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On Friday 29 November 2024, the Tribunal released Hautupua: Te Aka Whai Ora (Maaori Health Authority) Priority Report, Part 1 in pre-publication format. The report was the result of a priority inquiry granted in May 2024 into claims concerning the Crown’s disestablishment of Te Aka Whai Ora – the Māori Health Authority. These claims were previously the subject of an urgent inquiry that was vacated when the Crown introduced the Pae Ora (Disestablishment of Māori Health Authority) Amendment Bill on 27 February. The panel for the inquiry was Judge Damian Stone (presiding), Professor Susy Frankel FRSNZ, Professor Tom Roa, Tania Simpson ONZM, and Linda Tuhiwai Smith CNZM.

The Tribunal decided to inquire into and report on the priority claims in two parts: the first part concerns the disestablishment and its impacts only. The second part will focus on the Crown’s alternative plans for Māori health. Part 1 of the Te Aka Whai Ora (Māori Health Authority) priority inquiry was conducted on the papers with no in-person hearing.

The Tribunal found that the Crown breached the principles of tino rangatiratanga, kāwanatanga, good government, partnership, active protection, and redress. The Crown did not act in good faith when disestablishing Te Aka Whai Ora as it did not consult with Māori. Without consulting its Tiriti/Treaty partner and without substantive advice from officials, the Crown decided that Te Aka Whai Ora was not required, despite knowledge of grave Māori health inequities.

Māori did not agree with the Crown’s decisions but were denied the right to self-determine what is best for them and hauora Māori. Instead, the Crown implemented its own agenda – one based on political ideology, rather than evidence – without even following its own process for the development and implementation of legislative reform. As the establishment of Te Aka Whai Ora was a form of redress for the Crown’s long-standing failure to reflect tino rangatiratanga in the health system, its unilateral decision to remove effectively took that redress away. The Tribunal found that these Tiriti/Treaty breaches caused significant prejudice to Māori.

The Tribunal recommended that the Crown commit to revisiting the option of a stand-alone Māori health authority, consult extensively with Māori in the development of any alternative plans, and always undertake proper regulatory impact analysis in matters that affect Māori health.

The Mana Ahuriri Mandate Report was released in pre-publication form on 20 December 2019. The report addresses a claim brought on behalf of the Ngāti Pārau hapū about the Crown’s acceptance of the ratification vote for the Ahuriri Hapū deed of settlement, and the proposed post-settlement governance entity – the Mana Ahuriri Trust.

In 2009, Mana Ahuriri Incorporated received a mandate from seven Ahuriri hapū to negotiate their historical claims. Negotiations were interrupted from September 2011 to February 2013 by a period of dysfunction among the komiti members. After the negotiations resumed in mid-2013, an agreement in principle was signed in December of that year, followed by the initialling of a deed of settlement in June 2015. A ratification process was then held for the deed of settlement and post-settlement governance entity, with a ratification vote taking place from 17 July 2015 to 21 August 2015.

The claimants argued that the ratification process for the deed of settlement was flawed. In particular, they claimed that the negotiating entity, Mana Ahuriri Incorporated, had lost its mandate and the Crown should not have proceeded with the settlement. In the claimants’ view, the Crown breached Treaty principles by failing to monitor the mandate sufficiently and by signing the deed of settlement despite a flawed ratification process and loss of mandate.

The hearings were held in Napier in February 2019, with closing submissions filed in May and June 2019. The Tribunal consisted of Chief Judge Wilson Isaac (presiding), Prue Kapua, Dr Grant Phillipson, and Dr Monty Soutar. In its report, the Tribunal agreed that the process was flawed and the Crown’s decision to proceed with the settlement in those circumstances was in breach of the Treaty principles of partnership and active protection. However, while the Tribunal found that the Crown was in breach of Treaty principles for accepting the ratification results for the Manu Ahuriri Trust, it did not find that the Crown’s acceptance of the deed of settlement was a breach.

The Tribunal recommended that, before introducing settlement legislation, the Crown obtain an undertaking from the Mana Ahuriri Trust to hold an election for all nine trustee positions, with an independently monitored voting process. It further recommended that the Crown should pay the costs of the election.

The Tribunal made further recommendations to prevent recurrence of similar prejudice in future settlement.

In October 2015, the Crown recognised the mandate of the Ngātiwai Trust Board to represent Te Iwi o Ngātiwai to negotiate and settle historical Ngātiwai Treaty of Waitangi claims. The Ngātiwai Mandate Inquiry Report is the result of an urgent inquiry into 10 claims concerning the Crown’s recognition of the mandate. The central theme of the claims was that the Crown recognised a mandate based on a one person-one vote process without ascertaining whether the hapū included in the mandate had given their support and consent to the trust board. The inquiry, in other words, concerned hapū tino rangatiratanga.

Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates, published in June 2017, was the outcome of an urgent inquiry into a claim concerning the Crown’s actions and policies to reduce the high and disproportionate rate of Māori criminal reoffending.

The claim was brought by Tom Hemopo, a retired senior probation officer, who alleged the Crown, through the Department of Corrections, had failed to make a long-term commitment to reducing the high rate of Māori reoffending relative to non-Māori.

The Tribunal heard the claim under urgency at its offices in Wellington from 25 to 29 July 2016. The Tribunal consisted of Judge Patrick Savage, Professor Derek Lardelli, Tania Simpson, and Bill Wilson QC.

Though Tū Mai te Rangi! focused specifically on reoffending, the broader imprisonment statistics for Māori in New Zealand formed the backdrop to the claim. At the time of the hearing, Māori constituted about 15 per cent of the national population but more than 50 per cent of the prison muster. The Tribunal noted the disparity between Māori and non-Māori reoffending rates was substantial and contributed to the disproportionate number of Māori in prison. Because of this, the Tribunal said that, for the Crown to be acting consistently with its obligations, it had to be giving urgent priority to addressing disproportionate Māori reoffending rates in clear and convincing ways.

The Tribunal concluded that the Crown, through the Department of Corrections, was not prioritising the reduction of Māori reoffending. It based this conclusion on the fact that since 2013 the Department of Corrections had had no Māori-specific plan or strategy to reduce Māori reoffending rates, no specific target to reduce Māori reoffending rates, and no specific budget to meet that end. The Tribunal therefore found that these Crown omissions breached the Treaty principles of active protection and equity.

The Tribunal further found that the Crown had not breached the principle of partnership, given that the Department of Corrections was making good-faith attempts to engage with iwi and hapū. However, the Tribunal said the Crown risked breaching its partnership obligations in future if it did not live up to its stated commitment to develop its partnerships with Māori.

Among the Tribunal’s recommendations was that the Department of Corrections revise the Māori Advisory Board’s terms of reference to enhance the board’s influence in high-level discussions with the Department of Corrections concerning the protection of Māori interests. It recommended that the department work with the enhanced board to design and implement a new Māori-specific strategic framework and that it set and commit to a Māori-specific target for the department to reduce Māori reoffending rates. Progress towards this target should, the Tribunal said, be regularly and publically reported on. The Tribunal also said the Crown must include a dedicated budget to appropriately resource the new strategic focus.

As the Tribunal was set to release its report, the Crown sought to submit additional evidence relating to a new Justice Sector target to reduce Māori reoffending, and a proposed Justice Sector strategy to meet this target. The Tribunal allowed the new evidence and reported on it in an addendum to the report. It concluded that this evidence did not alter the report’s findings and conclusions.

The Report on the Trans-Pacific Partnership Agreement, released on 5 May 2016, is the result on an urgent inquiry into a number of claims made by Māori that the Crown has breached the principles of the Treaty of Waitangi in joining the Trans-Pacific Partnership Agreement (TPPA).

The TPPA is a free trade agreement between New Zealand and 11 other Pacific Rim countries, including the United States and Japan. The Government negotiated the inclusion of a clause in the TPPA that allows it to take ‘measures it deems necessary to accord more favourable treatment of Māori… including in fulfilment of the Treaty of Waitangi’.

Claimants before the Tribunal said that this ‘Treaty exception clause’ would not protect their Treaty rights, and that the TPPA gave too much power to foreign investors.

The time available to the Tribunal to report was limited, and so it confined its inquiry to two issues:

• Whether the Treaty of Waitangi exception clause is the effective protection of Māori interests it is said to be; and
• What Māori engagement and input is now required over steps needed to ratify the TPPA, including by way of legislation or changes to Government policies which may affect Māori.

The Tribunal found that the exception clause should ‘provide a reasonable degree of protection to Māori interests’. The inclusion of a Treaty clause in the TPPA, and in earlier free trade agreements, was ‘to the credit of successive New Zealand governments’, the Tribunal said.

Nevertheless, the Tribunal expressed concern about the right of foreign investors to bring claims against the New Zealand Government. Under the TPPA, an investor may choose to bring a claim against the country in which they have invested, if it thinks the investment has been damaged by the State. This takes place under a system known as investor–state dispute settlement (ISDS).

An ISDS panel decides the case and can order compensation, although it cannot order the country to change its laws or practices.

The Tribunal was concerned that the right to bring ISDS claims, or the threat or apprehension of them, ‘may have a chilling effect on the Crown’s willingness or ability to meet its Treaty obligations or to adopt otherwise Treaty-consistent measures’.

In addressing its second issue, of what steps the Crown should now take, the Tribunal also looked at the adequacy of the Crown’s consultation with Māori before the TPPA text was completed. It was critical of the process, but made no findings on that topic.

The Tribunal suggested that question of a possible chilling effect, as well as an appropriate Treaty clause for future trade agreements, should be the subject of further dialogue between the Crown and Māori.

The Wai 2522 claim was lodged in June 2015 by Dr Papaarangi Reid, Moana Jackson, Angeline Greensill, Hone Harawira, Rikirangi Gage, and Moana Maniapoto. The claim, together with eight others, was heard by the Tribunal in March 2016. In addition, many Māori from throughout the country were recognised as interested parties in the inquiry.

The Tribunal comprised Judge Michael Doogan (presiding officer), David Cochrane, Tania Simpson, Tā Tāmati Reedy, and Sir Douglas Kidd.

The Waitangi Tribunal has released The Report on the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, concluding the inquiry into the Trans-Pacific Partnership Agreement (TPPA) which has proceeded over three stages.

The inquiry panel comprised Judge Michael Doogan (presiding officer), David Cochrane, Professor Susy Frankel, Tā Hirini Moko Mead, Kim Ngarimu, and Tania Simpson. Hearings were held at the Waitangi Tribunal’s hearing room in Wellington from 17 to 19 November 2020.

Originally, stage 3 of the inquiry included issues relating to engagement, secrecy, and data sovereignty. The issues of engagement and secrecy were resolved through mediation and, as a result, the majority of claims were withdrawn. The two remaining claims contained pleadings relevant to the remaining issue; data sovereignty. As such, the report asks one question: What (if any) aspects of the e-commerce chapter of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership are inconsistent with the Crown’s obligations under te Tiriti/the Treaty?

The Tribunal concluded that the risk to Māori interests arising from the electronic commerce (e-commerce) provisions are significant and that reliance on exceptions and exclusions in the agreement to mitigate that risk falls short of the Crown’s duty of active protection. As a result, the Tribunal found  that the Crown has failed to meet the Tiriti/Treaty standard of active protection and that this failure constitutes a breach of the Tiriti/Treaty principles of partnership and active protection.

Having found Tiriti/Treaty breach, the Tribunal came to the conclusion that it would not be appropriate to make recommendations in the circumstances of this case. This is largely because, over the five years since the inquiry began, a significant shift in the Crown’s position in response to claims has ocurred and a number of processes are underway, or in place, to address concerns. Additionally, the resolution of issues relating to engagement and secrecy through mediation gave the Tribunal significant reason to pause and think carefully about what (if any) recommendations it could make that would remove or mitigate prejudice in ways not already addressed as a result of commitments or processes already underway.

Having considered the relief sought by the claimants, the Tribunal declined to recommend that further e-commerce negotiations be suspended until an effective or proper regime had been designed. The Tribunal agreed with the Trade for All Advisory Board that there is a need for a comprehensive review of Aotearoa New Zealand’s policy and that, until such  review is carried out, the Government should avoid locking the country into any fixed negotiating positions. It is the Tribunal’s understanding that the Crown has accepted this recommendation and the review, which  engages Te Taumata and Ngā Toki Whakarururanga, is currently underway. The Tribunal also saw the recently announced Agreement in Principle between the United Kingdom and New Zealand, which will include a chapter on indigenous trade, as indicative of what is possible without freezing international negotiations altogether.

Overall, the Tribunal acknowledged there will be challenges ahead. However, it described these matters as best left for negotiation and dialogue between the Tiriti/Treaty partners in good faith and within the fora and processes now in place.

 

The Report on the Crown’s Review of the Plant Variety Rights Regime, released in May 2020, is the Tribunal’s stage 2 report for the Trans-Pacific Partnership Agreement inquiry (Wai 2522).

The original claims for this inquiry were lodged in June 2015 by Dr Papaarangi Reid, Moana Jackson, Angeline Greensill, Hone Harawira, Rikirangi Gage, and Moana Maniapoto. Negotiations for the Trans-Pacific Partnership Agreement (TPPA) were underway when the claims were lodged.

The Tribunal decided to hear the claims in stages, and the stage 1 report, the Report on the Trans-Pacific Partnership Agreement, was released on 5 May 2016.

For stage 2, the Tribunal considered whether the Crown’s process for engagement over the plant variety rights regime and its policy on whether or not New Zealand should accede to the Act of 1991 International Union for the Protection of New Varieties of Plants were consistent with its Tiriti/Treaty obligations to Maori. The panel comprised Judge Michael Doogan (presiding), David Cochrane, Tā Hirini Moko Mead, Kim Ngarimu, and Tania Simpson, and the hearings took place from 4 to 6 December 2019.

The claimants said that the Crown’s process for engagement over the plant variety rights regime, and its policy on how to address UPOV 1991, were not consistent with its Tiriti/Treaty obligations of partnership and protection. The Crown argued that its engagement process, consistent with its CPTPPA obligations, was Tiriti/Treaty compliant. The Crown further argued that the outcomes of the review met, and exceeded, the relief originally sought by the claimants in this inquiry and that it has implemented the relevant Tribunal guidance as to what is necessary to meet its Tiriti/Treaty obligations.

The Tribunal found that the claims of Tiriti/Treaty breach in relation to these issues were not made out, and it supported certain aspects of the Crown’s policy. The Tribunal welcomed Cabinet’s decision to not only implement the relevant findings and recommendations of the Tribunal’s 2011 Ko Aotearoa Tēnei report but go further and provide additional measures to recognise and protect the interests of kaitiaki in taonga species and in non-indigenous species of significance.

Motiti: Report on the Te Moutere o Motiti Inquiry addresses a claim that the Crown breached the principles of Te Tiriti by failing to recognise Ngā Hapū o te Moutere o Motiti as an independent tribal group who warrant their own Treaty settlement, instead wrongly assuming they were covered by the Ngāti Awa settlement.

The inquiry centred on a 2015–16 process, termed the ‘kinship review’, by which the Crown sought to assess the claimants’ assertion that they are a distinct tribal group, separate from Ngāti Awa, and their historical Treaty claims thus remain unsettled.

The central issue for inquiry was therefore whether the Crown, through its kinship review, properly informed itself of the identity of the tangata whenua of Motiti.

The inquiry panel comprised Judge Miharo Armstrong (presiding), Dr Ann Parsonson, Associate Professor Tom Roa, and Tania Simpson. The hearings began in May 2018 and were held over five separate weeks in Tauranga and Whakatāne, concluding in September 2019.

In order to address the central issue, the Tribunal had to consider the more fundamental question of who the tangata whenua of Motiti are. The Tribunal found that Te Patuwai and Te Whānau a Tauwhao are the tangata whenua of Motiti, and that Te Patuwai affiliate to Ngāti Awa.
In addition, the Tribunal found that any historical claims to Motiti based on descent from Te Hapū were settled as a Ngāti Awa historical claim through the deed of settlement and the Ngāti Awa Claims Settlement Act 2005.

Concerning the kinship review, the Tribunal found that, although its outcome was a correct assessment of the issues before the Crown, the process the Crown used to engage with the tangata of Motiti was flawed. Given the importance of tribal identity and affiliation in te ao Māori, the Crown should have approached the review in a more culturally appropriate way, the Tribunal considered. The Crown fell short of this requirement by failing to fully engage with all groups at the outset, failing to invite all groups to participate in the process’s initial design, and failing to support and engage in a tikanga-based process to resolve the questions under review, instead making an assessment of them itself.

Though the process was flawed, the Tribunal nevertheless found the Crown acted appropriately overall. It conducted the review in a largely open and transparent way, and took corrective action during the review to make it more inclusive, including meeting affected groups earlier than planned, and supporting all groups to discuss the issues with each other. In these and other respects, the Tribunal found the Crown acted in good faith, and ultimately met its duty of consultation to all groups.

Consequently, the Tribunal did not find that the kinship review process, considered as a whole, breached the principles of partnership and equal treatment.

In light of the process’s flaws, however, it offered suggestions about how the Crown should approach disputes about tribal identity in general. It suggested that:

• In the first instance, the Crown’s role is to support all groups concerned to explore these questions themselves and try to reach agreement according to tikanga.
• Tangata whenua should be involved in the design of this process, and in the design of any research process initiated to help resolve the dispute. The Crown should consider how it can assist in this work.
• The Crown should be mindful that its proper role in the research process, in the first instance at least, may be to collate and share relevant information with the parties concerned, rather than to undertake analysis of the information with a view to reaching conclusions itself.
• If discussion between the groups concerned breaks down or yields no agreement, the Crown may make its own assessment of the evidence and comment on whether it considers it conclusive or not, and why. However, where the question of identity is highly contested, the Crown should be very cautious about proceeding. Other independent facilitation or resolution processes may need to be considered.

In response to the Crown’s request for guidance on how to engage with the tangata whenua of Motiti, the Tribunal also offered suggestions about how it should engage with Te Patuwai in respect of the island (its suggestions did not concern the Crown’s engagement with Te Whānau a Tauwhao, as they were not a focus of this inquiry). It suggested that, on all issues concerning Motiti, the Crown should first engage with the Te Patuwai Tribal Committee to receive direction on which entities it should engage with – marae, hapū, or iwi – about that issue. The Te Patuwai Tribal Committee would connect the Crown with the relevant representatives of the marae, the hapū, or the iwi as appropriate.