Chapter 6: Findings and Recommendations
- 6.1 Introduction
- 6.2 Principles of the Treaty – active protection
- 6.3 Findings
- 6.4 The prejudice
- 6.5 Recommendations
Ngātiwai is a relatively small coastal iwi bordered by its larger neighbours; to the north Ngāpuhi, to the south Ngāti Whātua. Its core group of hapū around Whangaruru and Whananāki traditionally travelled widely and regularly across the outer Hauraki Gulf, forming close kinship bonds with other coastal communities. These extend into the Bay of Islands to the north, east to Aotea (Great Barrier Island), and south to Mahurangi. The whakatauki ‘ngā kōpikopikotanga maha o Ngātiwai’ speaks to this overlapping interconnectedness and constant sea journeying as the defining feature of what it is to be Ngātiwai.
The origins of Ngātiwai are diverse, resulting in a wide network of relationships and whakapapa connections. There is no eponymous ancestor as Rāhiri is to Ngāpuhi, yet descent from the tūpuna Manaia I and Manaia II and their descendants is said to form a unique Ngātiwai heritage. But most Ngātiwai hapū – eight out of 12, according to the Ngātiwai Deed of Mandate – are ‘shared’ and affiliate to other iwi, primarily Ngāpuhi but also Ngāti Whātua.
The core Ngātiwai hapū exercise ahi kā within their small coastal communities. Since the mid-1980s, marae have been to the fore in these communities, and perhaps for this reason these hapū have not developed their own separate governance structures. But the larger shared hapū, including the hapū claimants in this inquiry, Patuharakeke and the Te Waiariki cluster, have continued to organise and to make their own decisions. They have structures to represent their interests with groups such as the Crown, the Ngātiwai Trust Board, and Tūhoronuku. Their histories show that hapū remain an essential source of identity and organisation in the inquiry district.
The Crown has recognised the mandate of the Ngātiwai Trust Board to represent Te Iwi o Ngātiwai in negotiating a settlement of all the remaining historical Treaty claims of Ngātiwai. To the extent the claims of the hapū included in the mandate relate to Ngātiwai tūpuna, the settlement of these claims will be negotiated by the trust board. The central question we must determine in this urgent inquiry is whether the Crown has breached the principles of the Treaty of Waitangi by recognising this mandate without the support or consent of the hapū named in it.
It is the Tribunal’s long-standing assessment that the Crown has a duty to protect actively the tino rangatiratanga of Māori communities. We have examined what the parties told us about their exercise of tino rangatiratanga in the context of Ngātiwai and of Treaty settlement negotiations. Two aspects stood out: first, the importance of ensuring collective decision-making according to tikanga, and secondly that whanaungatanga obligations can be maintained. It was emphasised to us that tino rangatiratanga was not only exercised by hapū, but also by whānau, iwi, marae, and trust boards at certain times and according to their particular circumstances. In chapter 3, we concluded that the Crown had an obligation to take account of this feature of the ‘Ngātiwai claimant community’ as it sought to enter Treaty settlement negotiations.
Neither the Crown nor the Tribunal has previously maintained that hapū consent is a requirement to achieve a mandate.1 In situations where hapū play a central role in the social and political life of their communities, however, the Crown has obligations to ensure that hapū can determine how and by whom they will be represented in settlement negotiations and are able to make decisions according to their tikanga. In this inquiry the hapū claimants have asserted their tino rangatiratanga and we accept that hapū are an essential source of identity and organisation within Ngātiwai. This is particularly so for the shared hapū.
As we set out in chapter 3, we consider the minimum standards established by the Ngāpuhi mandate Tribunal provide the appropriate test of the Crown’s duty of active protection in this urgent inquiry.
In the context of its decision to recognise a mandate, the Crown has obligations to:
- ensure that it is dealing with the right Māori group or groups, having regard to the circumstances specific to that claimant community so as to protect its intra-tribal relationships;
- practically and flexibly apply the large natural groups policy according to the tikanga and rangatiratanga of affected groups;
- allow for an appropriate weighing of interests of groups in any recognised mandated entity, one that takes into account factors including the number and size of hapū, the strength of affected hapū, and the size and location of the population; and
- recognise that the structure of the mandated entity must allow for hapū interests to be tested and heard.
An assessment against these standards provides the basis for protecting actively the rangatiratanga and tikanga of hapū that are opposed to their claims being negotiated by the mandated entity. The protection of hapū interests must then be weighed with that of non-hapū interests in the modern context.2
The hapū claimants in this inquiry, Patuharakeke, Te Waiariki, Ngāti Kororā, and Ngāti Takapari, and the interested party Te Kapotai, were also claimants in the Ngāpuhi mandate inquiry, and our assessment of their strength or importance to their communities does not change just because we are examining a different mandate. The Crown was in a position to consider the Ngāpuhi standards given the timing of the report’s release, and it had the opportunity to pause and consider that Tribunal’s findings, and apply the standards. We consider that, had the Crown applied these standards to Ngātiwai, this would have confirmed its duty to protect actively the tino rangatiratanga of the hapū.
In recognising the mandate of the Ngatiwai Trust Board, the Crown should have been sufficiently familiar with the particular circumstances and tikanga of Ngātiwai and its affiliated groups in order to meet its active protection obligations. We do not consider that the Crown took the steps necessary to reasonably inform itself, so it could properly make this assessment.
In recognising the mandate of the Ngātiwai Trust Board to negotiate a settlement of the historical Treaty claims of Te Iwi o Ngātiwai, the Crown failed to protect actively the tino rangatiratanga of the hapū included in the Deed of Mandate. We now set out the ways in which the Crown has failed to discharge its duty.
The Crown told us that its role is to recognise mandates, not to confer them, and that it had only limited involvement in the development of the trust board mandate. But the evidence presented in this inquiry does not support this claim.
The Crown played a significant and determinative role in the events leading up to the vote on the trust board’s mandate. This included influencing the timing and pace, as well as the form and scope of the mandate. In 2009, the Crown decided to seek separate settlements for the historical Treaty claims of Ngāti Rehua and Ngāti Manuhiri, two hapū of Ngātiwai. Although the Ngātiwai Trust Board agreed to this approach, it was not without misgivings. Agreement constituted a significant demonstration of good faith by the board. The board’s subsequent single-minded focus on attempting to maintain the unity of the iwi during mandating was a direct consequence of these settlements.
Until 2012, the Crown sought to include Ngātiwai within a larger Northland settlement, but then changed its approach and decided to recognise Ngātiwai as a distinct group for settlement purposes as part of an accelerated settlement process. The deadlines which were set for the Ngātiwai Trust Board to seek a mandate to represent the iwi were timed to meet other policy priorities: the government’s goal to achieve all Treaty settlements by 2014, and also the requirements of the government’s asset sales programme.
Clearly, in 2013 the trust board was not ready: it had not yet researched nor decided which of Northland’s East Coast hapū were Ngātiwai and which were not. The various iterations of the Deed of Mandate that the trust board produced responded to the requirements laid down by the Office of Treaty Settlements. OTS did not insist on further research to settle questions of claimant definition or which claims would be settled, before allowing the process to proceed.
In fact, the Crown pre-empted proper consideration of those encompassed by the trust board’s mandating strategy, by endorsing the strategy in July 2013 before considering submissions and then advising the board to proceed to a vote. The claimant definition was to be refined and confirmed during settlement negotiations, requiring voters to endorse a nebulous entity of which some were only potentially a part. At the same time, Crown settlement practice and in particular the Crown’s understanding of whakapapa relationships were behind its instruction to include additional Wai claims in the mandate. In this way Te Waiariki was brought within the mandate by Crown direction and without proper consultation or provision for hapū decision-making.
The evidence of the Ngātiwai Trust Board made clear to us the extent to which the form and content of the Deed of Mandate responded to Crown priorities rather than the tikanga of included hapū. The board also felt constrained by Crown policy when it sought to respond to concerns that were raised with the mandate.
The Crown’s own aims for robust and equitable settlements, as expressed in the Office of Treaty Settlements’ Red Book guide to settlement negotiations,3 have been subsumed by its settlement priorities. This leads us to question the effectiveness of the policies setting out the Crown’s approach to negotiating Treaty settlements.
The Crown has a duty to ensure it is dealing with the right Māori group or groups, having regard to the circumstances specific to that claimant community, so as to protect its intratribal relationships. The claimants in this inquiry agreed with the Ngātiwai Trust Board that the mandating process has been hugely destructive of relationships. Whanaungatanga has been damaged.
Whanaungatanga is a principle that underpins tikanga. Therefore, to avoid damage to whanaungatanga the Crown needs to ensure that hapū – and other groups – are able to make decisions and resolve disputes according to their tikanga. In the context of developing and agreeing to the mandate, the lack of proper representation and provision for hapū decision-making within the mandated entity meant this was not achieved. Harm to whanaungatanga also resulted from the uncertainty as to who is included within the mandate, and on what basis.
We note that the Tribunal has previously made a number of findings emphasising the need for the Crown to respect tikanga during mandating. The Te Arawa settlement process Tribunal in its 2007 report stressed the importance of the Crown knowing and understanding ‘the tikanga that gives practical expression to the cultural preferences underpinning the exercise of tino rangatiratanga, kaitiakitanga, mana, and Māori social organisation’.4 It appears to us that Crown practices still have not sufficiently evolved to take full account of the range of interests at play in settlement negotiations.
The Crown’s early actions in determining the pace, scope, and form of the mandate, set out above, were the major contributing factor to the rifts that now exist among the groups involved in the mandate. Further, Crown officials acknowledged that the Crown’s premature endorsement of the mandate strategy was likely to provoke increased opposition and risk of litigation against the Crown. This duly occurred, but the Crown’s response focused on minimising risk to its position rather than any consideration or effort to minimise damage to whanaungatanga.
The Crown has an obligation to recognise that the structure of the mandated entity must allow for hapū interests to be tested and heard. The Ngātiwai Trust Board is appropriately structured for its current primary purpose under the Māori Fisheries Act 2004 of administering the trust fund. It should not have been recognised by the Crown as fit to negotiate a Treaty settlement representing a population with such a large proportion of ‘shared’ hapū, that is, hapū associated with multiple iwi. As a unitary body with control and decision-making concentrated at the top, in the board, the structure has struggled to respond to the concerns raised about its ability to represent and be accountable to its members effectively in the context of settlement negotiations. The trustees do not in fact represent any Ngātiwai hapū, let alone the ‘shared’ hapū, nor the marae they utilise: the trust deed restricts the trustees to managing the interests of all Ngātiwai beneficiaries in relation to the trust fund.
Trustees are elected from marae and the Crown suggested that this meant they were adequately representative of particular communities. In some cases the marae and hapū communities significantly overlap, but there is no evidence that marae committees or trustees have any authority to make decisions or speak for hapū on the settlement of Treaty claims. Nor, for some marae communities, is a marae representative elected for any purpose appropriate to the circumstances of Treaty settlement. More fundamental, however, is that trustees, however they are chosen, are accountable to the entire group and not to the community that selected them.
After the mandate was formally submitted to the Crown for recognition by Ministers, OTS undertook a public submissions process. The issues we have identified with the structure of the trust board were raised in these submissions. In particular, the Crown was aware that the lack of proper hapū representation was of particular concern. In this context, we note the evidence presented that the Minister of Māori Development sought to downplay the significance of submissions opposing the mandate when deciding whether to confirm the mandate in favour of the trust board.
The Crown responded by treating the issue of hapū representation as a matter of perception. It suggested a process of communication and engagement as an appropriate response. Submitters were not asked if this would allay their concerns. Nor were they invited to contribute to a solution.
In addition, the trust board proposed several advisory bodies and roles, intended to provide a place for hapū, kaumātua, Wai claimants, and rangatahi to advise the trust board during the negotiation process. These proposals amount to an acknowledgement that the trust board, on its own, is unable to provide meaningful representation of these groups. But the proposed advisory bodies and roles do not offer meaningful representation of these groups either, as advisory groups cannot make choices and participate in decision-making.
The trust board has encountered great difficulties in attempting to reform its governing deed. These possible changes do not appear to address the capacity and suitability of the board to represent Ngātiwai in settlement negotiations. The board told us its preference is to focus on ensuring a post-settlement governance entity can be appropriately structured to meet the needs of its community. That is certainly a matter of great importance. However, as Ngātiwai begin to restore their relationship with the Crown – a fundamental aim of the settlement process – questions of representation and accountability are too important to be left for later. The structure of the trust board is a matter for the trustees and beneficiaries. Its deficiencies do not amount to an action or omission of the Crown. However, the board’s insistence on kotahitanga or unity, and its evident reluctance to consider alternatives that would provide better ‘flax roots’ representation, seem to us to stem in part from the harm it perceives has been caused by the two earlier hapū settlements.
We conclude as a matter of fact that the trust board is incapable of representing the interests of hapū in negotiations as presently structured. In recognising the mandate of the trust board, the Crown has not met its obligation to recognise that the structure of the mandated entity must allow for hapū interests to be tested and heard.
We have already stated our concern at the adequacy of research available concerning the claimant definition, especially prior to the vote on the mandate strategy. No new, generally agreed research had been carried out to inform and clarify issues concerning claimant definition. Open, hapū-managed wānanga for whakapapa were not insisted upon nor facilitated by the Crown prior to recognising the mandate. The research relied on by the trust board showed many deficiencies. The process of determining the claimant definition for the mandate was unsatisfactory and incomplete at the time the mandate was voted on. Two years later when the mandate was recognised by the Crown, problems remained. This is evident from the fact that Te Kapotai and their Treaty claims were removed from the mandate after it had gained Crown recognition.
Hapū, whānau, and their kaumātua were not properly informed or consulted in hui-ā-hapu or other processes conducted according to tikanga about their inclusion in the Deed of Mandate. Nor was their consent sought to the mandate.
Voting on the mandate strategy took place from August to September 2013, at the same time as information hui were held and submissions were called for. The Crown points to the significant proportion who voted in favour of the strategy (82 per cent of participants) as the basis for its position that the mandated body is essentially sound and has broad support.
But, the Deed of Mandate did not include any mechanism to gain hapū consent to the mandate. Voting papers did not require voters – whether registered with the trust board or not – to state their hapū or marae. The voting papers were framed in such a way that support or consent from hapū or marae for the mandate strategy could not be assessed: there is no way to verify the Crown’s assertion that marae can represent hapū.5 Nor did the vote reveal which hapū support or oppose the mandate.
The submissions process was the only way that hapū were able to inform the Crown of their support or opposition to inclusion in the Deed of Mandate. This was not, however, designed as a process of securing consent but as a means of gathering feedback.
Hapū cannot withdraw from the mandate. Only the entire group, ‘Te Iwi o Ngātiwai’, can withdraw support. And whereas the trust board received substantial funding during the mandating process, no funding is available to any group wishing to initiate a process for withdrawal of the mandate from the trust board. The costs for any individual hapū or group of hapū attempting such a process would be prohibitive and therefore unworkable, rendering empty the provision of the withdrawal mechanism as offered.
The reasons why Te Kapotai were removed from the Deed of Mandate are unclear to us, as is the process that was followed. We saw no evidence that the withdrawal processes in the Deed of Mandate were considered. What is clear is that the hapū had no say in the decision. The lack of provision for hapū decision-making is of particular concern to us when Patuharakeke have asked but find themselves unable to withdraw, while other Ngātiwai hapū have been offered separate settlements. The Crown’s approach has been inconsistent at best and challenges the principle of equal treatment.
We acknowledge that many of these matters are within the decision-making power of the trust board, but we also view them in the context of Crown policy and actions that dictated an initially rushed process which saw errors committed that were not corrected, and the imposition of a claimant definition for a grouping that was large, but neither natural nor flexible.
The Crown does not confer a mandate to negotiate settlement of Treaty claims – it is the right of Ngātiwai and its associated communities to determine how they will be represented. The Crown’s role is to ensure that it is dealing with an entity that has been properly consented to and authorised by those whom it should be representing. Also, the Crown should ensure that the entity is properly representative and fit for the purpose of representing ‘Te Iwi o Ngātiwai’, including those shared hapū that agree to be included, in settlement negotiations.
Under section 6 of the Treaty of Waitangi Act 1975, our jurisdiction is to inquire into claims submitted by Māori and to determine whether they are well-founded. We must determine whether the Crown acts or omissions that are complained of are inconsistent with the principles of the Treaty and, if so, whether they have caused or are likely to cause prejudice. Where a claim is well-founded, the Tribunal may recommend to the Crown that action be taken to remove the prejudice or to prevent other persons from being similarly affected in the future. Recommendations may be in general or specific terms and should be practical.6
Our findings in relation to Crown actions are:
- The Crown improperly pressured the trust board into responding to the government’s timetable and settlement policies.
- The process of determining the claimant definition was unsatisfactory and incomplete at the time the Deed of Mandate was recognised by the Crown.
- The Crown recognised a Deed of Mandate that:
- does not include mechanisms for individual hapū to consent to the mandate, nor to withdraw from it; empowers an entity, the Ngātiwai Trust Board, that as presently structured is not ‘fit for purpose’ to represent the hapū named in the Deed of Mandate, including the shared hapū; and
- proposes supporting structures or advisory bodies that do not provide meaningful representation of hapū.
- There has been unequal treatment of hapū. Some were settled separately or released from the Deed of Mandate, as compared to other hapū who remain within the Deed of Mandate and have no mechanism to withdraw.
- There is no clear and robust Crown policy for dealing with the range of interests, including ‘shared’ interests, that need to be accounted for in Treaty settlement mandates.
- Crown policy has had the effect of sharing hapū claims among mandated entities without ensuring that hapū are able to exercise tino rangatiratanga.
Our findings above show that, in recognising the mandate of the Ngātiwai Trust Board to negotiate a settlement of the historical Treaty claims of Te Iwi o Ngātiwai without the support or consent of the hapū named in it, the Crown has breached the Treaty principle of partnership and the duty of active protection by failing to protect actively the tino rangatiratanga of the hapū included in the Deed of Mandate. We also find a breach of the principle of equal treatment in relation to the hapū who remain within the mandate and have no realistic prospect of being able to withdraw, vis a vis those hapū earlier allowed by the Crown to settle separately or that have been released from the mandate without explanation.
In our account of the mandating process, and in this chapter, we have pointed out the flaws and errors in the Crown’s actions. We have also considered the Ngātiwai Trust Board’s processes and structure, in order that we might understand why hapū were reluctant to consent to being included in the Deed of Mandate. We must now determine whether the flaws and errors we have identified not only breached the Treaty but also caused prejudice to the claimants and are therefore well-founded claims. We heard evidence and submissions from all claimants on the central theme of this urgent inquiry concerning the consent and support of those hapū named in the Deed of Mandate. But our findings of prejudice must now focus on the hapū claimants in this inquiry: Patuharakeke, the claimants from within Te Waiariki, Ngāti Kororā, and Ngāti Takapari, and also Te Whakapiko.
We find that the principal prejudice arises from the Crown’s failure to actively protect hapū rangatiratanga in its decision to confirm the mandate of the Ngātiwai Trust Board without the support or consent of the hapū named in the Deed of Mandate. This prejudice has manifested in the following ways:
- Hapū are excluded from decisive representation in the Deed of Mandate.
- Consent to the Deed of Mandate was obtained by a vote of individual members of Ngātiwai, which privileged individuals over hapū.
- Hapū will be represented in settlement negotiations by an entity that they have not endorsed.
- The historical Treaty claims of hapū will be negotiated, settled, and extinguished without their consent.
- The Crown has imposed its large natural groups policy on the groups and individuals who are included within the Deed of Mandate in a way that is designed to fit the Crown’s settlement programme, as opposed to being flexible and reflecting the tikanga of those involved.
- The Treaty relationship with the Crown has been damaged because whanau, hapū, and the Ngātiwai Trust Board have lost confidence in the Crown and its agencies.
- Whanaungatanga relationships among hapū, and between hapū and the trust board, have been damaged.
We have considered that those within Ngātiwai who support the Deed of Mandate of the Ngātiwai Trust Board could suffer prejudice through further delay to settlement negotiations, uncertainty, extra cost, and lost opportunity if we find these claims to be well-founded. We acknowledge that these risks exist, but we must weigh them against the risk that, if the protesting hapū are included in the negotiations through the Deed of Mandate as it is presently structured, then irreparable harm and prejudice to whanaungatanga, and to the relationship with the Crown, will result. The opportunity must be taken now to address the issues we have identified so that Ngātiwai and the hapū named in the Deed of Mandate can move together to settlement.
This has been a complex urgent inquiry and recommending the proper course from here on to resolve these well-founded claims is no easy task. In spite of its inherent problems we strongly support the Crown’s policy of settling with large natural groups, so long as the policy is applied flexibly, with an understanding of the tikanga of the affected groups, and with the support and consent of the hapū concerned. We are conscious that, should we recommend that hapū be able to withdraw from the mandate, it is highly likely that any hapū who do so will have to wait a very long time to settle because the Crown will move on with other priorities. The Crown told us it does not wish to negotiate a separate settlement with Patuharakeke.7 The Ngātiwai Trust Board told us the Crown had refused to entertain any further separate settlements with Ngātiwai hapū.8
One option is to recommend that the present mandate be withdrawn, that another entity such as a rūnanga or taumata be established, and that fresh negotiations commence with the Crown. We have carefully considered this option, but we are reluctant to recommend this because our remit is to find practical solutions: this option would cause prolonged further delay, perhaps lasting years. Even though those who voted in favour of the trust board’s mandate are only a small proportion of Ngātiwai, they nevertheless participated in the vote. Those who favoured the mandate made up a minority of submissions, but they were a significant minority. It would be unfair to those individuals to deprive them of a timely settlement.
Fundamentally, though, we do not believe Ngātiwai was ready to settle when the trust board commenced the mandating process. The Crown must now give Ngātiwai an opportunity to debate and work through the issues we have identified. At our hearings we discerned genuine goodwill and willingness among all parties – trust boards, hapū, and whānau – to seek a durable and mutually acceptable outcome that is tika, that repairs the damage to whanaungatanga, and that respects the rangatiratanga of all involved.
We recommend that the negotiations process be paused so that the following matters can be attended to.
We recommend that mediation or facilitated discussions take place to debate the unsatisfactory elements of the Deed of Mandate that we have set out. There should be an agreed number of hui involving all parties, including the trust board, conducted by an agreed mediator, mediators, or facilitators, to seek agreed formulae or acceptable solutions. Because we consider that the Crown is primarily responsible for the poor outcome of the first mandating process, it should fund this reconciliation process.
If agreement is reached on a pathway forward, then re-engagement with the Crown will be required to seek the Crown’s agreement to any changes proposed to the Deed of Mandate. If successful, the Deed of Mandate should be amended and re-submitted to the parties, including the 12 hapū listed in section 12, for endorsement or rejection.
In the event of rejection by the parties, we recommend withdrawal of the mandate and the setting up of a new entity such as a rūnanga or taumata, named and organised more inclusively and able to represent all hapū and groups in the inquiry district, whether or not they are Ngātiwai. We consider that, if it is required, the Crown should also fund this second process.
In either case, the matters to resolve through debate would be as follows:
- the claimant definition;
- an acceptance by the negotiating body that it represents Ngātiwai and other iwi or hapū of the takiwā;
- the representation of hapū including kaumātua on the negotiating entity;
- decision-making powers for hapū/kaumatua representatives;
- a non-exclusive name for the revised negotiating body;
- an agreed withdrawal mechanism for single hapū or groups of hapū;
- a disputes resolution mechanism; and
- a generally accepted model for the post settlement governance entity.
We suggest that the trust board could investigate the option of applying to the High Court for directions, or for a variation of the trust deed, to facilitate agreed changes to their structure where the thresholds for approval are unrealistically high.
We also suggest that any hapū or group of hapū that has participated in this process in good faith, and still wishes to withdraw at the end of it, should be assisted by the Crown to settle their Treaty claims as soon as possible, including assistance to collectivise into large natural groups and to obtain mandate(s) from their members.
The Crown needs to take steps to ensure that its policies concerning ‘shared interests’ in negotiations are robust enough to avoid the situation that has arisen in this inquiry, where hapū claims are shared among mandated entities without ensuring that hapū are able to exercise tino rangatiratanga within any mandate.
The Crown also needs to ensure that the application of its settlement policies meets its objective which is to achieve robust, durable, and fair settlements, and a restoration of its Treaty relationship with Māori.
3. Office of Treaty Settlement, Ka Tika ā Muri, ka Tika ā Mua/Healing the Past, Building a Future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown (Wellington: Office of Treaty Settlements, 2015), pp 24–25
Dated at this 26th day of October 2017
Judge Sarah Reeves, presiding officer
Dr Angela Ballara, member
Dr Rawinia Higgins, member
Dr Hauata Palmer, member