The Hauraki Settlement Overlapping Claims Inquiry Report
Wai 2840 - Hauraki Overlapping Claims Inquiry
The Hauraki Settlement Overlapping Claims Inquiry Report was originally released in pre-publication form in December 2019. It made findings on four claims. The main issue for the inquiry was whether the Crown breached the Treaty of Waitangi through the overlapping claims policies, processes and practices it adopted when negotiating collective and individual settlement deeds with Hauraki iwi. A related but distinct issue was whether one Hauraki iwi, Ngāti Porou ki Hauraki, were themselves prejudiced by the Hauraki negotiation process.
The hearings, held under urgency, took place in April 2019. The panel appointed to hear the claims consisted of Judge Miharo Armstrong (presiding officer), Professor Rawinia Higgins, Dr Ruakere Hond, and David Cochrane.
The Pare Hauraki Collective Redress Deed, which awards shared redress for the collective interests of the 12 iwi of Hauraki, was signed in August 2018. Along with some individual Hauraki deeds, it contains redress that falls within rohe of Ngāi Te Rangi and Ngāti Ranginui (both Tauranga Moana iwi), and Ngātiwai (whose rohe extends from the Bay of Islands to Matakana in Mahurangi and includes several offshore islands). All three iwi alleged the Crown failed to undertake a proper process to resolve overlapping interests in the areas at issue, and as a result, wrongly allocated redress to Hauraki iwi.
The three iwi shared key grievances. One was that the Crown failed to properly consult and share information with them about redress it was proposing to Hauraki iwi. Another was that the Crown did not adequately support the use of a tikanga-based process to resolve redress disputes and to test claimed interests. Yet another was that redress the claimants had agreed to later appeared in initialled or signed deeds in an expanded or changed form.
This last issue was key for Tauranga Moana iwi in particular, who objected to a provision in the collective deed allowing Hauraki iwi to participate in the Tauranga Moana Framework – an innovative co-governance mechanism for managing and protecting the Tauranga Moana harbour. Ngāi Te Rangi and Ngāti Ranginui argued that the provision granted Hauraki iwi rights in Tauranga Moana and over the framework that were not previously agreed, and that were incommensurate with their interests.
The central allegation by Ngāti Porou ki Hauraki was that the Crown failed to treat them equally to other Hauraki iwi, in both their collective and iwi-specific settlement negotiations. They claimed they were denied funding and access to the Crown, among other things, leaving them without an effective voice in the negotiations, and ultimately, without a fair redress offer from the Crown. They were particularly aggrieved at the Crown’s removal of some cultural redress from their individual settlement following an overlapping claims process they alleged was biased and unsound.
The Tribunal found the claims of Ngāti Porou ki Hauraki were not well founded, and as such, made no recommendations in respect of them.
The Tribunal found the claims of Ngāi Te Rangi, Ngāti Ranginui and Ngātiwai to be well founded. It found the Crown had breached its Treaty obligations to these iwi by failing to properly consult them, failing to communicate openly, failing to share information with and between overlapping groups, adding redress after reaching initial agreements, and damaging relationships. Further, it found the Crown had breached the Treaty by failing to properly promote, allow for, and facilitate tikanga-based processes at the appropriate times, especially at the start of negotiations. Finally, the Tribunal criticised the Crown’s public guide to settlement policies and processes, Ka tika a muri, ka tika a mua (the Red Book). Echoing previous Tribunal reports, it found the book to be vague, unhelpful, and unfit for purpose.
Accordingly, the Tribunal recommended that legislation giving effect to the Pare Hauraki Collective Settlement Deed, and the individual Hauraki iwi settlement deeds, not proceed until the contested redress had been through a proper overlapping claims process as set out in the report.
It also recommended that the Crown, when dealing with overlapping interests during settlement negotiations, fully commits to and facilitates consultation, information sharing, and tikanga-based resolution processes that reflect the Treaty principles identified in the report; and that it amend the Red Book accordingly. Chapter 5 of the report details substantive recommendations about the use of tikanga-based processes to resolve overlapping interests.
