Chapter 2: The Parties' Positions on the Inquiry Issues


2.1 Introduction

In this chapter, we summarise the positions of the parties on the issues we have identified. We first set out the parties’ positions on whether and how hapū are recognised and represented within the Deed of Mandate, and what accountability to hapū is provided. We then set out the arguments on the central issue of hapū consent to the mandate. Our analysis of these issues is presented in chapter 4. Then we look at what the parties told us about the Crown’s actions in respect of the mandate. Our analysis of these matters is presented in chapter 5.

We present the views of the interested party Te Kapotai alongside those of the claimants. The views of the Ngātiwai Trust Board, also an interested party, are summarised separately.

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2.2 Claimant Definition in the Deed of Mandate and the Recognition of Hapū

2.2.1 The claimants

The claimants alleged that the way they were described in the Deed of Mandate is flawed. They said the ‘claimant definition’ section of the deed was changed several times during the mandating process and continued to be altered even after the Crown recognised the Deed of Mandate. This, they said, made the definition difficult to rely on.1 The Te Waiariki, Ngāti Kororā, and Ngāti Takapari claimants, the Te Waiariki and Ngāti Kororā claimants, and the Patuharakeke claimants objected to their hapū being included in the deed.2 The Te Whakapiko claimants’ hapū was described as ‘historic’ in the Deed of Mandate, although their Wai claim was included. For these claimants, this meant the hapū claim had been appropriated by the Deed of Mandate without proper hapū representation.3

Claimants told us that the claimant definition was ‘inappropriately broad’ and ‘confused’ about how rights and interests were defined for the purposes of Treaty settlement.4 The deed placed too much reliance on intermarriage between certain ancestors. That is, although these marriages had created whanaungatanga (kinship or relationship) obligations, they had not transferred customary rights.5 The claimants alleged that Crown officials had become involved in designing the claimant definition, and that this was inappropriate.6

The trust board’s decision to seek direct negotiations with the Crown and not wait for the findings of a Tribunal inquiry process had, the claimants said, contributed to a ‘deficit in historical research’ and to uncertainty over which groups had customary ownership over certain lands and areas.7 Patuharakeke alleged the Crown expected them to relinquish care and responsibility for their hapū knowledge, something they were not prepared to do.8

An additional problem, identified by claimants generally, was that the ‘claimant definition’ in the deed exceeded the understood ‘tribal boundary’ of Ngātiwai in terms both of the area of interest and of the groups that were included.9 Claimants from within the Te Waiariki, Ngāti Kororā, and Ngāti Takapari group of hapū, the Te Uri o Makinui claimants, and the Te Parawhau claimants all alleged the area of interest described in the Deed of Mandate extended over areas where their hapū, rather than Ngātiwai, customarily held mana whenua or mana moana (authority over land, sea, and taonga).10

Te Kapotai said their inclusion in the claimant definition meant the Deed of Mandate had extended beyond the marae-based structure that the trust board said it represented. This was because no Te Kapotai marae were included in the deed.11

2.2.2 The Crown

As already noted, the Crown emphasised that most claimants did not purport to represent hapū. Because the central theme for the inquiry concerned hapū consent and support for the mandate, the Crown argued that the inquiry needed to focus primarily on the views of the claimants who did claim to represent hapū: the Patuharakeke claimants and the two claimant groups from within Te Waiariki, Ngāti Kororā, and Ngāti Takapari (Wai 2549 and Wai 2550). Accordingly, its response on the issue of the claimant definition largely focused on issues related to these hapū.12

The trust board sought to represent the interests of these hapū only to the extent that some of their members descended from the Ngātiwai tūpuna Manaia I and Manaia II. The board had provided the Office of Treaty Settlements (OTS) with a report clarifying the basis for the inclusion of these hapū in the mandate, and officials were satisfied with that.13

The Crown drew attention to the range of views among Te Waiariki, Ngāti Kororā, and Ngāti Takapari on their connections to Ngātiwai.14 It was, the Crown said, not for it to decide who was right or wrong. Rather, the Crown accepted that the trust board had a reasonable basis for its view that Te Waiariki, Ngāti Kororā, and Ngāti Takapari were hapū that Ngātiwai ‘shared’ with other iwi. Given this range of views, it would be wrong for the Crown to require the board to amend its mandate to remove the hapū.15

The Crown said it had relied on the trust board’s assessment of whether hapū listed in the Deed of Mandate were ‘active’ or ‘historic’and did not understand why it should have insisted that the trust board describe Te Whakapiko as an active hapū.16

2.2.3 The Ngātiwai Trust Board

The Ngātiwai Trust Board emphasised the influence of Crown policy in shaping the claimant definition. The ‘Red Book’ states that the ‘core component’ is descent from one or more named or recognised tūpuna. Hapū and marae were listed in the definition, and geographic areas described, to add clarity and detail rather than to expand the definition. Just because hapū were listed in the claimant definition did not mean they would be subject to it. Rather, individual members of the hapū might be, depending on whether they could trace their descent from the named tūpuna. Similarly, the claims of ‘shared’ hapū, which were included in the claimant definitions of other large natural groups, were to be settled only to the extent that they were Ngātiwai claims.17 The Crown’s policy of ‘comprehensive settlement’ meant the board had no ‘real choice’ in the claims that were included in the Deed of Mandate. Claims that fell within the definition of the claimant group had to be included, whether or not the named claimants individually agreed or consented. This position was confirmed to the board by OTS during the mandating process.18

The trust board said some changes to the claimant definition had occurred because the board wanted the people of Ngātiwai to explain how they should be described. The board acknowledged that it had not been easy to attain ‘a degree of precision’ in identifying named and recognised Ngātiwai tūpuna. It expected further refinements to the claimant definition would be required.19

The area of interest in the claimant definition did no more than indicate the potential area within which Ngātiwai customary rights had been exercised. The board intended to settle aspects of claims located within this area only insofar as they related to Ngātiwai interests.20

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2.3 Representation and Accountability

2.3.1 The claimants

The claimants argued that the Crown’s recognition of the Ngātiwai Trust Board for mandate purposes was inappropriate because it was not set up or structured in a way that could enable the Crown to meet its Treaty obligations to hapū properly.21 The trust board was set up to receive and distribute fisheries settlement allocations, but through the support of the Crown it was now viewed as the iwi authority for Ngātiwai. That it was an easy structure for the Crown to identify as an entity for Treaty settlement purposes, did not, in the claimants’ view, make it the right structure.22

Problems with the trust deed identified by claimants were the influence marae chairpersons were able to exert over elections to the board,23 and that trustees were responsible to all Ngātiwai, not to the communities that elected them.24 The claimants were concerned that this meant the mandate granted to trustees by marae communities could not extend to representing their claims in Treaty settlement negotiations.25

Claimants acknowledged that marae were important places to come together for discussion, but they argued there was ‘no link’ between the board’s marae-based system and proper hapū decision-making and representation based on their tikanga.26 The marae-based system of representation was problematic for the claimants whose marae reservation sat on Horahora land without a wharenui (meeting house); the suggestion that such a marae could represent their hapū was ‘absurd’.27

Hapū claimants contrasted the limited input they were able to provide through the mandated structure with the processes of collective decision-making they followed, under their own tikanga, through their own mandated hapū organisations.28 Both the Patuharakeke and the Te Waiariki, Ngāti Kororā, and Ngāti Takapari claimants had given a mandate for Treaty settlement work to their hapū organisations, the Patuharakeke Trust Board and the Te Waiariki, Ngāti Kororā, and Ngāti Taka Pari Hapū Iwi Trust.29 The Patuharakeke Trust Board had carried the hapū Treaty claims since 1997 without assistance from any other mandated entity and did not want to surrender that role to an entity that did not have their consent or support.30 It said the lack of appropriate hapū representation within the mandated entity amounted to a clear failure to uphold their hapū rangatiratanga.31

Claimants acknowledged that the Ngātiwai Trust Board had made amendments to the Deed of Mandate but said these changes had not resolved problems of representation and accountability. The proposals were ‘tokenistic’, they said, because they were solely advisory. The proposals did not amount to proper hapū representation.32 The interested party Te Kapotai submitted that none of the submissions on the Deed of Mandate had suggested adding advisory positions as the way to resolve concerns about hapū representation. It was therefore no surprise, Te Kapotai argued, that the changes had not resolved concerns about hapū representation.33

Further improvements were required, the claimants stated. One suggestion was that a tribal taumata was needed, which would be representative of Ngātiwai kaumātua and kuia and would have a power of veto over the board’s Treaty settlement decisions.34 The Patuharakeke claimants pointed to the Whangārei Terenga Paraoa Assembly as a possible alternative hapū-based structure that might better reflect and uphold the rangatiratanga of hapū.35

2.3.2 The Crown

The Crown submitted that neither the Crown nor the Tribunal, has previously maintained that hapū consent is required in order to achieve a mandate.36 Ngātiwai was not a confederation of distinct and autonomous hapū units in the way that Ngāpuhi might be, and it was a far smaller iwi. For these reasons, the Crown said, it was not practical for the Ngātiwai Trust Board to create a separate entity for mandating purposes.37

The Crown said that, in any case, hapū had been effectively represented on the trust board for several decades through marae-based representatives. Alternatives had been considered at one time, with hapū, takiwā (districts), and marae-based systems put to a general meeting of Ngātiwai. Marae representation was chosen, and therefore the Crown had reason to consider it was appropriate.38 The Crown acknowledged that there were complex and interwoven relationships between Ngātiwai hapū and marae, with some hapū closely connected to particular marae and others less so.39 However, in the Crown’s view the marae-based system still adequately represented hapū, while proposed advisory bodies and new positions on the Treaty Claims Committee would further enhance hapū representation.40

2.3.3 The Ngātiwai Trust Board

The Ngātiwai Trust Board highlighted the statement in the Ngāpuhi Mandate Inquiry Report that the Crown has a duty to respect and protect actively the rangatiratanga of Māori communities according to the particular circumstances of the community involved. The structure set out in the Deed of Mandate was appropriate to Ngātiwai, the board said, and matched the particular circumstances of the community.41

The trust board told us Ngātiwai hapū and marae communities were not separate and discrete. Rather, it said that, because the hapū and the marae contained the same people, the board’s marae-based structure was an appropriate form of representation.42 Marae-based systems of mandate representation were not unusual, the board said; the Ngāpuhi mandate was the only hapū-based mandate in Te Taitokerau.43 There had been no consistent practice of Ngātiwai hapū acting autonomously for at least 70 years.44 Over recent decades the board had represented Ngātiwai and had become part of the rangatiratanga of Ngātiwai.45

The board was aware that the trust deed had flaws and it had tried to gain support for amendments to the deed. Responsibility for reviewing the trust deed and recommending changes now lay with a group that was independent of the board. The trust board said the review process was continuing.46 The board’s trustees were obliged to make decisions solely on the basis of what was best for all of Ngātiwai, based on the principle of kotahitanga and the common interests of all.47 For the purpose of settlement negotiations, however, the board said it had created advisory roles to allow for more input from hapū.48

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2.4 Did Hapū Consent to the Mandate?

2.4.1 The claimants

The claimants alleged that hapū have not given their consent to the Deed of Mandate. Moreover, they say hapū consent was never sought. Instead, they said, support for the mandate was secured through a vote of adult registered members of Ngātiwai. This was not, in the claimants’ submission, the way to obtain or gauge hapū consent.49 In order to be certain the Ngātiwai Trust Board had obtained the consent of hapū, the Crown should have required the board to put the question to hapū. That was the tikanga that should have applied to decision-making on matters that affected the hapū.50 The claimants said decisions affecting the whole hapū were made collectively through hui-ā-hapū, and mandates for any particular work on behalf of hapū were granted by the hapū as a whole.51

Claimants said the Patuharakeke Trust Board and the Te Waiariki, Ngāti Kororā, and Ngāti Taka Pari Hapū Iwi Trust had been given, through such hui, the authority to advance Treaty settlement work on behalf of those hapū.52 They said decisions taken by the bodies representing Patuharakeke and Te Waiariki, Ngāti Kororā, and Ngāti Takapari to refuse consent to the mandate were clearly signalled to the Crown and the Ngātiwai Trust Board, yet the Crown proceeded to recognise the mandate anyway.53

Some claimants placed hapū consent within a wider argument that the consent of Ngātiwai – claimants, whānau, hapū, and the iwi as a whole – had not been obtained. They said flaws in the vote on the mandate were the main reason.54 For example, they said the vote did not reveal which hapū or marae voters belonged to, and so the Crown could not know which hapū or marae had given their consent.55 This, they said, meant support for the mandate might have come from within all the hapū of Ngātiwai or might have been concentrated within just one or two hapū. Similarly, they said that while it was possible that all marae communities supported the mandate, support might have been concentrated among just a few marae.56 It was impossible, in the claimants’ view, for the Crown to argue for hapū or marae consent from the results of the mandate vote.57

Claimants said the low rate of participation (28.2 per cent) in the vote was characteristic of mandate voting and a fundamental problem they said the Crown must do more to address. The low participation rate, it was submitted, might indicate that opponents preferred to use the submissions process to state ‘reasoned opposition’.58 Additional problems with the vote were that not all who could have been eligible to vote had received voting packs or been able to participate.59

The claimants alleged that the vote proceeded with a claimant definition that was incorrect, unclear, and still undergoing change.60 This problem was compounded, in the claimants’ view, by the error in Crown process in July 2013, when the Crown endorsed the mandate strategy before seeking submissions. The claimants noted that voting began before submissions on the strategy had been fully considered, further undermining the status of the vote as a means of showing consent to the mandate.61

The whānau of Ngātiwai ki Whangaruru claimants pointed to the minimum standards of active protection of tino rangatiratanga that were set out by the Ngāpuhi Mandate Tribunal.62 They submitted that the vote fell short of those standards and therefore the Crown had undermined the rangatiratanga of Ngātiwai hapū and claimants.63

Te Kapotai said they had made their opposition to the mandate clear to the Crown, but were included in the mandate against their wishes.64 Neither the Deed of Mandate nor the mandate process contained a mechanism to seek consent from hapū. The vote did not show if members of Te Kapotai had voted in favour of the mandate. It was not acceptable, Te Kapotai submitted, for the Crown to recognise a mandate that would result in the full and final settlement of a group’s historic grievances when it was possible that only a small number of that group had voted in support.65 They said the Crown knew there was opposition from Te Kapotai, and other hapū, and its failure to require the trust board to demonstrate support for the mandate from those hapū showed the Crown’s disregard for hapū rangatiratanga.66

2.4.2 The Crown

The Crown argued that it was reasonable for it to rely on the vote, which demonstrated a ‘broad base of support’ for the mandate.67 The participation rate of 28 per cent and the 82 per cent level of support were comparable to other mandate votes.68 It noted that just 131, or 17 per cent, of the 772 votes cast were opposed to the mandate.69 While acknowledging that 144 of 269 submissions (including a petition with 119 signatures) opposed the mandate, the Crown said submissions should not be considered in the same way as the result of a vote. It said people who were already satisfied with the mandate arrangements had little incentive to make a submission. The Crown told us that submissions could be made by any member of the public, meaning anyone could make a submission on a mandate that might not necessarily affect them. By contrast, it said the vote was open only to adult members of Ngātiwai. The Crown submitted that the submissions process did not reveal a ‘discernable change in the overall attitude’ of Ngātiwai to the mandate. It said that analysis of the petition showed that 104 individuals who listed an affiliation to Ngātiwai hapū opposed the mandate, which indicated a similar level of opposition to the 131 votes against the mandate. But, the Crown said, the mandate vote followed a clear and widely advertised process, including hui, and it was not valid to compare the two.70

The Crown accepted there was evidence of opposition to the mandate, but it said this came from individuals. This individual opposition, as expressed through the mandate vote, submissions, and petitions, did not, it said, equate to hapū opposition. It therefore, in the Crown’s submission, fell outside the scope of the inquiry.71 Nor, the Crown argued, had evidence of hapū opposition to the mandate been demonstrated during the inquiry.72 It said only the Patuharakeke claimants and the claimants from the Te Waiariki, Ngāti Kororā, and Ngāti Takapari hapū purported to represent hapū.73 None of these claimants had provided evidence that their hapū opposed the mandate. the Crown said each claimed that their hapū trust had a mandate to represent their hapū on matters of Treaty settlement, but neither had held properly documented hui or voting processes comparable to the Ngātiwai Trust Board’s mandate process. Nor had they run equivalent processes to find out whether hapū members opposed the trust board’s mandate as they claimed.74

2.4.3 The Ngātiwai Trust Board

The Ngātiwai Trust Board submitted that the decision of those who voted in favour of the mandate should be respected.75 The vote was ‘the sole concrete indication’ of the level of support for the mandate, and had to be weighed against the concerns that claimants had raised.76

The trust board said it had undertaken an extensive process of engagement, including hui with hapū representatives, marae trustees, named claimants, and kaumātua.77 Throughout that ‘drawn-out process’, only two of the many hundreds who had taken part had questioned whether it was appropriate to hold a vote of individuals to approve or reject the mandate strategy. Before the urgent inquiry, the board said, no member of Ngātiwai had proposed the mandate should be approved through a series of decisions at hapū level, rather than by individual vote.78

The board rejected the proposition that the Patuharakeke or Te Waiariki, Ngāti Kororā, and Ngāti Takapari claimants had any mandate to speak on behalf of their hapū. It said there was no evidence to suggest they had sought or obtained such a mandate, whether by a hui-ā-hapū or some other means.79

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2.5 Withdrawal of Consent

2.5.1 The claimants

The claimants’ key submission was that the mechanism to withdraw support from the Ngātiwai Trust Board’s Deed of Mandate is so costly, onerous, and impractical as to be unworkable.80 They said they were trapped within a mandate they had not agreed to and that did not allow them sufficient representation. By recognising a mandate that put the claimants in this position, they said the Crown had failed in its duty of protecting actively their tino rangatiratanga.81

The claimants said the withdrawal process was practically equivalent to that followed by the trust board in obtaining a mandate. But they submitted that, whereas significant funding was available to the trust board, no funding was available to claimants who wished to withdraw support.82 Te Kapotai told us the process conferred ‘a significant and unfair amount of power’ on the trust board, and to expect those who opposed the mandate to follow such a process compromised their rangatiratanga, meaning their right to choose not to be involved.83 Even if the withdrawal process was followed to the end, the claimants said, withdrawal was not guaranteed because the Deed of Mandate stated that the trust board had then to discuss the next steps with OTS. The claimants were unwilling to trust the Crown with that decision.84 In any case, they said, the mechanism was not designed to allow groups such as hapū to withdraw, but so that the claimant community as a whole could withdraw their mandate from the trust board.85

The fact that Te Kapotai had been allowed out of the mandate, without using the withdrawal mechanism and for reasons that claimants found ‘difficult to decipher’, added to claimants’ sense of unfairness. They argued that this amounted to unequal treatment of the hapū by the Crown.86 Te Kapotai acknowledged that release from the Deed of Mandate had been a key objective. Having been included against their wishes, they had spent ‘over three years’ trying to be removed. But they still did not know with any certainty why they had been released. Problems with the claimant definition should have been resolved before the mandate was recognised, they said.87

2.5.2 The Crown

The Crown did not agree that the withdrawal mechanism was unworkable. While the requirement to hold nine hui nationwide and within the rohe might sound onerous, the Crown said there was no evidence to suggest that such a task needed to be expensive or difficult to organise. It was understandable that such hui were required, given that the trust board had held extensive hui in the process of obtaining its mandate.88

On the question of why Te Kapotai had been released from the mandate without using the withdrawal mechanism, the Crown stressed that this had been a decision for the trust board to make.89

2.5.3 The Ngātiwai Trust Board

The trust board argued that, because all of Ngātiwai were involved in the decision to confer its mandate, Ngātiwai collectively should have the opportunity to withdraw the mandate.90 In any case, the board said it was constrained by the Crown’s policies of comprehensive settlement with large natural groups, which meant it was not possible for individual hapū, named claimants, or other groups to withdraw. The Crown had stated it did not intend to settle separately with any further Northland hapū. Although the board did not see its role as defending that policy, the separate settlements process pursued for its two southern hapū had damaged Ngātiwai.91 The board was, therefore, ‘unapologetic in continuing to advocate for a single, comprehensive settlement for all remaining Ngātiwai claims’.92 The board said it removed Te Kapotai from the mandate because whānau with Te Kapotai ties asked it to.93

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2.6 Did the Crown Effectively Protect the Interests of the Groups Involved in Mandating?

2.6.1 The claimants

Claimants alleged that the Crown acted inconsistently and in error as it worked towards its decision to recognise the mandate.94 They said the Crown’s approach was driven by its desire to satisfy its own targets and priorities, including the achievement of a Treaty settlement with Ngātiwai ‘at any cost’, rather than the need to ensure that the mandate was robust and that the interests of hapū and claimants were protected.95

The claimants said that in order to achieve its goal of quick settlement the Crown held early discussions with the trust board, which had a history of working with the Crown as a fisheries settlement entity.96 This, the claimants said, was a ‘first cab off the rank’ approach, rather than searching for or encouraging the formation of an appropriate group for the purpose.97

Confidence in the Crown’s approach was further undermined by the Crown’s error in endorsing the mandate strategy before seeking submissions.98 Claimants alleged that this showed a lack of care and even a level of predetermination in the Crown’s approach.99 They said the Crown did not properly consider submitters’ concerns before advising the trust board to move to the next stage, meaning mandate hui and voting went ahead before claimants’ views were adequately addressed.100

Te Kapotai alleged the Crown’s failure to analyse the mandate vote to assess levels of support from hapū and marae undermined the robustness of the mandate. They said neither the Crown nor the trust board knew how many members of Te Kapotai had voted in favour.101

The claimants said the Crown’s actions and decisions in respect of the claimant definition also undermined the mandate. They said the Crown had ‘injected’ itself into the process by suggesting changes to hapū ancestors in the claimant definition.102 They said the Crown had become an ‘active party’ in the formulation of the claimant definition because it wanted a broader mandate to be achieved.103 They said the Crown had worked with the trust board in these discussions instead of engaging properly with hapū or claimants to establish the correct whakapapa.104 The Crown’s reliance on the trust board, claimants said, had led to the alleged errors and inaccuracies, and over-reach in terms of the area of interest.105 The claimants said self-definition was a fundamental element of tino rangatiratanga, and so the inability of hapū and other groups to determine their identity within the mandating process amounted to a failure by the Crown to protect their tino rangatiratanga.106

The claimants alleged a key Crown failing lay in its response to submissions on the Deed of Mandate. They noted officials had assessed the number of submissions as ‘unprecedented for an iwi of Ngatiwai’s size’ and demonstrating a level of opposition that was of ‘high concern’ to the Crown.107 The claimants said that instead of working with the claimant community to develop solutions to these concerns, the Crown chose to work with the trust board.108 The result was that claimants’ concerns were left unresolved.109 Claimants submitted that this undermined their rangatiratanga. The Crown had long been aware of concerns about hapū representation and other issues, but had not resolved these concerns as a good Treaty partner would have.110

The claimants said the Crown placed heavy reliance on reviews commissioned by the trust board rather than undertaking its own assessments. Claimants alleged that the process of commissioning these reviews was not sufficiently robust, and the consultant was not sufficiently independent from the trust board.111 Claimants also alleged that, whereas Crown policy was for Te Puni Kōkiri and OTS to separately review mandates, evidence and cross-examination had shown that these Crown agencies were not sufficiently independent of each other.112

Claimants stated the Crown was aware of a risk of legal challenge to the mandate if Ministers decided to recognise it. In their advice to Ministers, Crown officials identified ‘a high risk of litigation’ from groups opposing the mandate.113 Instead of trying to resolve these concerns, officials recommended that Ministers recognise the mandate.114 Claimants also alleged that, in deciding to recognise the mandate, the Crown failed to take account of the recommendations made by the Ngāpuhi Mandate Tribunal, which had been released a month earlier.115

In pursuing its settlement objectives, claimants alleged the Crown had failed to protect whanaungatanga obligations and relationships among the groups affected by the Deed of Mandate. There are several elements to this allegation. The Crown was said to have applied its large natural group policy inappropriately. The result was that, for some groups, acknowledged whanaungatanga links were used to bring them under a Ngātiwai mandate without their consent. The Te Uri o Makinui claimants alleged that intermarriage between tūpuna was used to allow Ngātiwai to claim mana whenua in areas to which it was not entitled. They alleged the Crown used this reasoning to push the related parties into one settlement.116 The forced application of the Crown’s large natural groups policy had caused ‘massive division’.117 Strain to ‘intra-iwi relations’ and internal conflict to whānau, hapū, and marae were identified by other claimants.118

The claimants said the Crown’s insistence on pushing ahead with the mandate despite opposition caused further damage to whanaungatanga, affecting both internal and external relationships. The Crown’s policies had harmed Patuharakeke’s relationships with some Ngātiwai whanaunga (kin) to a point that was nearly irreversible. But the impact was felt internally too. Conflict had erupted among whanaunga and whānau.119

2.6.2 The Crown

The Crown stressed the limited role it had in mandating processes. The Crown did not confer mandates. Rather, it was asked to recognise them.120 The Crown noted that the urgent inquiry did not concern the process leading to the recognition of the mandate. However, to the extent that the Crown’s role in the mandating process was relevant to the central theme, it had assessed the level of support for opponents to the mandate at appropriate points.121

While the Crown accepted it had erred in endorsing the mandate strategy before seeking submissions, it noted that none of the submissions had criticised the Ngātiwai Trust Board’s proposal to hold a Ngātiwai-wide vote of adult individuals. Nor was there any call to halt the vote so that hapū could confer a mandate.122

The Crown argued that the submissions process did not reveal a higher level of opposition than had already been indicated by the mandate vote.123 Nevertheless, it drew attention to the advisory roles the trust board had proposed in response to concerns raised through the submissions and mandating processes.124

Crown officials had specifically addressed the issue of hapū representation when they advised Ministers to recognise the mandate.125 However, the Crown maintained its view that nothing had required the Crown to interfere in the trust board’s mandate by insisting that the board restructure itself or create an entirely new structure to provide for hapū representation.126

Noting the findings and recommendations of the Ngapuhi Mandate Tribunal, the Crown said that Tribunal had not said hapū were fundamentally prominent in all Māori communities or that all mandates should be hapū-based. The Crown said careful consideration needed to be given to the Ngātiwai context.127

2.6.3 The Ngātiwai Trust Board

The trust board told us of the negative effects that the separate settlements for Ngāti Manuhiri and Ngāti Rehua have had on Ngātiwai. The board had decided only reluctantly to support those groups to pursue settlements separate from the rest of Ngātiwai. One result of the mamae (pain) and division this had caused was the board’s decision to pursue direct negotiations with the Crown rather than participate in a Waitangi Tribunal inquiry first. The trust board had believed this would enable Ngātiwai to ‘catch up’ with its two southern hapū and rebuild the unity that separate settlements had threatened.128

The trust board stressed that the formation of its claimant definition had been influenced by Crown policy. In particular, it was influenced by the Crown’s requirement that all claims deriving from a named or recognised Ngātiwai tupuna must be included in the Deed of Mandate, even if they were only partially Ngātiwai claims.129

The trust board defended the Crown’s response to the concerns of groups who opposed the mandate. It said the Crown had monitored closely the board’s mandating process and conducted its own hui and communications with claimants and others affected by the mandate. The board said the Crown had fulfilled its obligations in a way that reflected the particular circumstances of the Ngātiwai community, which did not have a history and tradition of hapū operating autonomously.130

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1. Submission 3.3.22, p 15

2. Submission 3.3.21, p 14; submission 3.3.18, p 5; submission 3.3.24, p 3

3. Submission 3.3.13, p 5

4. Submission 3.3.12, p 3

5. Submission 3.3.17, pp 17, 26; submission 3.3.12, p 3

6. Submission 3.3.22, p 14; submission 3.3.18, pp 6, 21, 36

7. Submission 3.3.25, pp 3–4, 51

8. Submission 3.3.21, p 25

9. Submission 3.3.14, p 9

10. Submission 3.3.17, pp 5–10; submission 3.3.18, p 31; submission 3.3.24, p 68; submission 3.3.12, p 2

11. Submission 3.3.20, p 13

12. Submission 3.3.23, pp 12, 13–14, 28

13. Ibid, p 52

14. Ibid, pp 46–47

15. Ibid, pp 47–48

16. Ibid, pp 52–53

17. Submission 3.3.19, pp 16–17

18. Ibid, pp 19–20

19. Ibid, pp 13, 18

20. Ibid, p 19

21. Submission 3.3.14, p 8; submission 3.3.21, pp 31–32

22. Submission 3.3.21, pp 16–17; submission 3.3.18, p 35; submission 3.3.13, p 7; doc A45, p [5]

23. Submission 3.3.13, p 7

24. Submission 3.3.21, p 31

25. Submission 3.3.18, p 33; submission 3.3.21, pp 27–31

26. Submission 3.3.14, p 12

27. Submission 3.3.18, p 31

28. Submission 3.3.21, p 27; submission 3.3.18, p 10

29. Submission 3.3.21, p 24; submission 3.3.18, p 10

30. Submission 3.3.21, pp 13, 44

31. Ibid, p 3; submission 3.3.13, p 8

32. Submission 3.3.21, pp 28, 29, 32

33. Submission 3.3.20, p 22

34. Submission 3.3.22, p 17

35. Submission 3.3.21, pp 33–34

36. Submission 3.3.23, pp 29–30

37. Ibid, pp 35–37

38. Ibid, pp 38–40

39. Ibid, p 40

40. Ibid, p 43

41. Submission 3.3.19, pp 42–43

42. Ibid, pp 5–6

43. Ibid, p 10

44. Ibid, p 29

45. Ibid, pp 40, 42–43

46. Ibid, pp 8–9

47. Ibid, pp 9–10

48. Ibid, p 20

49. Submission 3.3.18, p 5; submission 3.3.15, p 8; submission 3.3.14, p 2; submission 3.3.25, pp 3–4; submission 3.3.22, p 10

50. Submission 3.3.21, p 27; submission 3.3.18, p 5

51. Submission 3.3.18, pp 5, 31, 44

52. Submission 3.3.21, pp 24–25, 30; submission 3.3.18, pp 10, 23, 67–68; transcript 4.1.1, pp 20–21

53. Submission 3.3.21, pp 14, 24; submission 3.3.18, pp 5, 23, 52

54. Submission 3.3.14, p 2; submission 3.3.22, pp 12–13

55. Submission 3.3.22, pp 11–13; submission 3.3.14, p 17; transcript 4.1.3, pp 267–268

56. Submission 3.3.24, pp 35–36; transcript 4.1.3, pp 267–268

57. Submission 3.3.22, pp 11–13, 19; submission 3.3.14, p 17; transcript 4.1.3, pp 267–268; submission 3.3.21, pp 17–18

58. Submission 3.3.21, p 43

59. Submission 3.3.14, p 15; submission 3.3.22, p 12

60. Submission 3.3.22, pp 14–15

61. Submission 3.3.14, p 14; submission 3.3.25, pp 12–14

62. Submission 3.3.14, pp 16–17

63. Ibid, p 16

64. Submission 3.3.20, pp 3–4, 15, 20

65. Ibid, p 14

66. Ibid, p 15

67. Submission 3.3.23, p 3

68. Ibid, p 6

69. Ibid, p 7

70. Ibid, pp 7–11

71. Ibid, p 3

72. Ibid, p 3

73. Ibid, p 3

74. Ibid, pp 19–25

75. Submission 3.3.19, p 43

76. Ibid, p 15

77. Ibid, pp 13–14

78. Ibid, p 14

79. Ibid, p 16

80. Submission 3.3.21, pp 37–39; submission 3.3.22, pp 15–16

81. Submission 3.3.21, pp 14, 40, 44; submission 3.3.22, p 16; submission 3.3.14, pp 11, 13, 18; submission 3.3.18, pp 59–61

82. Submission 3.3.21, pp 36–38

83. Submission 3.3.20, pp 23–24

84. Submission 3.3.21, p 39

85. Submission 3.3.18, p 37

86. Ibid, p 39

87. Submission 3.3.20, pp 3–4, 23–25; transcript 4.1.1, p 113

88. Submission 3.3.23, p 55

89. Ibid, pp 48–49

90. Submission 3.3.19, p 25

91. Ibid, pp 12–25

92. Ibid, p 25

93. Ibid, p 30

94. Submission 3.3.14, p 2

95. Ibid, p 2; submission 3.3.21, p 14

96. Submission 3.3.21, pp 6–7

97. Ibid 3.3.21, pp 12–16

98. Submission 3.3.14, p 14; submission 3.3.22, pp 6–7

99. Submission 3.3.24, p 14

100. Ibid, p 14

101. Submission 3.3.20, pp 13–14

102. Submission 3.3.18, pp 21, 36

103. Ibid, p 21

104. Submission 3.3.14, p 12; submission 3.3.17, pp 20–21; submission 3.3.18, pp 6, 21; submission 3.3.24, p 3

105. Submission 3.3.14, p 12; submission 3.3.18, p 29

106. Submission 3.3.14, p 13

107. Ibid, p 18

108. Ibid, p 19

109. Ibid, pp 18–20

110. Ibid, pp 18–20; submission 3.3.18, p 23

111. Submission 3.3.24, pp 18–19

112. Ibid, pp 5–6; submission 3.3.25, pp 30–31, 34

113. Submission 3.3.18, pp 23, 26

114. Ibid, pp 23, 26

115. Submission 3.3.21, p 11

116. Submission 3.3.17, pp 16–17

117. Submission 3.3.14, p 9

118. Submission 3.3.22, p 16; submission 3.3.25, p 48

119. Document A8, p 8; doc A20(b), pp [18]-[19]

120. Submission 3.3.23, p 44

121. Ibid, pp 16, 54

122. Ibid, pp 45–46

123. Ibid, pp 6–11

124. Ibid, pp 42–43

125. Ibid, p 43

126. Ibid, pp 38, 44

127. Ibid, p 30

128. Submission 3.3.19, p 12

129. Ibid, p 19

130. Ibid, p 38