The Ngātiwai Mandate Inquiry Report

WAI 2561
Waitangi Tribunal Report 2017
Legislation Direct

Publishing information

National Library of New Zealand Cataloguing-in-Publication Data
A catalogue record for this book is available from the National Library of New Zealand

ISBN 978-1-86956-327-1 (pbk)
ISBN 978-1-86956-328-8 (PDF)

www.waitangitribunal.govt.nz
Typeset by the Waitangi Tribunal
Published 2017 by Legislation Direct, Lower Hutt, New Zealand
Printed by Printlink, Lower Hutt, New Zealand
21 20 19 18 17 5 4 3 2 1
Set in Adobe Minion Pro and Cronos Pro Opticals

He mihi ki a te Rangi Karaitiana McGarvey

Rangi McGarvey

Tātai whetū ki te rangi, mau tonu, mau tonu
Tātai tangata ki te whenua, ngaro noa, ngaro noa
Te Tama a Tūhoe Pōtiki, te tama a Ngāti Whakaue
Kua ngaro rā koe ki te pū o mahara
Kua wahangū te reo whakapākehā o te Rōpū Whakamana i te Tiriti o Waitangi
Kua haumūmū te tohunga reo Māori o te Pāremata
Kua ngū te manu tatangi whakatiriripa o kupu whakarākei, o rerenga waiwaiā
Tēnei mātou ka auē, tēnei mātou ka auhi
E Rangi kua ngaro rā koe i te hinganga o te tini, i te moenga o te mano
He aha mā mātou?
He tangi, he mihi, he poroporoaki
Nā reira e te hoa, e moe, i te moenga roa, ki reira okioki ai

While the starry hosts above remain unchanged and unchanging
The earthly world changes inevitably with the losses of precious, loved ones
The son of Tūhoe Pōtiki, the son of Ngāti Whakaue
You have been lost to the void of memories
The Waitangi Tribunal’s translator has been silenced
Parliament’s expert interpreter speaks no more
The mellifluous bird of words adorned who epitomises excellence is silent
For you we cry in distress
Rangi you who has departed to the assembly of the hundreds and the congregation of the thousands
What are we left to do?
Grieve, acknowledge, farewell
Therefore dear friend, rest now, rest in peace

Report contents

Letter of transmittal

The Honourable Kelvin Davis
Minister for Crown/Māori Relations

The Honourable Andrew Little
Minister for Treaty of Waitangi Negotiations

and

The Honourable Nanaia Māhuta
Minister for Māori Development

Parliament Buildings
Wellington

26 October 2017

E ngā Minita, tēnā koutou

Enclosed is the report of the Ngātiwai Mandate Inquiry Tribunal, the outcome of an urgent inquiry conducted into the Crown’s recognition of the Ngātiwai Trust Board as the body authorised to negotiate a settlement of all remaining historical Ngātiwai Treaty claims.

The central theme for inquiry was whether the Crown recognised the mandate of the Ngātiwai Trust Board without ascertaining whether the hapū included in the mandate had given their support and consent to the trust board.

Although neither the Crown nor the Waitangi Tribunal has previously maintained that hapū consent is a requirement to achieve a mandate, where hapū play a central role in the social and political life of their communities the Crown has obligations to ensure hapū can determine how and by whom they will be represented in settlement negotiations. They must be allowed to make decisions according to their tikanga.

Although Ngātiwai is not a large iwi, the communities involved are diverse and complex. Nevertheless, the hapū claimants in our inquiry asserted their tino rangatiratanga and we accept that hapū are an essential source of identity and organisation within Ngātiwai.

We find that the Crown failed to fulfil its duty of active protection of hapū tino rangatiratanga and in so doing breached the Treaty principles of partnership and equal treatment.

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.

Although we heard from all claimants on the central theme of our inquiry, in determining prejudice we have focused on the hapū claimants: Patuharakeke, Te Waiariki, Ngāti Kororā, Ngāti Takapari, and also Te Whakapiko. The hapū will be prejudiced through their exclusion from representation in the Deed of Mandate, with the result that their historical Treaty claims will be negotiated, settled, and extinguished without their consent. The Treaty relationship with the Crown has been damaged and if the mandate continues in its present form will likely be damaged further. Division and dissent among hapū and between the hapū and the trust board has caused serious harm to whanaungatanga relationships.

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.

We do not, in the first instance recommend that the mandate be withdrawn. Rather, what is required is a pause in the negotiations process so that the following matters can be attended to:

We recommend a process of mediation or facilitated discussions to debate and seek agreed and acceptable solutions to the problems we have identified. If agreement is reached on a way forward, then the Crown’s support will be required for any changes proposed so that the Deed of Mandate can be amended and re-submitted to the parties, including the hapū listed in the deed, for approval.

Should the amended Deed of Mandate be rejected however, 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.

The objective of settlement policy is to achieve robust, durable, and fair settlements, and a restoration of the Crown’s Treaty relationship with Māori. We urge the Crown to support the process we have outlined so that this objective may be realised.

Nāku noa, nā

Judge Sarah Reeves
Presiding Officer

Acknowledgements

The Tribunal would like to thank the staff who assisted us in arranging the inquiry, hearing the claims, and preparing this report. They are Wiremu Rikihana (assistant registrar), Danny Merito, and Toni-Faith Temaru (claims coordinators), Kim Glazebrook and Hannah Boast (inquiry facilitators), and Sonja Mitchell, Lawrence Patchett, and Richard Thomson (report writers). Jane Latchem and Dominic Hurley provided editorial and typesetting services.

During the hearings, the Tribunal relied on the skills of Rangi McGarvey (interpreter and translator) and Alan Doyle (sound technician).

Abbreviations

ANZAC	Australian and New Zealand Army Corps
AOI	area of interest
app	appendix
CA	Court of Appeal
ch	chapter
cl	clause
comp	compiler
doc	document
DOM	Deed of Mandate
ed	edition, editor
fol	folio
IMA	independent mandated authority
LNG	large natural group
ltd	limited
memo	memorandum
n	note
no	number
NTB	Ngātiwai Trust Board
NZLR	New Zealand Law Reports
OTS	Office of Treaty Settlements
p, pp	page, pages
para	paragraph
PSGE	post-settlement governance entity
pt	part
PTB	Patuharakeke Te Iwi Trust Board
RMA	Resource Management Act 1991
ROI	record of inquiry
s, ss	section, sections (of an Act of Parliament)
sch	schedule
sec	section (of this report, a book, etc)
TCC	Treaty Claims Committee
vol	volume
Wai	Waitangi Tribunal claim
Unless otherwise stated, endnote references to claims, documents, memoranda, papers, submissions, and transcripts are to the Wai 2561 record of inquiry, a select copy of which is reproduced in the appendix. A full copy is available on request from the Waitangi Tribunal.

Waitangi Tribunal Te Rōpū Whakamana i te Tiriti o Waitangi