proportion of ‘shared’ hapū, it was a high-risk strategy.

The Crown’s premature endorsement of the mandate strategy meant there was no proper process for hapū or others to provide their views to the Crown before the strategy was endorsed. Officials subsequently described this as causing ‘tension and delays in getting to deed of mandate’ and noted that it highlighted the need to clarify the claimant definition in the mandate.26

We note that the purpose of providing an opportunity to submit on the mandate strategy is twofold. As the East Coast Settlement Tribunal said, it allows claimants ‘who have a vested interest in a settlement ample time to comment upon, oppose, or make recommendations on the strategy’. The Crown is then able to identify interested parties and has ‘the opportunity to engage with them at an early stage in the process’.27 Neither of those objectives could be achieved in this case, and the Crown has acknowledged this. However, we think the Crown made two further serious errors.

The first was in relation to the inclusion of further claims in the strategy. After the endorsed mandate strategy was published, the Crown ‘instructed’ (the word used by OTS) the trust board to include a further 14 Wai claims in the strategy.28 Trust board representatives travelled to Wellington on 6 August 2013 to meet OTS. The board seems to have had specific concerns with four of these claims, because officials then checked and confirmed by letter the Crown’s view that Wai 245, 620, 688, and 887 should be included in the mandate.29 It was left to the trust board to notify the affected claimants and explain their inclusion. The 14 claims were listed in an addendum to the strategy, which stated that the Crown had ‘inadvertently’ failed to asked that all claims relating to Ngātiwai be included in the strategy previously endorsed.30 Officials appear to have considered that this would ‘be in keeping with’ the Tribunal’s suggestion, in the East Coast Settlement Report, that OTS should write to all Wai number claimants whose claims might be extinguished if a proposed settlement goes ahead to inform them of this fact.31 Seven of these claims related to Ngāti Kororā and Ngāti Takapari and became the subject of urgent claims in this inquiry (Wai 620, Wai 1411–1416). A further three claims related to interested parties to this inquiry: Wai 245, Wai 1464, and Wai 1546.

OTS wrote to the named claimants for the additional claims, on 9 August 2013, seeking submissions and feedback as to whether the claims were intended as Ngātiwai claims.32 The Crown did not, so far as we are aware, acknowledge its mistake to these claimants.33 Such a basic error indicates to us a lack of due diligence on the part of OTS. Moreover, to then require the trust board to explain these late inclusions to the claimants misapplies the East Coast Settlement Tribunal’s suggestion and shows unwillingness to take responsibility for their own mistakes. It also increased the likelihood of souring the trust board’s relationships with these claimants. The Crown’s witness told us the Crown funded hui so that the trust board could ‘explain what had happened’.34 It is clear to us that this placed the board in an uncomfortable position.

The second serious error made by the Crown concerned its handling of submissions on the strategy. Submissions were sought by OTS over three weeks, between 27 July and 17 August 2013. Of 96 submissions received, 51 were in support and 44 opposed, with one taking a neutral stance.35 And yet, despite the early endorsement of the strategy, and the fact that OTS had not yet addressed the submissions, officials advised the trust board to move straight on to implement the mandate strategy, which included holding hui and voting. Officials alerted Ministers in November 2013 that this endorsement and advice exposed the Crown to risk of legal challenge in the Waitangi Tribunal.36

In our view, the poor advice given by officials to the trust board compounded the earlier faults. At this stage, Te Waiariki were not included among the Ngātiwai hapū listed in the endorsed strategy or in the addendum concerning the additional claims. Notes from the mandating hui show the trust board made it clear the additional Wai claims had been included on the Crown’s instruction. On at least one occasion the trust board stated ‘Te Waiariki is not a hapū of Ngātiwai’.37 OTS notes from June 2014 show that by then officials understood Te Waiariki had been ‘re-included in the mandate without prior notification’.38 There is no evidence that officials raised this as a concern, either with the trust board or with Te Waiariki.

Mr MacDonald told us that Te Waiariki were ‘brought into the mandate as a flow on effect of adding those claims’.39 His statement avoids clearly attributing responsibility for decision-making, but to be clear, the Crown told the trust board to add the claims. As a result the trust board included the hapū in its mandate, but not until after the vote had been held. Nowhere in this chain of events was the hapū itself consulted.

5.2.3 The vote

Voting on the mandate began on 17 August 2013, the same day submissions on the strategy closed (several late submissions were accepted, up until May 2014). The resolution to be voted on was:

That the Ngātiwai Trust Board is mandated to represent Te Iwi o Ngātiwai in direct negotiations with the Crown for the comprehensive settlement of all the remaining historical Treaty claims of Ngātiwai including registered and un-registered historical claims.40

Between 24 August and 14 September, the trust board presented its mandate at nine hui. Despite the marae-based structure of the trust board (and the mandate it sought), only three hui were held on marae: at Ngaiotonga, Matapōuri, and Ōmaha Marae. Ōmaha Marae is associated with Ngāti Manuhiri but was included to ensure geographical coverage across the Ngātiwai rohe.41 Six hui were held in major North Island urban centres (one was Whangārei).42 Three hui were held in Australia (two in Sydney, one in Brisbane). Votes were able to be cast at each of these hui. Another hui was held in Whangārei on 19 October, after the result of the mandate vote was known.43

Due to the low turnout, the voting period was extended from 15 September to 13 October. OTS was advised of the vote outcome on 16 October 2013. As noted already, the resolution was supported by a significant proportion (82 per cent) of those who participated in the vote (28 per cent).44

In chapter 4 we noted the Crown’s view that the extinguishment of historical claims is an important reason for giving claimants a say in who will represent them in negotiations. This is why the Crown needed to take great care to ensure that the hapū whose claims are to be settled and extinguished were given explicit opportunity to decide whether they would consent, or not, to the settlement of their claims in the manner proposed.

Taken together, the events surrounding the Crown’s endorsement of the mandate strategy and the subsequent vote leave us with genuine doubt whether the outcome can be said to represent the intent of Ngātiwai members of the ‘shared’ hapū. We are in no doubt, however, that the outcome failed to acknowledge the authority or represent the intent of those hapū. The time-frame for completing the steps leading up to the vote was compressed, and in their haste, officials made several crucial errors of process, which had compounding consequences. We saw no evidence during this period that the Crown identified tino rangatiratanga and tikanga of hapū as needing to be understood or provided for, or protected.

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5.3 Advertising the mandate and the submissions process

5.3.1 The steps taken towards advertising the mandate

The vote demonstrated a clear base of support for the trust board’s mandate, but OTS officials were worried that the Crown’s premature endorsement of the mandate strategy, together with the advice given to the trust board to hold mandate hui before receiving and addressing submissions on the mandate strategy, exposed the Crown to a risk of legal challenge in the Waitangi Tribunal.45 To mitigate this risk, the Crown sought to clarify the claimant definition and the affiliations of affected hapū and agreed to fund an information hui for the trust board to provide information on the amendments made to the mandate strategy in converting it to a deed of mandate. This was done, but when the Minister for Treaty of Waitangi Negotiations met trust board members on Waitangi Day, 2014, ‘significant issues’ remained.46

At the information hui, held in December 2013, officials were concerned that the Ngātiwai claimant community had raised issues with the claimant definition. OTS were concerned that the ‘ancientness’ of the tūpuna in the mandate meant non-members of Ngātiwai were ‘technically’ included in the claimant community; and the trust board had not explained how it intended to represent the eight hapū it shared with other large natural groups. The second issue was the trust board’s opposition to a ‘parallel process’ whereby Wai claimants could continue to have their claims inquired into by the Waitangi Tribunal’s Te Paparahi o Te Raki inquiry.47

In May 2014 OTS officials informed the Minister that, despite the trust board providing further information, the inclusion of ‘key hapū’ and the extent to which the board would represent them was ‘not entirely’ justified. It was the understanding of OTS that ‘there is no single eponymous ancestor’. All efforts to clarify their inclusion, officials wrote, ‘at this stage have been exhausted’. In their view there was ‘no further information [the board] can provide that will clarify the inclusion of these hapū’. Mitigating legal risk continued to be a significant objective of Crown action in this period, but officials decided that ‘[f]urther discussions … following submissions … will be more effective in mitigating the risk of litigation’.48

A June 2014 OTS ‘health check’ on the Ngātiwai settlement recorded that two ‘shared’ hapū, Te Kapotai and Te Waiariki, had made urgency applications regarding the Tūhoronuku mandate. Officials expected them to do the same if the Ngātiwai mandate were recognised. Using a ‘traffic light’ assessment of risk level, this was identified as red (high risk). The mitigation strategy had focused on obtaining information from the trust board that

will justify the inclusion of these hapū … but we are not confident this was successful. There is no single eponymous ancestor for Ngātiwai, which has increased the complexity of developing a claimant definition for Ngātiwai. This is likely to create difficulties throughout negotiations.49This was not the only difficulty these hapū presented to OTS. In a note on initial work towards the historical account that would be included in a deed of settlement, the health check said: ‘There is a difficulty in determining breaches in the case of overlapping hapū.’50

As we have already described, on 27 June 2014 a full meeting of the Ngātiwai Trust Board resolved to endorse the Deed of Mandate, ‘subject to any minor technical amendments’, and to submit it for formal approval by the Crown.51 The deed was advertised on 12 July 2014.52 Additional bodies and positions were proposed to provide advice to the trust board and its Treaty Claims Committee from kaumātua, hapū, marae, rangatahi, and Wai claimants. The latter was partial acknowledgement of the ‘foreclosure’ of options available to Wai claimants through the Waitangi Tribunal (and despite OTS encouragement to investigate a parallel process for Wai claimants).53

5.3.2 The submissions process

OTS invited submissions on the proposed mandate over eight weeks from 12 July to 6 September 2014. The intent of this submissions round was to allow those with concerns about the ‘detail’ of the mandate to raise them directly with the Crown. Of 269 submissions, 125 were in favour (including 26 late submissions) and 144 against.54 This number of submissions, OTS informed its Minister, was ‘unprecedented for an iwi of Ngātiwai’s size’. The main issues identified were:

  1. A perceived lack of communication and engagement from NTB with Wai claimants, whānau, and hapū, as well as a lack of whānau and hapū representation;
  2. Wai claimants’ preference to have claims heard through the Tribunal;
  3. Concerns with the operation of NTB, in areas such as finance and administration; and
  4. The inclusion of the following hapū in the Ngātiwai claimant definition:
    1. Te Waiariki, Ngāti Korora, and Ngāti Takapari;
    2. Patuharakeke; and
    3. Te Kapotai.55

OTS undertook an internal analysis of submissions and described the extent of opposition to the mandate as unprecedented. The common factor in submissions was ‘the perceived lack of whānau and hapū involvement in the process’.56 Officials told the trust board of their concern that the claimant community might initiate steps to withdraw the mandate before it had been recognised and warned that ‘without any action from NTB to address submitters’ concerns, we cannot recommend the DoM to Ministers for consideration’.57

On 18 October 2014, OTS held a series of hui with submitters (among whom were several of the claimants in this inquiry) to understand their concerns, and subsequently formally responded to submitters in writing.58 A repeated concern was the marae-based structure of the Ngātiwai Trust Board, which required people to align with a single marae (when many were aligned with more than one marae) and did not allow for hapū governance.59

OTS officials appeared to conclude from these hui that opponents of the mandate wanted better engagement from the trust board with them ‘as whānau, hapū, and Wai claimants’:

At a debrief meeting with NTB we advised NTB these issues were significant and posed a considerable risk to the mandate if left unaddressed. We advised NTB we considered it necessary for them to develop and implement a plan to strengthen engagement and communication, and that it would be appropriate for NTB to demonstrate it could respond to these concerns without direction from OTS.60

Internally, however, officials now considered the trust board’s mandate to be ‘robust’, albeit that ‘improved engagement and communication with the claimant community’ was necessary. Officials sought approval for ‘exceptional circumstances funding’ to assist the board to implement its engagement plan.61

By the end of 2014, OTS officials appear to have come to a view that the mandate was essentially sound. It is difficult for us to understand how they arrived at this conclusion. We acknowledge that characterising the concerns of submitters as matters of perception, as in the ‘perceived lack of whānau and hapū involvement in the process’, was because officials were trying to summarise the views provided by submitters.62 But this language was carried through into the briefing to Ministers recommending mandate recognition, which identified ‘perceived lack of communication and engagement’ from the trust board, and ‘perceived lack of hapū representation’ in the Deed of Mandate.63 Our conclusion is that valid issues were raised concerning the inclusion of the hapū, but the Crown did not treat them as substantive matters and did not take sufficient steps to address them.

5.3.3 The trust board’s engagement plan

Between December 2014 and March 2015 the trust board implemented its ‘Communications and Engagement Plan’ with the goal of assisting ‘the transition’ to a Crown recognised Deed of Mandate.64 Five objectives were identified, to address the key concerns raised by a number of submitters and provide a means for improved understanding and engagement in the settlement process set out in the Deed of Mandate:

Objective 1 Engage with the following people or groups:

  • Individual kaumatua or groups of kaumatua
  • Individual Wai claimants or groups of Wai claimants and key submitters
  • Representatives of whanau, hapu, marae or other local groups.

Objective 2 Release monthly Board summaries via NTB trustees and NTB communication channels (ie website and fb).

Objective 3 Hold a special general meeting to review the NTB Trust Deed on 28 February 2015.

Objective 4 Commence planning to hold a wananga that discusses PSGE [post settlement governance entity] representation after the DoM has been endorsed (date to be confirmed).

Objective 5 Initiate quarterly hui-a-iwi to report back on work of the NTB and TCC [Treaty claims committee] engagement and communications work on 28 March 2015.65

In early 2015, OTS had also met with hapū to discuss their concerns with the Deed of Mandate: on 15 March with Te Waiariki and on 8 April with Patuharakeke. Te Kapotai declined to meet.66

In July 2015, the board provided OTS with a report outlining its ‘position to its Hapū’. The report acknowledged that hapū needed to be ‘more involved within the scope of our mandate and ongoing settling of their claims’. The concerns of kaumātua regarding tikanga were valued and respected and the board undertook to ‘make every effort in our engagement with our people’ consistent with principles of ‘Te Kotahitanga, Te Aroha, Te Whakapono, Te Rangimarie and Te Tumanako’. Aroha would be ‘a medium of healing the breaches that have occurred through this process’.67 The report restated the provision in the Deed of Mandate to ‘enable and provide’ hapū and marae to provide advice to the trust board ‘on their involvement in the negotiations and settlement processes’.68

In August 2015, the trust board provided the Crown with further amendments to the Deed of Mandate. Two further advisory roles would be added to the Treaty Claims Committee, for applicants with ‘demonstrated skills and experience and support from among Wai claimants, hapū or rangatahi’. The Crown has acknowledged that those who had raised concerns over hapū representation were not asked whether this addressed their issues.69 Two more claims, Wai 1148 and Wai 1837 were included. (The latter has brought a claim in this inquiry.) Provision for a parallel Waitangi Tribunal process was contemplated, but only if all parties involved ‘including all Wai claimants’ agreed, and if the trust board and the Crown could agree on the design of the process.70

On 7 August 2015, OTS and Te Puni Kōkiri provided a report to their respective Ministers seeking their agreement to recognise the mandate of the Ngātiwai Trust Board to represent Ngātiwai in Treaty settlement negotiations.71

5.3.4 Crown efforts to resolve problems identified with the mandate

For almost two years following the vote, up until August 2015, the trust board and OTS expended much time and effort to resolve the problems that persisted with the Deed of Mandate. In the end they were unsuccessful, and the concern among OTS officials that they would face ‘litigation’ in the Waitangi Tribunal, has proved correct. Indeed, the briefings given to Ministers in 2015, which recommended recognition of the mandate, warned that despite the Crown having taken ‘all reasonable steps’ litigation was still expected.72

But was that assessment accurate? Had the Crown taken all reasonable steps?

To begin to answer this question we use a different lens than that adopted by OTS officials. In our view, while officials were concerned about the risk of litigation, the greater risk was that the Crown’s actions would breach the principles of the Treaty of Waitangi. We saw no evidence that OTS viewed its responsibilities in this light, particularly in terms of active protection of hapū.

When OTS met submitters on the mandate in October 2014 it was the first time they had engaged in a serious face-to-face way with the Ngātiwai claimant community. The message they took away was unambiguous: that the trust board structure did not allow for hapū governance.73

The Crown submitted that, because the report of the Ngāpuhi Mandate Tribunal was released after OTS had called for, assessed, and responded to submitters’ concerns, it was unreasonable to expect that officials should have taken its findings into account: ‘the mandating process for Ngātiwai was completed prior to the release of the Ngāpuhi Mandate Inquiry Report’.74 But as we discuss in chapter 3, this was hardly the first time that the Tribunal had made unambiguous statements about the Crown’s responsibilties to hapū.

OTS did not appear to consider seriously that hapū should be involved in making decisions about when and how their historical Treaty claims were to be settled. While the Crown was prepared to insist on some changes to the mandate, notably the inclusion of certain claims in August 2013, it had no appetite to require that the underlying problems with the trust board’s structure (discussed in chapter 4) be addressed.

OTS acknowledged that governance, and hapū participation in governance, was a key concern for opponents to the mandate, but they concluded that this meant they wanted better ‘engagement’ from the trust board. The two concepts and their outcomes are very different. Governance in this context is the ability for hapū to make decisions and choices according to their tikanga, yet the officials’ solution was to recommend that the trust board needed to communicate and engage better with those opposed to the mandate to settle their claims.

In our assessment, opponents of the mandate generally had a good understanding of the proposed settlement process. They had been engaged, by attending hui, writing to the trust board and OTS, and making submissions, at least since the early days of the mandate strategy.

The lack of a clear conception by the Crown of its Treaty obligations is apparent in an email from June 2015, when officials advised the newly appointed Chief Crown Negotiator James Willis:

we don’t have any remaining concerns with the draft deed of mandate, we had a good discussion with Ngatiwai regarding providing for hapū voice/role and agree [there] do not need to be any changes to their structure. Ngatiwai are in the next couple of weeks having a meeting with hapū representatives to discuss how/what type of role they can play going forward. It is great that this is happening ahead of mandate recognition as it shows that they are taking positive steps to address concerns raised and may help with any potential Waitangi Tribunal litigation. It is likely a mention of the pro-active response to hapū will be reflected in the DoM document.75

It appears to us that the Crown did not have a clear view of its Treaty obligations to the hapū opposed to their inclusion in the mandate, and were therefore not prepared to insist that any substantive changes be made to the Deed of Mandate to address the issues raised. The proposed advisory roles were a superficial response only, which did not deal with the more fundamental issues of hapū representation and a governance role for them.

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5.4 The decision to recognise the mandate

The decision to recognise a mandate to settle historical Treaty of Waitangi claims is made by the Minister for Treaty of Waitangi Negotiations and the Minister for Māori Development. OTS and Te Puni Kōkiri provided a joint briefing to the Ministers on 7 August 2015 recommending that the Deed of Mandate be recognised. Ministers raised a number of concerns and questions and consequently changes were made to the briefing over several iterations.76

Ministers sought clarity as to the relative importance of the vote and the submissions process. The Minister of Māori Development asked that information about the submissions be put in an annexeure ‘so that it is not in the main brief, or at least separate it away from the voting information’. He asked officials to be clear in their briefing that ‘the voting process for the Ngātiwai Trust Board is the most important factor to consider in determining whether to recognise the mandate’.77 In response, OTS agreed to ‘set out that importantly, we consider the vote conferred a mandate’. However, they stated:

We do not consider it appropriate to say that the voting process for the Ngātiwai Trust Board is the most important factor to consider in determining whether to recognise the mandate of the Ngātiwai Trust Board. We consider there are many factors which need to be taken into consideration when making a decision on whether to recognise a mandate.78

One reason for officials’ caution may have been the lack of clarity at the time the vote was held as to who, exactly, comprised Ngātiwai. At that time it was clear that significant issues remained to be addressed. The vote was concluded in October 2013 but the Crown did not recognise the mandate until 21 October 2015, two years later.

Officials emphasised the work that had been done in response to submissions:

We consider the work undertaken since submissions were received will have made the mandate stronger and more robust. We consider it important to show that [the] Ngātiwai Trust Board tried to address concerns and that Ministers were aware of these efforts at the time they made their decision …79

It is not clear to us, though, that the issues of claimant definition that the Crown was so concerned about in June 2014 had been addressed so that the Crown could be reasonably satisfied the definition properly comprised te iwi o Ngātiwai. The final report recommending recognition of the mandate was provided on 15 October 2015. The matter of hapū representation remained ‘a complicated issue’. Selecting hapū representatives was difficult because ‘besides the entities representing the hapū who oppose their inclusion in the DoM, there are no identifiable representative structures within Ngātiwai from which to choose hapu representatives’. However, all hapū would be enabled to ‘provide advice’ to the trust board ‘on their involvement in the settlement process’. The report went on to make the following comments:

In general we do not interfere with the representative structure of entities as we consider this should be based on the tikanga of the claimant community. Some entities may have representatives appointed on a marae basis, others may be appointed on a hapū or iwi-wide basis.
We do not consider it appropriate or practical that NTB change its marae-based structure. We discussed the possibility of hapū-based representatives on the TCC, however, we agree with NTB that this could create logistical problems. Introducing a representative on the TCC for each hapū would make the TCC a considerably large group, which may impact the TCC‘s effectiveness as a committee leading the Treaty claims work for NTB.
We consider the engagement NTB has had and the establishment of two new roles on the TCC addresses concerns about hapū representation to a suitable extent. We consider the new TCC members will be able to provide a voice for hapū. NTB is aware of the Crown’s expectation that it will uphold this commitment and this will be checked as part of mandate maintenance.80

The report mentioned the intention to introduce new roles on the Treaty Claims Committee, saying these would address ‘concerns about hapū representation to a suitable extent’, but not that these roles would be advisory only.

The report then went on to say the trust board was considering different models for a post settlement governance entity (PSGE) and that this demonstrated the board was ‘aware of concerns on the matter of hapū and is actively looking at ways to address them’.81

The report considered it ‘highly likely’ the three hapū groups that were opposed to being included in the mandate would file applications for an urgent inquiry into the Crown’s recognition of the mandate:

There is no way of fully mitigating this risk without removing these hapū from NTB’s DoM. Removing these hapū would undermine NTB’s desire to represent the members of these groups who identify as Ngātiwai as well as the comprehensiveness of a Ngātiwai Treaty settlement. It may also set a precedent for removal of hapū from other claimant definitions based solely on opposition from some members of those hapū.82

The concentration on mitigating the Crown’s risk may have hindered officials from seeing the inconsistency of their position. We agree that hapū should not be removed from a claimant definition (and a Deed of Mandate) solely because of opposition from some individual hapū members. However, it is equally undesirable to include hapū only because some individual members support it.

Officials had met or sought to meet the hapū to understand their opposition. They had asked the trust board to clarify the extent to which these groups were included in the Deed of Mandate, and the board had done this by signing ‘an accord with Ngāpuhi and Ngāti Whātua setting out a cooperative approach to ensure the interests of shared hapū are treated appropriately’.83

Ngātiwai Trust Board ‘processes’ were highlighted as a further area of concern, including the trust deed, however officials considered the trust board ‘meets Crown criteria for transparency and accountability to the claimant community’. The trust board had, in officials’ view, ‘identified the aspects of its internal operations that people are concerned about and taken positive steps to address them’.84

Although officials identified a risk that ‘opposing members of the claimant community’ could seek to withdraw the mandate, they considered the 82 per cent vote in favour of the mandate meant it would be unlikely to succeed.85

The mandate of the Ngātiwai Trust Board to settle historical Treaty claims was recognised by the Crown on 21 October 2015, when the Ministers signed a letter to the trust board confirming their decision.86

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5.5 Crown actions: conclusion

The Crown told us it had only a limited role in the mandating process,87 but the evidence does not support this claim. In our assessment the Crown influenced the timing, pace, form and scope of this mandate at all stages. As we see it, the Crown used its influence to suit its own settlement priorities and this involvement occurred at all levels, from Ministers down to OTS officials. To summarise:

  • The decision to offer separate hapū settlements to Ngāti Manuhiri and Ngāti Rehua impacted on the dimensions of the Ngātiwai large natural group, and impacted negatively on whanaungatanga relationships.
  • The Crown’s settlement priorities and the pace of settlement influenced the trust board’s early efforts to develop a mandate strategy. Little attention was given to the extent of engagement with hapū.
  • The Crown’s premature recognition of the mandate strategy prevented hapū from adequately engaging with the trust board through the first round of submissions.
  • Despite endorsing the mandate strategy before receiving and addressing submissions, and requiring the late inclusion of additional Wai claims, the Crown recommended pushing on with a vote on the mandate.
  • In contrast to those earlier actions, the Crown subsequently took only limited steps to assist the trust board to resolve the problems made evident through the main submissions process.
  • Having identified governance as a key issue for some hapū, the Crown recommended communication and engagement as the solution.
  • The Crown approved inclusion of shared hapū in the claimant definition despite acknowledging there was insufficient research to justify their inclusion.
  • The Minister of Māori Development sought to downplay the significance of submissions opposing the mandate.
  • The Crown decided to recognise the mandate in the face of acknowledged unresolved issues and despite anticipating claims to be made to the Waitangi Tribunal.

We acknowledge that the Ngātiwai Trust Board sought to take leadership on behalf of Ngātiwai to enter settlement negotiations. We also acknowledge that the Crown was not directly involved in the development of the claimant definition and is not responsible for the structure of the trust board. Nonetheless, the Crown’s actions and omissions prevented the board and hapū from early engagement over the issues that have been the focus of this inquiry, and have contributed to the problems evident in this inquiry.

The approach taken by the Crown, in our view, has focused on its desired end result of an early settlement at the expense of ensuring the rights and interests of those affected are properly protected. A succinct example of this approach comes from the Chief Crown Negotiator James Willis, who in January 2015 told the trust board’s Treaty Claims Committee:

the airing of grievances was an important and cathartic process, but that ultimately a Tribunal process culminating in a report does not result in a settlement and does not even necessarily impact a settlement. He said this was not a case of the Government trying to shut down the Tribunal process, but rather the Government focussing on settlements and redress. He said it was up to NTB to communicate this message to its claimant community.
James referred to the issue raised by some submitters in regards to NTB’s marae-based constitution. He said he didn’t believe this was an issue; hapu are always changing, where marae are constant, focal points for the people. On this basis he believed marae-focussed representation was acceptable for an entity seeking a mandate.88

In the East Coast Settlement Report, the Tribunal quoted a former Treaty settlements Minister, Michael Cullen, who in 2007 said ‘the interests of particular iwi, hapu groups or individuals need not be subsumed during the negotiations process. The negotiations framework can allow for these various interests to be addressed’.89 In the context of the present inquiry, the central question can be framed in this light. Are the interests of hapū, whānau, and individuals being subsumed to those of the iwi, as represented by the Ngātiwai Trust Board?

Our analysis of the structure of the mandated entity in chapter 4, and the way consent was sought for it, showed that the answer to that question is yes. OTS essentially acknowledged this in its briefing to Ministers, when it said ‘every attempt’ had been taken to mitigate the risk of hapū seeking redress through the Waitangi Tribunal, short of removing them from the mandate. In saying they ‘do not interfere with the representative structure of entities as we consider this should be based on the tikanga of the claimant community’, OTS has misunderstood both the meaning of representation and the requirements of tikanga.

We note that ‘hapū-based representatives’ were considered for the trust board’s Treaty Claims Committee, but were rejected because the enlarged size of the committee ‘could create logistical problems’.90 We cannot accept this as a justification not to address the issue of hapū representation and accountability in the Deed of Mandate. Sufficient flexibility is required within the negotiations framework to enable all interests to be addressed. Officials, having identified opposition by some hapū, seem to have decided that any solution would need to involve all hapū. Why this should be is never explained. This kind of thinking seems to have resulted in the idea that ‘hapū’, ‘rangatahi’, or ‘Wai claimants’ as types of interest group needed to have more input into the mandated entity. Practically, in Treaty terms, the Crown should recognise the tino rangatiratanga of all hapū, but especially the hapū who have objected to their inclusion in the Deed of Mandate: Patuharakeke, Te Kapotai, and the Te Waiariki, Ngāti Kororā, and Ngāti Takapari group.

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Notes

1. Document A9(a), exhibit I, p 93

2. Document A2(a), exhibit B, p 191; doc A43(b), exhibit J, p 454

3. Document A43(b), exhibit J, pp 458, 460

4. Document A94, pp 2–3

5. Transcript 4.1.1, pp 406–407

6. Submission 3.3.19, p 12

7. Document A94, p 3; submission 3.3.19, p 12

8. Submission 3.3.19, pp 12–13

9. Document A73(a), exhibit 2, p 11

10. Document A23(a), exhibit H, p 27

11. Document A2(a), exhibit B, p 192; LNG status was recognised by the Minister of Māori Affairs and Minister for Treaty of Waitangi Negotiations on 28 August 2012, although we have not seen that letter: see doc A73(a), exhibit 7, p 79); doc A43(b), exhibit J, pp 308–309.

12. Document A43(b), exhibit J, pp 306–307

13. Ibid, p 528

14. By September 2011, the date for completion had been pushed out to 2016: ‘Nats Admit Treaty Settlements “Goal” will be Missed’, 17 September 2011, http://www.stuff.co.nz/national/politics/5643180/Nats-admit-treaty-settlements-goal-will-be-missed (accessed 8 May 2017).

15. Document A3, p 2

16. Document A99(a), exhibit 1, p 2

17. Document A2(a), exhibit B, pp 27–28; doc A19(a), exhibit L, pp 24–57

18. Document A19(a), exhibit L, p 34

19. Ibid, pp 34–35

20. Ibid, exhibit M, pp 58, 68–70

21. Document A28(a), exhibit 4, pp 20–21

22. Document A73(a), exhibit 7, p 77; doc A19(a), exhibit M, pp 58–93

23. Document A73(a), exhibit 7, p 77; submission 3.3.23, p 45

24. Document A28(a), exhibit 11, p 62

25. Document A99(a), exhibit 1, pp 2, 18

26. Document A73(a), exhibit 7, p 77, exhibit 8, p 93

27. Waitangi Tribunal, The East Coast Settlement Report (Wellington: Legislation Direct, 2010), p 67

28. Document A19(a), exhibit N, p 97

29. Ibid, pp 97–99

30. Ibid, p 95

31. Ibid, p 98

32. See, for example, document A23(a), exhibit A, p 1.

33. Transcript 4.1.1, p 261

34. Ibid, pp 261–262

35. Document A62, p 35. A February 2014 OTS briefing to its Minister noted 93 submissions, with 49 in support, 43 opposed, and one neutral: doc A73(a), exhibit 7, p 77.

36. Document A38(a), exhibit F, pp 58–59

37. Document A99(a), exhibit 3, p 39

38. Document A73(a), exhibit 8, p 97

39. Transcript 4.1.3, p 216

40. Document A62, p 34

41. Document A28(a), exhibit 4, p 21

42. Ibid, exhibit 1, p 3; doc A19(a), exhibit M, p 88

43. Document A62, pp 29–34; doc A91, p 6

44. Document A91, pp 6–7

45. Document A38(a), exhibit F, p 59

46. Ibid, exhibit E, p 50

47. Ibid, pp 50–51

48. Document A73(a), exhibit 7, p 84

49. Document A106(a), exhibit C, p 11

50. Ibid, p 14

51. Document A62, p 41

52. Document A28, p 20

53. Document A19(a), exhibit O, pp 124–126

54. Document A91, pp 7–8

55. Document A69(a), p 1

56. Document A73(a), exhibit 8, pp 196, 198

57. Document A39(a), exhibit C, p 8

58. Document A91, p 9; doc A2(a), exhibit L, pp 405–406

59. Document A127, pp 2–5, 8–9

60. Document A73(a), exhibit 8, p 87

61. Ibid, exhibit 1, p 2, exhibit 8, p 87

62. Ibid, exhibit 8, p 198

63. Document A91(a), exhibit F, p 36

64. Document A2(a), exhibit H, pp 319–328

65. Ibid, exhibit H, p 322

66. Document A2, p 6

67. Document A23(a), exhibit H, p 27

68. Ibid, exhibit H, p 39

69. Transcript 4.1.1, p 294

70. Document A91, p 12; doc A2(a), exhibit B, pp 15–16, 21, 24. Te Puni Kōkiri’s advice to its Minister was that the criteria for a parallel process were requirements of the Crown rather than the trust board: doc A128, p 19.

71. Document A91(a), exhibit F, pp 35–58

72. Ibid, exhibit I, p 127

73. Document A2(a), exhibit G, pp 309–310

74. Submission 3.3.23, p 38

75. Document A73(a), exhibit 8, p 239

76. Document A91(a), exhibits F–I, pp 35–156

77. Document A128, p 22

78. Ibid, p 21

79. Ibid, p 21

80. Document A73(a), exhibit 6, p 69; doc A91(a), exhibit I, p 133

81. Document A73(a), exhibit 6, p 69

82. Ibid, p 71

83. Ibid

84. Ibid, p 70

85. Ibid, p 72

86. Document A2(a), exhibit A, p 1

87. Submission 3.3.23, p 44

88. Document A73(a), exhibit 8, p 242

89. Waitangi Tribunal, East Coast Settlement Report, p 66

90. Transcript 4.1.1, p 269

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