Chapter 1: Introduction to the Urgent Inquiry
- 1.1 What is at issue?
- 1.2 Te iwi o Ngātiwai
- 1.3 Events leading to the urgent inquiry
- 1.4 Granting the inquiry
- 1.5 The parties to the inquiry
- 1.6 The issues for inquiry and the hearings
- 1.7 Our approach to the issues in this report
The Ngātiwai Mandate Inquiry (Wai 2561) is an urgent inquiry concerning the Crown’s recognition of a mandate to negotiate a settlement of the historical Treaty of Waitangi claims of Te Iwi o Ngātiwai. The mandate is held by the Ngātiwai Trust Board. The central theme of the claimants’ allegations was stated by the Tribunal’s Deputy Chairperson Judge Patrick Savage when he granted the urgent hearing. It is that the Crown recognised a mandate based on one person-one vote without ascertaining whether the hapū included in the mandate had given their support and consent to the trust board. The inquiry, in other words, concerns hapū tino rangatiratanga.
The Ngātiwai Trust Board decided in 2013 to seek the support of iwi members to pursue direct negotiations with the Crown. The board developed a mandate strategy, which was put to a vote of Ngātiwai members during August and September that year. A substantial majority voted in favour of the strategy, and the board submitted a Deed of Mandate to the Office of Treaty Settlements (OTS) in July 2014. OTS then sought and considered submissions on the proposed mandate. On 21 October 2015 the mandate was recognised by the Crown. In the Crown’s assessment, the trust board ‘has the support of Ngātiwai and is an appropriate body to represent Ngātiwai in settlement negotiations’.1
The claims we consider in this inquiry were made on behalf of hapū included in the Deed of Mandate, adjacent hapū, whānau groups, and individuals who have historical claims filed with the Waitangi Tribunal. Some agree they are Ngātiwai; others deny this. The claimants deny that hapū gave consent to be included in the Deed of Mandate. They also raised a range of concerns with the adequacy of representation and accountability in the mandate and the robustness of the Crown’s decision to recognise it.
The Crown’s policy is to negotiate settlements with what it calls ‘large natural groups of tribal interests’. It recognised Te Iwi o Ngātiwai as a large natural group in 2012. The Ngātiwai Deed of Mandate sets out a ‘claimant definition’, which names the founding tūpuna (ancestors) of this group, lists the hapū and marae included in the mandate, and describes the ‘area of interest’ within which customary rights were exercised. Two Ngātiwai hapū, Ngāti Manuhiri and Ngāti Rehua-Ngātiwai ki Aotea, are excluded from the mandate. This is because in 2012 the Crown had already recognised these hapū as ‘large natural groups’. It has negotiated separate settlements with them.2
There is no uncontested founding ancestor for Ngātiwai, unlike Rāhiri, for example, to whom all Ngāpuhi can relate. There is no eponymous ancestor called ‘Wai’: the reference is to the mana of the sea or the surrounding waters of the rohe (territory), as explained by revered Ngātiwai elder Mōrore Pīripi who said: ‘Ko nga mana katoa o Ngati Wai kei te wai, i nga taniwha me o ratou manawa.’ This was translated by the Ngātiwai elder Witi McMath as: ‘All the mana of Ngati Wai comes from the sea, from its guardian taniwha and their spiritual force.’3
In terms of ancestry, the Deed of Mandate defines Ngātiwai as ‘an amalgam of a number of older iwi groups’, but also identifies Ngātiwai as synonymous with Ngāti Manaia, one of the oldest descent groups in Te Taitokerau.4 The deed also mentions Ngāi Tāhuhu, Te Kawerau, and other early peoples, but acknowledges that these other ancient descent lines are shared with other iwi and hapū. The tūpuna Manaia I and Manaia II and their descendants are specifically mentioned. The deed says that, for the purposes of Treaty settlement negotiations, ‘Ngātiwai means all those members of Ngātiwai who can claim descent from these tūpuna of Ngātiwai’. The Ngātiwai Trust Board asserts that this Ngāti Manaia identity is a heritage unique to Ngātiwai, and that the ‘tribal name Ngātiwai applies collectively to all hapū who share descent from Manaia II and ngā kōpikopikotanga maha o Ngātiwai’.5
This last phrase means, literally, ‘the many meanderings of Ngātiwai’.6 Kristan MacDonald, who was deputy chair of the trust board at the time of our hearings, explained this was a phrase used by his kaumātua (elders), with two meanings: either ‘the overlapping whakapapa of Ngātiwai’ or the ‘many connections and journeys that we had, particularly up and down the coast, the East Coast and on the offshore islands’.7
Te Iwi o Ngātiwai, according to the Deed of Mandate, includes ‘the many related hapū and persons affiliated to the kāinga and marae’ that occupy the eastern coastline of Te Taitokerau between Pēwhairangi (the Bay of Islands) and Mahurangi, and extending offshore to encompass Aotea (Great Barrier), Hauturu (Little Barrier), and many other island groups.8
Under the heading ‘Hapū included in this Deed of Mandate’, 12 hapū are named. Of these, only four appear to be Ngātiwai tūturu, in that active links with other iwi are not evident.9 The other eight hapū are described as ‘shared’. This means that they are hapū with affiliations to other tribal groupings, and they are ‘included in the claimant definitions’ of other large natural groups recognised by the Crown for the purpose of settling historical Treaty claims. Only the claims of these 12 hapū are to be settled by the trust board. In the case of the ‘shared’ hapū, their claims are only to be settled ‘to the extent that they are descended from Ngātiwai tupuna’.10
The Deed of Mandate lists 35 (or 3611) hapū described as ‘Ngātiwai hapū, and Ngātiwai-related hapū, both historic and present-day’.12 ‘Ngātiwai-related hapū’ are defined as ‘descendants of Manaia I and II, who also hold primary identity with tūpuna of other Iwi groupings.’ There are 19 hapū labelled as ‘historic’.13
The southern hapū Ngāti Rehua-Ngātiwai ki Aotea and Ngāti Manuhiri who are excluded from the mandate are acknowledged in a separate section.14 Had they been included among the active hapū of section 12, they too would have been shared hapū because of their links with Te Kawerau, Tainui, and others.15 Their members were however eligible to vote for the Ngātiwai Deed of Mandate ‘through their wider whakapapa to any other Ngātiwai tūpuna/Hapū other than Rehua/Ngāti Rehua or Manuhiri/Ngāti Manuhiri’.16
A trust board representing Ngātiwai interests has existed in a variety of forms since 1945. In that year, according to the Deed of Mandate, ‘the identity of Ngātiwai as a tribe was defined for the first time in a modern context’ when a trust was formed to administer the Tāmati Mokaraka lands (which ‘relate’ to the 95 acres of Whangaroa-Ngaiotonga 4A3A) for the benefit of the ‘Ngātiwai tribe’. The 18 trustees were, at that time, representative of the hapū that were then regarded as making up the iwi. The Whangaruru-Ngātiwai Trust Board was incorporated in 1966 under the Charitable Trusts Act 1957.17
The current trust deed was adopted in 1984. It was at this time that the board adopted a system of marae affiliation, rather than the previous hapū-based structure. Initially, seven marae affiliated to the board, encompassing the core Ngātiwai rohe of Whangaruru and Whananāki. By 1987, trustees had been appointed for Ngunguru, Pātaua, and Takahīwai Marae. Subsequently, marae at Pākiri, Matapōuri, and Aotea (Great Barrier) also affiliated.18
The trust deed ‘aims to embrace the members of Ngātiwai wherever they live today but with a clear linear relationship between each member, their nominated marae for voting purposes and the NTB’.19 The board now comprises 14 trustees. Each is elected by the adult registered members who have chosen to affiliate, for this purpose, to one of 14 ‘Ngātiwai marae’. The mandate to settle the historical claims of Te Iwi o Ngātiwai is held by these trustees.20
In its current formulation, most recently amended in 2006, the Ngātiwai Trust Board is structured in response to the legislative requirements of the 2004 fisheries settlement. The chief duty of the trust board is to ‘receive, hold, manage and administer the Trust Fund’, for the benefit of Ngātiwai. A deed of trust sets out ‘the functions and purposes, and provides for the control, governance and operation’ of the Ngātiwai Trust. In part, the deed must meet the requirements of the Māori Fisheries Act 2004 and establishes the trust ‘to act, amongst other things, as the Mandated Iwi Organisation of Ngātiwai for the purposes of the Māori Fisheries Act 2004, and to act as the Iwi Aquaculture Organisation for the purposes of the Māori Commerical Aquaculture Claims Settlement Act 2004’.21
The trust board established a Treaty Claims Committee in 2013. This committee has delegated authority to ‘facilitate the settlement process by planning, implementing and following up on any matters that need attention to ensure that a settlement is secured in an efficient and effective manner’. The committee reports to the trust board at least once a month and will also provide advice and information to negotiators, once they are appointed.22
The Deed of Mandate does not specify how many trustees are appointed to the Treaty Claims Committee. Two employees of the board, the chief executive officer and the Treaty claims manager, are ex officio members, and the chair of the trust board may attend any committeee meeting. Two additional positions on the committee are proposed in the deed. Suitable applicants ‘must have demonstrated skills and experience and support from among Wai claimants, hapu or rangatahi’. These additional positions are advisory only.23
Three further advisory bodies or ‘supporting structures’ are proposed in the Deed of Mandate. Their purpose is to give the board access to additional skills and experience, as needed:
- A kaumātua group of up to four members, two men and two women, will provide the trust board with ‘advice, oversight, direction and guidance … particularly on matters of Ngātiwai tikanga’.
- Hapū and marae will be invited to discuss how they can best be included in the settlement process. The purpose of these discussions will be to ‘develop positive working relationships, work through issues and find agreeable solutions’.
- All Ngātiwai claimants and researchers will be able to participate in a research group. The trust board will also support parallel funded process for Wai claimants who want to continue to participate in the Waitangi Tribunal’s Te Paparahi o Te Raki inquiry. However, the trust board and Crown must agree on the design of the process, and all parties (including all Wai claimants) must agree to the process.24
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.25 The Ngātiwai Trust Board requested an urgent meeting to discuss settling the Treaty claims of all Ngātiwai hapū.26 In response, the Crown told the board it intended to settle Ngātiwai’s historical Treaty claims in two phases: first, it would continue to work with Ngāti Rehua and Ngāti Manuhiri; secondly, it planned a comprehensive settlement of Ngātiwai’s remaining Treaty claims ‘at the same time’ that it dealt with Ngāpuhi’s Treaty claims.27 The Crown completed a settlement with Ngāti Manuhiri in 2012 and initialled a Deed of Settlement with Ngāti Rehua-Ngātiwai ki Aotea in December 2016.28
Ngātiwai were recognised as a large natural group in August 2012. As part of the partial sale of four Crown-owned energy companies, the Crown offered the option of purchasing ‘on-account’ shares against a future settlement of historical Treaty claims. To be eligible Ngātiwai needed to be recognised as a large natural group, with a representative body that was appropriately accountable and had a recognised mandate to settle their Treaty claims.29 The Crown set a deadline of 30 April 2013 for the trust board to submit a mandate strategy application form.30
The Ngātiwai Trust Board began work in earnest in 2013 to gain a mandate. A Treaty claims manager was employed in January. Three preliminary information-sharing hui were held and a draft mandate strategy prepared. Mr MacDonald told us OTS requested ‘a list of hapū, marae and an area of interest (AOI) that constituted Te Iwi o Ngātiwai’.31 The draft mandate strategy went through six versions, with varied lists of hapū, before it was submitted to OTS and then endorsed by the Crown on 24 July 2013.32 The Crown has acknowledged this was an error in process, because submissions on the mandate strategy had not been received and addressed prior to endorsement.33
The strategy listed 13 ‘present day’ hapū of Ngātiwai. While acknowledging that some of these hapū ‘shared whakapapa’ with other iwi, it did not specify which ones. The strategy would ‘seek to clarify and address Ngātiwai related claims only’. Because Ngātiwai hapū and marae were also included in the claimant definitions of other large natural groups, the trust board would ‘seek agreement to the treatment of these hapū and marae with the Crown, following discussions with the relevant groups’.34
Submissions were received between 27 July and 17 August 2013.35 They showed significant opposition, notably from hapū. These hapū included three groups, Patuharakeke, Te Kapotai, and the cluster of Te Waiariki, Ngāti Kororā, and Ngāti Takapari, that have affiliations to other iwi.36
The Deed of Mandate describes the steps by which the mandate stategy was presented at hui and voted on, from July to October 2013, as the ‘official mandate process’.37 Individual members of Ngātiwai were asked to support this resolution:
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.38
The vote on the mandate was held between 17 August and mid-October 2013. The trust board presented the mandate at 13 hui (three were in Australia). There were 4,693 potential voters (those aged over 18). A valid address was required to actually vote, although it was not necessary to be registered with the trust board. The board made considerable efforts to locate and register eligible members. By the close of voting 395 members had been added to the register, of whom 249 were eligible to vote.39 A total of 2,735 voting packs were sent out and 772 votes were cast. This was a 28 per cent return (although just 16 per cent of potential voters). Of those who voted, 636 were in favour (82 per cent of those who cast a vote) and 131 against (17 per cent). Five votes were blank.40
The trust board made further changes to its mandate strategy, and on 27 June 2014 the board voted to submit its Deed of Mandate to the Crown for recognition. At this stage the claimant definition included 13 hapū ‘who have exercised or descend from those who have exercised customary rights within the Ngātiwai rohe’.41 Eight of these were described as ‘shared’ hapū. The Deed of Mandate stated that the trust board ‘will only negotiate the settlement of historical claims of these hapū to the extent that they are descended from Ngātiwai tupuna’.42
|Hapū in the Ngātiwai Trust Board Deed of Mandate|
Four of the 12 hapū currently included in the Deed of Mandate are only in the claimant definition of the Ngātiwai large natural group. They are:
The remaining eight hapū are described as ‘shared’ or ‘related’ hapū, because they are ‘included in the claimant definitions’ of other large natural groups. They are:
In the version of the Deed of Mandate submitted to OTS in July 2014, Te Kapotai were included and Ngāti Takapari were not classed as a ‘shared’ hapū. Te Kapotai were removed in May 2016.1
OTS publicly advertised the mandate on 12 July 2014, and asked for submissions, which were received up until 6 September 2014.43 In total, 269 submissions were received. OTS officials described the number as unprecedented for an iwi of Ngātiwai’s size. Most opposed the mandate and officials identified lack of hapū involvement as a common concern. In particular, the three hapū groups mentioned above remained opposed.44 The officials sought to meet as many submitters as they could. Hui were held with submitters on 18 October 2014, and OTS met representatives of the ‘Te Waiariki cluster’ and Patuharakeke in March and April 2015. Te Kapotai declined to meet.45 As a response to the issues raised in submissions, and at the suggestion of OTS, the trust board developed and implemented a plan to improve engagement and communication. In the officials’ view, these efforts addressed submitters’ concerns ‘as much as possible’. Nevertheless, they remained concerned that the three hapū groups would take their opposition to the Waitangi Tribunal.46
On 7 August 2015, the board approved further amendments to the Deed of Mandate. On the same day, OTS provided Ministers with a report recommending that the Crown recognise the mandate. Several versions of this briefing were produced, the last on 15 October 2015.47
The Crown formally recognised the Ngātiwai Trust Board’s mandate on 21 October 2015.
The previous month, on 11 September, the Waitangi Tribunal had released its Ngāpuhi Mandate Inquiry Report. That Tribunal found the Crown had breached Treaty principles by recognising the mandate of an entity which did not sufficiently protect the tino rangatiratanga of Ngāpuhi hapū. Three hapū groups that have made claims of Treaty breach in this urgent inquiry – Patuharakeke, Te Kapotai, and Te Waiariki, Ngāti Kororā, and Ngāti Takapari – were also participants in the Ngāpuhi mandate inquiry.48
The first application for an urgent hearing was received by the Tribunal on 20 November 2015. A further nine applications were received, the last on 3 March 2016.49
Judge Savage granted an urgent inquiry on 2 May 2016. He summarised the claimants’ proposition as being that
the confirmation and guarantee contained in article 2 of Te Tiriti was to the rangatira, the hapū, and to all the people, and that is the way that the matter should be dealt with. The Crown should not attempt to go over the head of hapū without hapū consent.50
Judge Savage determined the central issue for urgent inquiry to be the Crown’s recognition of a mandate based on one person one vote, without ascertaining which hapū, if any, had given their mandate to the trust board. This raised serious concerns that the Crown had failed in its Treaty obligations to hapū. Judge Savage granted urgency only to the part of the claims that related to the central theme.51
Judge Savage said that if prejudice had been caused to the hapū concerned, it would only increase if the settlement process continued. Therefore, he considered that the matter of hapū rangatiratanga needed to be addressed now. We note that when the urgent inquiry was granted the Crown paused negotiations with Ngātiwai and intends to re-engage once the Tribunal has reported.52
Judge Savage accepted submissions on the scope of the urgent inquiry and finalised his decision on 26 May 2016. He confirmed that the alleged Treaty breach was the Crown’s recognition of a mandate that claimed to represent hapū who had not given their ‘support or consent’. Judge Savage reiterated that the matter for inquiry related to the Treaty relationship between the Crown and hapū and not other groups. However, the inquiry could hear all claimants, and any hapū referred to in the Deed of Mandate, on that central matter of hapū rangatiratanga.53 Although he excluded the internal processes of the trust board as a central issue for the inquiry, Judge Savage said these processes might be relevant as possible reasons hapū ‘have not and will not’ give the trust board a mandate.54
On 27 May 2016, the day after Judge Savage confirmed the issue for inquiry, the Ngātiwai Trust Board voted to amend its Deed of Mandate by removing Te Kapotai, one of the ‘shared’ hapū covered by the mandate, and the Wai 1416 and 1546 claims. On this basis, Te Kapotai withdrew their application for urgency and sought leave to become an interested party in the inquiry.55
On 15 June 2016, the chairperson of the Waitangi Tribunal, Chief Judge Wilson Isaac, appointed Judge Sarah Reeves as presiding officer for the inquiry. Chief Judge Isaac appointed Dr Angela Ballara, Professor Rawinia Higgins, and Dr Hauata Palmer as members of the Tribunal panel.56
There are 10 claimant groups in this inquiry.
Two claims are made on behalf of hapū that are named in the Deed of Mandate:
- The Te Waiariki, Ngāti Kororā, and Ngāti Takapari claim (Wai 2549) is brought by Pereri Māhanga, Mītai Parāone-Kawiti, Violet Sade, Ngaire Brown, and Winiwini Kīngi on behalf of these three hapū. These hapū, the claimants say, are not Ngātiwai, and their historical claims ‘are within the Mana of Te Waiariki, which is mutually exclusive of Ngatiwai’.57 The claimants say the Te Waiariki, Ngāti Kororā, and Ngāti Taka Pari Hapū Iwi Trust was given the authority to advance the Treaty claims of these hapū at hui in 2012 and 2015.58
- The Patuharakeke claims (Wai 745 and 1308) are brought by Paki Pirihi, Ngāwaka Pirihi and others on behalf of the Patuharakeke Trust Board and others. This board was established in 1990 to govern and administer the affairs of that hapū. A committee of this trust has responsibility to address issues relating to claims being heard by the Waitangi Tribunal in its Te Paparahi o Te Raki Inquiry (Wai 1040).59 The claimants say that, although Patuharakeke is a hapū with close links to Ngātiwai, Patuharakeke has never given the Ngātiwai Trust Board a mandate to speak to the Crown on its behalf to settle historical Treaty claims.60
Two claims were received from groups which do not claim to speak on behalf of their hapū but nevertheless say their hapū, which are named in the mandate, are not part of Ngātiwai:
- The Te Whakapiko claim (Wai 156) is made by Marie Tautari and Rowan Tautari. They say they are a hapū of Ngāti Manaia and that the Crown’s reliance on the Ngātiwai Trust Board at the expense of hapū has resulted in a flawed claimant definition that excludes them from participation or representation in the settlement process.61
- The Te Waiariki and Ngāti Kororā claim (Wai 2550) is brought by Ruiha Collier and Haki Māhanga on behalf of Te Waiariki and Ngāti Kororā hapū. They assert not only that Te Waiariki and Ngāti Kororā are not Ngātiwai, but that they are hapū of Ngāpuhi. They say the Crown failed to assess and understand matters of whakapapa and tikanga properly or to recognise appropriately the mana of the hapū when it recognised the Deed of Mandate.62
Two claims were received from groups which acknowledge their Ngātiwai status but say they speak for their whānau rather than particular hapū:
- George Davies and Hūhana Lyndon claim on behalf of the whānau of Ngātiwai ki Whangaruru. They allege the Crown recognised a mandate that was the product of inadequate consultation, did not ensure adequate accountability to, and representation of, Ngātiwai, and did not properly recognise or observe tikanga. The claim was registered by the Tribunal as Wai 2544.63
- Mylie George, Carmen Hetaraka, Mike Leuluai, and Ngaio McGee claim on behalf of their whānau of Te Uri o Hikihiki, a hapū of Ngātiwai (Wai 2546). They say the Crown failed to engage meaningfully. As a result, they say, the Crown has recognised an entity that does not provide adequate accountability. While not speaking for a hapū, the claimants say that, by recognising a mandate that does not provide for the ability of hapū to exercise rangatiratanga, the Crown has subverted Ngātiwai tikanga.64
Two claimants laid particular weight on the trust board’s decision to seek direct negotiations with the Crown rather than participate in the Te Paparahi o Te Raki district inquiry:
- Elvis Reti of Ngātiwai is a named claimant for the Whangaruru lands claim (Wai 1384). His claim (Wai 2557) alleges the mandate was recognised on the basis of inadequate research and despite concerns about the lack of representation and accountability of the trust board to its beneficiaries. He says the internal relationships of his whānau have been damaged by the Crown’s involvement in the trust board’s mandate.65 He argues that the Tribunal process provides an opportunity for whānau and hapū to work through the ‘significant tension and opposition’ within Ngātiwai.66
- Deirdre Nehua is of Ngāti Hau and Ngātiwai. Her claim (Wai 2545) alleges the Te Taitokerau settlement issues claim (Wai 1837) was included in the Deed of Mandate, and part of the claim will be settled, without the claimants’ consent. They do not want to begin negotiating with the Crown until the Waitangi Tribunal has reported on the Te Paparahi o Te Raki inquiry.67
A further two claims were brought on behalf of groups that said Ngātiwai rights and authority do not extend south into the Whangārei and Mahurangi districts:
- Mira Norris and Marina Fletcher claim on behalf of the descendants of Tiakiriri, Te Parawhau, Ngā Hapū o Whangārei, and Te Uri o Hau (Wai 2337). They say they have the support of Te Parawhau.68 Patuharakeke, they say, are not a hapū of Ngātiwai but of Te Parawhau, and Te Parawhau are ‘a sub set’ of Ngāi Tāhuhu, Ngāpuhi, and Ngāti Whātua.69
- William Kapea and Michael Beazley claim on behalf of Te Uri o Maki-nui (Wai 2181). This is not a traditional name, but the name of the claim which relates to the interests of two hapū, Ngāti Maraeariki and Ngāti Rongo ki Mahurangi.70 This claim is not included within the Ngātiwai Trust Board mandate, although it is included within the Ngāti Manuhiri Deed of Settlement ‘in so far as it relates to Ngāti Manuhiri or a representative entity’. They say Ngātiwai does not have mana whenua rights in Mahurangi, in the south of its claimed area of interest.71
The starting point for the inquiry, in the Crown’s view, is that the mandated body is essentially sound, with a broad base of support for the mandate demonstrated by the individual members of Te Iwi o Ngātiwai who voted. The Crown submitted the inquiry needed to focus on the level of support for the mandate from Patuharakeke and the ‘Te Waiariki cluster’ (Te Waiariki, Ngāti Kororā, and Ngāti Takapari), as well as the status of Te Whakapiko within the mandate.72 The Crown argued that the key issue for the inquiry ‘is whether the hapū of Ngātiwai oppose (or do not support) the mandate’. It questioned the status of some claimant groups to bring claims on behalf of hapū. While the Crown acknowledges that there is opposition to the mandate, it says this comes from individuals and no evidence exists to support a conclusion that any Ngātiwai hapū oppose the mandate.73
The Ngātiwai Trust Board participated in the inquiry as an interested party in support of the Deed of Mandate. In its view, the trust board has a history and a trust deed that is ‘entirely consistent with representing the collective best interest of all Ngātiwai’. It says that to focus on hapū rangatiratanga would not accurately reflect the way Ngātiwai choose to organise themelves. The expression of rangatiratanga within Ngātiwai must be ‘understood, recognised and respected’ on Ngātiwai’s terms.74 The trust board structure, it said, is premised on kotahitanga and common interests. It has ‘never been a vehicle for debate and determination of the differing – and potentially competing – interests of hapū, marae or any other groups’.75 But, it said, this is not to say that hapū are not recognised within the Deed of Mandate. The trust board proposes to ‘enable and provide’ for hapū to retain a voice within the negotiations through a range of ‘supporting structures’ that ensure it is ‘fit for purpose’ for the negotiation process.76
Opposing the mandate, Te Rīwhi Whao Reti, Hau Tautari Hereora, Rōmana Tarau, and Edward Cook claim on behalf of Te Kapotai hapū (Wai 2548). As noted, Te Kapotai were removed from the mandate in May 2016. Although this resolved most of their concerns, they say the Crown still refuses to engage with Te Kapotai. They said this shows the Crown ‘still does not understand or accept its obligations to hapū when it comes to settlement negotiations’.77
Six other interested parties supported the claimants but did not take an active part in the inquiry.78
The Tribunal released a Statement of Issues on 20 July 2016. We stated that the key issues for the inquiry were:
- How did the Crown require the Ngātiwai Trust Board (NTB) to demonstrate support and consent for their deed of mandate? To what extent, if any, was that support and consent shown?
- To what extent, if at all, did the Crown seek to establish the nature and level of support for groups who opposed the mandate?
- To what extent, if any, did the Crown actively protect the position of hapū and the ability for hapū to exercise tino rangatiratanga?
- Did the hapū referred to in the NTB deed of mandate support and/or consent to that mandate?
- Does the NTB mandate provide for representation of hapū?
- Are the remedies available under the NTB deed of mandate workable?
- Are the claimants prejudicially affected, or likely to be prejudicially affected, by the Crown’s recognition of the NTB deed of mandate? If so, to what extent?
- Was the Crown’s decision to recognise the NTB mandate consistent with the principles of the Treaty of Waitangi/Te Tiriti o Waitangi?
- What structures are currently available to Ngātiwai for use as a mandated entity for Treaty settlement purposes?
- What is the relationship between the claimants’ hapū that are listed in the NTB deed of mandate and the marae listed in section 14 of the NTB deed of mandate?
- If the Tribunal concludes any of the claims are well-founded, what, if any, practical recommendations should the Tribunal make?79
Hearings took place at Toll Stadium in Whangārei from 4 to 6 October 2016. A further hearing was held at the Waitangi Tribunal offices in Wellington on 1 and 2 December 2016, following which closing submissions were received in writing.
The fundamental allegation shared by the claimants was that hapū had not consented to the mandate.80 The parties who said they represented hapū submitted that article 2 of the Treaty guaranteed to hapū the ability to make their own decisions on matters that affected them.81 Conferring a mandate to negotiate a comprehensive settlement of historical Treaty claims is one of the most important contemporary issues confronting Māori.82 The question of whether the hapū named in the Ngātiwai Deed of Mandate had consented to the mandate is therefore vital to any analysis of whether their rangatiratanga is being protected by the Crown’s decision to recognise the mandate.83
The focus of our inquiry, as determined by Judge Savage in the application for urgency, is whether the Crown acted in breach of Treaty principles by recognising the mandate of the Ngātiwai Trust Board without the support and consent of the hapū named in the deed.84 Before our hearings, we sought to clarify the central issue of the inquiry through a statement of the issues we considered relevant to measuring the Crown’s conduct.
After hearing from the parties and considering the evidence brought before us during the hearings, we have concluded that, in order to answer this central question of consent, we must focus particularly on two issues:
- First, is the the Ngātiwai Trust Board appropriately accountable to and representative of hapū?
- Secondly, how did the Crown’s actions influence the outcome of the mandating process?
In our next chapter, we set out the parties’ positions on these matters, bearing in mind the direction that all parties would be able to be heard on the central issue.
Then, in chapter 3, we identify the Treaty principles we consider relevant to these issues, and how these principles might apply to the particular circumstances of this inquiry. From this, we set out the standards by which we will assess the Crown’s conduct in terms of our jurisdiction to make findings of Treaty breach.
In the following two chapters, we assess the evidence according to our key issues, and finally, in chapter 6, we make our findings and recommendations.
2. Office of Treaty Settlements, 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 39, 42, 44–45; doc A62, pp 7–12
11. ‘Te Ure Whakapiko or Te Whakapiko’ are listed. The trust board has not taken a position on whether these are the same group: transcript 4.1.2, p 107; transcript 4.1.3, p 73; submission 3.3.19, pp 34–35.
12. Listed alphabetically, they are Ngare Raumati, Ngāti Horahia, Ngāti Kahuerueru, Ngāti Kiripakapaka, Ngāti Kororā, Ngāti Kura, Ngāti Manuhiri, Ngāti Paeahi, Ngāti Pare, Ngāti Rehua, Ngāti Rongo, Ngāti Tai, Ngāti Takapari, Ngāti Taura, Ngāti Tautahi, Ngāti Te Rāhingahinga, Ngāti Toki-ki-te-moana, Ngāti Toremātao (Ngāti Tao), Ngāti Tū, Ngāupaiaka, Te Akitai, Te Iri Haku, Te Irirata, Te Kāinga Kurī, Te Kapotai, Te Patuharakeke, Te Uri-o-Hikihiki, Te Uriokātia, Te Uri o Te Aoheiwa, Te Uri Papa, Te Uri Rata, Te Waiariki, Te Whakapiko or Te Ure Whakapiko, Te Whānau-a-Rangiwhakaahu, and Te Whānau Whero-mata-māmoe: doc A62, pp 10–11.
29. Ibid, p 192. Large natural group 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 (doc A73(a), exhibit 7, p 79); doc A43(b), exhibit J, pp 308–309.
78. Arthur Harawira and Te Raa Nehua on behalf of Ngāti Hau, Ngātiwai, and Te Uri o Hikihiki (Wai 1148): submission 3.1.5, doc A5(a); Waimarie Bruce, Chas Pēpene, Sandra Rīhari, and others on behalf of Ngāti Kahu o Torongare me Te Parawhau (Wai 619): submission 3.1.6; Jasmine Cotter-Williams on behalf of Ngāti Taimanawaiti (Wai 2063): submission 3.1.7; Hori Parata and the children of Hinetapu Maihi Māhanga (Wai 245): submission 3.1.8; Lydia Karaitiana on behalf of Ngāti Kahu (Wai 2368): submission 3.1.33; Gregory McDonald, ‘previous claimant rep of Wai 532 Mahurangi’, on behalf of the Timi Paraone whānau: submission 3.1.91. See also memoranda 2.5.4, 2.5.7, and 2.5.10.