Chapter 3: Treaty Principles and Standards
- 3.1 Introduction
- 3.2 Previous mandate inquiries
- 3.3 The principles of partnership and equal treatment and the duty of active protection
- 3.3.1 Tino rangatiratanga, mana, and decision-making
- 3.3.2 Tikanga and whanaungatanga
- 3.4 Treaty Principles, Tino Rangatiratanga, and Ngātiwai
- 3.4.1 Rangatiratanga guided by tikanga
- 3.4.2 Te iwi o Ngātiwai: iwi and hapū
- 3.4.3 The ‘locus of rangatiratanga’ within Ngātiwai
- 3.4.4 Rangatiratanga is not held only by hapū
- 3.5 Assessing the Crown’s active protection of tino rangatiratanga
In this chapter, we identify and set out the relevant Treaty principles and standards by which we will assess the actions and omissions of the Crown in the circumstances under inquiry. The central theme of our inquiry concerns hapū rangatiratanga. To address this issue we consider the key Treaty principle concerns the Crown’s duty to protect actively the tino rangatiratanga of the groups affected by the Ngātiwai Trust Board’s Deed of Mandate.
The Crown’s recognition of mandates has now been the subject of several Tribunal inquiries. Although the circumstances have varied, and the Crown’s approach to settlement has developed over time, the findings of those Tribunals have assisted in determining our approach to assessing the Crown’s conduct against Treaty principles. The Ngāpuhi mandate Tribunal framed a set of minimum standards by which to assess the Crown’s duty of active protection in a mandating context. These seem to us to provide an appropriate test of the Crown’s conduct in the circumstances of the Ngātiwai mandate.
We acknowledge at the outset that the circumstances we face are not the same as those of the Ngāpuhi mandate inquiry. We therefore set out the evidence presented to us about how tino rangatiratanga has operated in the context of Ngātiwai and the groups bringing claims in this inquiry, both historically and to the present day. We have paid close attention to what the claimants and the trust board have told us about the exercise of hapū rangatiratanga within the groups included in the Ngātiwai Deed of Mandate.
The Pakakohi and Tangahoe settlement claims Tribunal was the first to consider the Crown’s approach to mandating. The Tribunal determined that the relevant Treaty principles were those that guaranteed rangatiratanga to Māori groups in the conduct of their own affairs and required the Crown and Māori to act reasonably and with absolute good faith towards each other. The settlement of historical claims, in the Tribunal’s view, should not create fresh grievances.1
Before assessing the Crown’s handling of the mandate, the Tribunal sought evidence among the claimants of distinct cultural and political identity, distinct claims, and support for a separate settlement. It did not consider the claimants met the threshold it had established and so did not closely examine the Crown’s conduct. However, we place some importance on the Tribunal’s statement that, as a general principle, a conjoint marae and hapū approach to mandating was ‘fundamentally sound’. The Tribunal considered that local marae were the best place to look to in matters of customary authority and commended a ‘bottom up’ process of hui on marae to generate support for the mandate.2
Over three inquiries, the Te Arawa mandate and settlement process Tribunals encountered a situation in which the Crown was required to weigh widespread opposition to a mandate from well-organised hapū. The relevant Treaty principles were determined to be those of reciprocity, active protection, partnership, equity, and equal treatment. In the context of the mandating process, the Tribunal considered these principles required the Crown to act honourably and with the utmost good faith, fairly, and impartially; to protect actively all Māori interests; and to consult with Māori.
In its first report in 2004, the Tribunal identified flaws in the mandating process. It did not, however, make a finding of Treaty breach. It suggested that the accountability and representivity of the mandated body should be debated thoroughly, and that these issues be resolved before the mandate could be reconfirmed. The Crown needed to ensure that it minimised damage to tribal relations.3
By the time of its second report in 2005, the Tribunal calculated that just under half of the affected hapū of Te Arawa wanted to withdraw from the mandate. Although, again, the Tribunal did not make a finding of Treaty breach, it suggested the Crown should negotiate with more than one mandated group at the same time in a flexible, practical, and natural application of the Crown’s large natural groups policy.4
In a third report in 2007, the Tribunal concluded that the Crown had not taken up the suggestion of contemporaneous negotiations. The Tribunal found that the Crown had breached the Treaty principles of partnership and equal treatment by not ensuring that Te Arawa hapū could vote at hui-ā-hapū on their representation on the mandated entity. Such a vote would clarify whether certain claimant groups, which the Crown characterised as ‘disaffected individuals’, had wider support. In recommending a clearer process to determine support for a mandate, the Tribunal also said the Crown must ensure that hapū were able to withdraw from the mandate.5
The Tribunal suggested that the Office of Treaty Settlements (OTS) take steps to better understand the tikanga of communities affected by matters of mandate. If the Crown was to work with Māori communities in a way that allowed them to exercise their tino rangatiratanga, it was vital to ensure the proper application of tikanga. This understanding would help to ensure sustainable Treaty settlements. The promotion of hui or mediation and the time needed for consensus decision-making were all mechanisms that could be used to determine and put to bed issues of mandate.6
The Crown’s approach to settling the historical claims of Ngāti Whātua o Ōrākei was the subject of the Tāmaki Makaurau settlement process Tribunal. OTS had selected one group to work with exclusively towards a settlement.7 By the time the Crown met neighbouring groups face to face, a settlement with the first group was on the table and the interests of the various parties had become polarised. The Tribunal said this damaged whanaungatanga. It was ‘a great wrong’, as it affected Māori society at its very core.8 The Tribunal considered the extent of the problems it encountered required it to examine the Crown’s overall process:
We think Treaty settlements are supposed to improve relationships. What we are seeing in the Tribunal, though, is that the process of settling is damaging more relationships than it is improving. How has this come about?9
The question went to the heart of the Treaty guarantees in article 2.10 The Treaty had confirmed tino rangatiratanga, and being a rangatira was about maintaining relationships, not just between a rangatira and the people, but also between different hapū and iwi that independently possessed and exercised rangatiratanga. Rangatira were maintained in their positions of authority by their whanaunga, which meant that whanaungatanga was a value deeply embedded in the maintenance of rangatiratanga. The Tribunal emphasised the reciprocal obligations that whanaungatanga bestowed on rangatira, as it ‘encompassed the myriad connections, obligations, and privileges that were expressed in and through blood ties, from the rangatira to the people, and back again’.11
The Tribunal said this was why OTS officials needed an understanding of whanaungatanga when seeking a settlement.12 Officials needed to take a considered approach in applying the Crown’s large natural groups policy, talking to all groups that would be affected by settlement and taking into consideration the negative impacts for whanaungatanga if the wrong approach were taken.13
The Tribunal said the principle of active protection requires the Crown to understand the relationships, arising both from whakapapa and from politics, between all relevant groups; to act wherever possible to preserve amicable tribal relations; and to act fairly and impartially towards all iwi without giving an unfair advantage to one. This last point was especially important in situations where inter-group rivalry was present. The Tribunal found that prejudice existed, arising primarily from damaged relationships. Instead of supporting the whanaungatanga that underpinned rangatiratanga, the Crown’s actions had undermined it.14
The East Coast Settlement inquiry addressed the Crown’s recognition of the mandate of Te Rūnanga o Ngāti Porou. The claimants said the groups they represented were not Ngāti Porou but independent iwi in their own right and Te Rūnanga had no mandate to represent them. They alleged the Crown had recognised a mandate that did not make it clear that their historical claims were included and that Crown officials did not consult them until after the mandating process was complete.15
The East Coast Settlement Report confirmed the importance of assessing the level of support or opposition to a mandate. By making that assessment, the Tribunal concluded there was not sufficient evidence of support for the claimants’ position, and that delaying the settlement would involve prejudice to ‘far greater’ numbers than ‘the small minority represented by the claimants in this inquiry’.16
Although the Tribunal identified flaws in the Crown’s mandating process, these did not amount to a breach of Treaty principles and were not sufficiently severe to a halt to negotiations.17 However, the Tribunal made suggestions for improvements. These included: inviting submissions when a proposed mandate strategy was released and when the Deed of Mandate was released; providing claimant communities with early and comprehensive information; writing directly to affected Wai claimants; and ensuring that ‘all interested parties in a negotiated settlement have access to unhindered participation at every stage of the mandating process’.18
The Crown’s obligations to hapū have been at the forefront of Tribunals’ considerations of mandating processes. These obligations were stated most forthrightly by the Ngāpuhi mandate Tribunal, which addressed the Crown’s recognition of the Tūhoronuku Independent Mandated Authority (IMA) to represent all Ngāpuhi in Treaty settlement negotiations. The Tribunal identified the centrality of hapū as a primary social grouping within Ngāpuhi, of hapū rangatiratanga as a ‘very important dynamic of the iwi’, and of hui-ā-hapū on home marae as the centre of decision-making.19 Where hapū are central to the social organisation of the community, the Tribunal said, the active protection of the rangatiratanga of the hapū is the primary Treaty responsibility of the Crown.20
In order to assess the Crown’s performance of its duty of active protection during mandating, the Tribunal established minimum standards. The Crown has obligations to:
- ensure that it is dealing with the right Māori group or groups, having regard to the circumstances specific to that claimant community so as to protect its intra-tribal relationships;
- practically and flexibly apply the large natural groups policy according to the tikanga and rangatiratanga of affected groups;
- allow for an appropriate weighing of interests of groups in any recognised mandated entity, one that takes into account factors including the number and size of hapū, the strength of affected hapū, and the size and location of the population; [and]
- recognise that the structure of the mandated entity must allow for hapū interests to be tested and heard[.]
An assessment against these standards provided the basis for protecting actively the rangatiratanga and tikanga of hapū that were opposed to their claims being negotiated by the mandated entity. The protection of hapū interests then needed to be weighed with that of non-hapū interests in the modern context.21
The Tribunal focused on the structure of the Tūhoronuku IMA and the extent to which hapū could exercise their rangatiratanga within that structure. It did not agree with the Crown’s view that problems with the structure were manageable because changes could be made. The Tribunal found that the Crown’s recognition of the Tūhoronuku IMA’s mandate had locked in some hapū against their will, amounting to a breach of their Treaty right to choose their leadership according to their tikanga and their cultural preferences.22 The Tribunal found that the constitution of the Tūhoronuku IMA was not tika because it did not sufficiently support hapū rangatiratanga.23 The Tribunal found that the Crown had failed to act in partnership or sufficiently protect hapū rangatiratanga.24
The Tribunal recommended that the Crown pause its negotiations with the Tūhoronuku IMA until the mandate included a workable withdrawal mechanism and means for resolution and consensus discussion. The Tribunal wanted the Crown to be satisfied that Ngāpuhi hapū had been given the opportunity to discuss and confirm:
- whether they wanted to be represented by the Tūhoronuku IMA;
- who would be their hapū kaikōrero and hapū representatives on the Tūhoronuku IMA; and
- whether they thought there was an appropriate level of hapū representation on the Tūhoronuku IMA board.25
Our assessment of previous mandating inquiries confirmed to us that the Treaty principles of partnership and equal treatment, and the duty of active protection are of fundamental importance to the Crown’s role, and in the context of mandating, are closely linked. The settlement of historical Treaty claims is intended both to provide restitution for past grievances and to restore the Treaty relationship. The Crown must act in good faith and with consistency.26
At the heart of the Treaty relationship is a partnership between kāwanatanga and tino rangatiratanga.27 Tino rangatiratanga is guaranteed to Māori by article 2 of the Treaty and has been expressed as ‘the highest chieftainship’ and as ‘full authority’.28 This guarantee imposes upon the Crown a duty of protection, which – in the words of the Court of Appeal – is ‘not merely passive but extends to the active protection of Maori people in the use of their lands and waters to the fullest extent practicable’.29
As we have seen, Tribunals that have inquired into mandate issues have emphasised the importance of protecting actively the tino rangatiratanga of hapū. To do this requires the Crown to understand and provide for the application of tikanga, and to understand and preserve tribal relations where possible.30
Tribunals have not always considered flaws in the Crown’s conduct to amount to a breach of the Treaty. Nor has the active protection of hapū rangatiratanga always been given absolute primacy. We agree with the Ngāpuhi mandate Tribunal that what is required is set out in that Tribunal’s minimum standards. The Crown must balance its Treaty responsibilities to the Māori groups with whom it is seeking to restore a relationship and settle historical grievances, while respecting the tikanga of these groups. Foremost is the question of how the Crown can best balance its preference to settle with ‘large natural groups’ – often but not always iwi – with the Treaty rights of hapū.
A pre-requisite to meeting the Crown’s obligations of partnership including active protection, therefore, is an understanding of tino rangatiratanga. We first discuss this with reference to what previous Tribunals have said about tino rangatiratanga. In the following section we examine the evidence of how tino rangatiratanga is expressed among the groups involved in this inquiry. We do so to better understand, in the context of settlement negotiations, the Crown’s Treaty obligations to Ngātiwai and to the hapū included in the Deed of Mandate.
A number of Tribunals have discussed the relationship between tino rangatiratanga and mana.31 The Ōrākei Tribunal determined that ‘rangatiratanga denotes the mana not only to possess what one owns but, and we emphasise this, to manage and control it in accordance with the preferences of the owner’.32 Tribunals have therefore considered autonomy to be a core aspect of the guarantee of tino rangatiratanga.33
In traditional Māori thinking, the ‘respect paid to the independent mana or rangatiratanga of all groups was the key to keeping the peace’.34 The Tūranga Tribunal said the need for the Crown to use its kāwanatanga powers to foster autonomy ‘cannot be overstated. It is the single most important building block upon which to re-establish positive relations between the Crown and Maori.’35
The Ngāpuhi mandate Tribunal said tino rangatiratanga is the basis of Māori political and social organisation and the foundation of Māori decision-making. Therefore, in the modern context the duty of active protection can be applied to the range of structures – such as iwi, councils, trusts, or hapū – that Māori might use to make their decisions and exercise their authority. However, the Tribunal stressed that, in the context of mandating leaders to negotiate the settlement of Treaty claims, ‘which, above all, concern hapū’, hapū must be empowered to make that choice according to their tikanga.36
A key element of autonomy is the capacity to make decisions about matters such as resources, land, and leadership. In decision-making, all members of a community have a part to play. The Te Whānau o Waipareira Tribunal drew attention to the fact that leaders cannot act effectively without the respect, loyalty, and trust of their communities. Leaders and supporters owe each other reciprocal rights and duties. Indeed, that Tribunal characterised rangatiratanga as the reciprocal relationship of trust between leaders and members of a Māori community that bound the people together.37 The Ōrākei Tribunal similarly said the authority embodied in the concept of rangatiratanga was ‘also the authority of the people’.38
Tikanga has been described as the set of beliefs and customs worked out over time to guide the ‘tika’ conduct of Māori affairs. Tikanga governs how people should interact, identify themselves, and behave. Such guidelines tend to be predicated on personal connectedness and group autonomy.39 The importance of observing the tikanga that guide collective decision-making through hui-ā-hapū was highlighted, as mentioned earlier, by the Te Arawa and Ngāpuhi Tribunals.
Although there are many constants throughout Aotearoa, ideas and practices relating to tikanga can vary from region to region.40 The Te Arawa settlement and Ngāpuhi mandate Tribunals reminded the Crown of the importance of knowing the tikanga of the communities with which it seeks to settle grievances and restore relationships.41
Whanaungatanga is a fundamental principle underpinning tikanga. Mead describes whanaungatanga as embracing whakapapa and focused on relationships. Individuals may expect to be supported by their relatives, but the collective group also expects the support and help of its individuals.42 As we observed earlier, the Tāmaki Makaurau Tribunal stated that whanaungatanga is at the core of being Māori and remains a value ‘deeply embedded in the maintenance of rangatiratanga’.43
Obligations of whanaungatanga apply not only to internal relationships between rangatira and their people, but externally, too, between groups such as hapū who hold and exercise rangatiratanga. The ability of rangatira and of Māori groups to maintain these relationships is vital to their tino rangatiratanga and is protected under article 2.44
In order to show how the Treaty principles we have identified are relevant to the circumstances of this inquiry, we need to establish how tino rangatiratanga is exercised within Ngātiwai and the groups that are included within the scope of the Ngātiwai Deed of Mandate.
We look first at what the parties told us about tikanga, particularly as it affects mandating for settlement purposes. We then discuss the dynamics of tribal affiliation, as they were presented to us in the context of the inquiry.
The evidence of the parties on their tikanga varied, but we identified three themes.
First, the claimants emphasised the importance of collective decision-making and action, particularly in the context of a mandate decision. Hūhana Lyndon was clear that ‘when we face challenges it’s through the process of hui and coming together and seeking guidance from one another that we see rangatiratanga in its full fruition’. For Ms Lyndon, it was not the location of decision-making that mattered but the fact that communities came together to make decisions.45
For Mylie George, the ability to make decisions and choices was key to the exercise of rangatiratanga. She described the model of decision-making she learned from childhood:
It’s about our whānau being able to choose for themselves where they stand in those positions and to activate a hapū rangatiratanga, whether that’s family, whether that’s through our hapū or marae, whatever that may be.46
This was the tikanga that needed to be used, in Ms George’s view, in the context of the Treaty settlement kaupapa.47
We observe that what is at issue for these claimants is not really the question of whether hapū or marae are to be preferred. Rather, the claimants say it is for the communities themselves to determine how they are to be represented. And to do so, collective decision-making at hui is the foundation.
Pereri Māhanga stressed hui-ā-hapū as the ‘cornerstone’ of hapū decision-making and action for Te Waiariki. Without the specific authority of the hapū hui – without endorsement – it was impossible for a person from the hapū to ‘bind our collective force to a path, or to an agreement’.48
Counsel for Patuharakeke submitted that decisions on Treaty settlement processes for the hapū had been made by hui-ā-iwi, consultation with kaumātua, and discussion with and support from all three of the hapū’s formal governance entities: its trust board, the Takahīwai Marae Committee, and the Takahīwai Marae Trustees.49
Asked how Patuharakeke would make decisions on matters that touched on the affairs of another hapū, Jared Pitman said this would usually be done through hui-ā-hapū, and usually with guidance from the taumata and rangatira of the hapū: ‘if it’s a discussion that needs to take place between ourselves and another hapū, then we need to ensure that that’s done under tikanga Māori’.50
A second focus for the claimants was whanaungatanga.
Mr Māhanga was concerned that relationships had been damaged profoundly by the Crown’s decision to recognise the Ngātiwai Deed of Mandate:
I am witnessing tribal conflict and division almost everywhere I go in Te Taitokerau because of the effect this recognition is having on our people at home. Our whanaungatanga and kotahitanga is being tested by the very people that we entered into a relationship with to protect this tikanga.51
Mr Pitman described whanaungatanga as a ‘central principle’ of Patuharakeke identity and rangatiratanga, both today and in the past. Hapū rangatiratanga, he said, encompasses a duty to manage ‘inter-tribal relationships’.52 The negative impact of the mandate process on Patuharakeke’s ability to manage these relationships was a key concern for the hapū and, he claimed, a clear failing of the Crown’s duty of active protection.53
Patuharakeke depended on whanaungatanga in its interactions with other groups, including Ngātiwai.54 This point was also made by the Te Uri o Makinui claimants, who acknowledged their whanaungatanga links with Ngātiwai.55 The Te Uri o Hikihiki whānau claimant Carmen Hetaraka said many of the hapū affected by the mandate acknowledged their whanaungatanga as Ngātiwai.56
The third theme we identified was the importance the trust board placed on the principle of kotahitanga or unity. Indeed, the board told us that its whole mandate structure is premised on the principle of kotahitanga and the common interests of all members of Ngātiwai.57
During the mandating process, the trust board seems to have come to a view that it needed to give more attention to acting in accordance with Ngātiwai tikanga. In 2015 it prepared a ‘Hapū Response Report’ which outlined to OTS the board’s position on the hapū that had been included in the mandate. The trust board’s overall approach, the report said, was a response to ‘concerns expressed to us by our kaumātua regarding our Tikanga’. The board said it valued and respected these concerns and in future would base its engagement on its tikanga practices. It also said it would make every effort to engage with its people in a manner consistent with the values and beliefs of Ngātiwai tūpuna. The approach would be based on an understanding and acknowledgment of ‘working together in harmony within our tikanga’. In particular, this would involve practising the five principles of kotahitanga, aroha, whakapono, rangimārie, and tūmanako. We interpret these broadly as unity, love, honesty, peace, and hope. Kotahitanga, the report said, is:
The notion of unity, working and bringing our people together, being open to debate and difference of opinion being expressed, our ultimate goal is to arrive at a united iwi position.58
These tikanga principles do not focus directly on the decision-making process in the way that the claimants’ evidence does. Rather, they appear to us more to address the obligation to maintain whanaungatanga relationships.
In the settlement context, however, counsel for the trust board submitted that most in Ngātiwai wanted to maintain ‘a unified approach’ to settlement and that ‘kotahitanga is a message that has come through strongly from all quarters.’59 The trust board identified the separate Treaty settlements for the two southern Ngātiwai hapū, Ngāti Manuhiri and Ngāti Rehua-Ngātiwai ki Aotea, as a source of division for the iwi, and this had strengthened the board’s resolve to keep the iwi together.60 A single, comprehensive settlement for all remaining Ngātiwai claims, in the board’s view, would minimise the negative consequences of allowing separate settlements including impacts on the social and cultural dynamics of Ngātiwai and its unity, whakapapa, and identity.61 For Kristan MacDonald, who at the time of our hearings was deputy chair of the trust board and chair of its Treaty Claims Committee, unity in achieving a mandate for settlement negotiations was critical: ‘It is more important than ever that the Ngatiwai iwi shows mana and kotahitanga at this historic time. Kia kotahi te hoe.’62
The assertions of Ngātiwai unity made by the trust board prompted us to consider the evidence presented in this inquiry on the identity of Ngātiwai, especially in relation to their neighbouring and ‘shared’ hapū and iwi. Introducing the Deed of Mandate, trust board chair Haydn Edmonds wrote: ‘We are now at the cusp of clarifying the origins and identity of Te Iwi o Ngātiwai in the history books.’63 It became clear to us during the inquiry that the origins and identity of Ngātiwai are complex.
Neither the claimants (who are divided among themselves on this issue) nor the Ngātiwai Trust Board could agree on when Ngātiwai came into existence as an iwi. The Deed of Mandate claims ‘the first period of human occupation, extending back to Māui-tikitiki-a-Taranga and Māui Pae’ as the birth era of the iwi. It is ‘the unbroken line of descent from the eponymous ancestor Manaia; his descendant Manaia II and his people of Ngāti Manaia which gives the Iwi its unique and distinctive identity’.64 Manaia II is said to be the father of Tāhuhu-nui-a-rangi, the progenitor of Ngāi Tāhuhu, and it is related by some claimants that he came from Hawaiki in the Tūnuiarangi waka (canoe).65 (Others say Ngāi Tāhuhu came originally from Hawaiki in the Moekakara waka.66) In any case, Ngāi Tāhuhu pre-date Ngāpuhi’s founding ancestor, Rāhiri, by several generations. At least one of Rāhiri’s wives was Ahuaiti of Ngāi Tāhuhu. Another wife, Whakaruru, may also have been of Ngāi Tāhuhu, although others say she belonged to the early Taitokerau iwi, Ngāti Awa.67 By associating Ngātiwai with Ngāti Manaia and Ngāi Tāhuhu, the trust board appears to us to be attempting to be as inclusive as possible of those who might have interests through Ngātiwai. In cross-examination, Mr MacDonald agreed with the proposition that ‘Ngātiwai is Ngāti Manaia rebranded.’68
This ‘unique’ identification of Ngātiwai with Ngāti Manaia was contested by the Te Whakapiko claimants, who regard themselves as a hapū of Ngāti Manaia and not Ngātiwai, but whose claims are assumed by the trust board to be of Ngātiwai (and, since OTS have recognised the trust board’s mandate, also assumed to be so by OTS). A similar situation exists with groups who identify with the early peoples, Ngāi Tāhuhu or Te Kawerau (the latter a Tainui people). The claimant Rowan Tautari was concerned about the broad statements made about Ngāi Tāhuhu and other groups because the ‘inference seemed to be that these were hapu of Ngati Manaia, which automatically transformed them into Ngatiwai’.69 Marie Tautari told us that it ‘was not until 1974 … that Ngātiwai began to form as a group beyond Whangaruru’. She also said:
Today, Ngātiwai is perceived as an iwi. However, this is a relatively later phenomenon, strengthened by the Fisheries Settlement of 1992, which gave the Ngātiwai Trust Board, a charitable trust, resources to develop a national profile.70
We also received evidence of Ngātiwai from Native Land Court records (the court operated in north Auckland from the 1860s). Ngaire Hēnare of Te Waiariki recounted that Te Waiariki assisted Kāwiti’s people (Ngāti Hine and others) in the wars against the Crown in the 1840s, with the result that they – Te Waiariki – were regarded as rebels for years afterwards. In the wake of the arrival of the Native Land Court, officials believed that their chief, Mohi Te Peke, would soon lead a rebellion. As a consequence Native Land Court Judge John Rogan is said to have written that if that were the case, kūpapa (neutral or pro-Crown) tribes would sell all of Mohi Te Peke’s lands to the Crown. Ngaire Hēnare asserts that this began to come to pass within two months of Rogan’s letter.71
Probably in reaction to the arrival of the Native Land Court and various disputed sales to the Crown, a declaration of 7 May 1887 signed by 226 members of ‘te iwi o Ngatiwai’, led by Maihi P Kāwiti, was published in Māori in a newspaper.72 It declared Ngātiwai lands to be still papatipu lands notwithstanding any ‘sales’ and objected to the arrival of surveyors and the intrusion of government law. It also declared that this intrusion trampled on the gift of rangatiratanga recognised by the King of England in the Declaration of Independence in 1835, preserved by the Treaty of Waitangi, and confirmed again in section 71 of the Constitution Act 1852. In view of such a ringing declaration of identity and autonomy it is clear to us that Ngātiwai were conscious of themselves as an independent people at least by 1887.73
Other evidence shows that at least some of those who signed also regarded themselves as belonging to other descent groups, including Pita Tūnua of Te Whakapiko (no 116) and Māhanga Kurī of Te Waiariki (no 214).74 No doubt there were others. But, as many claimants pointed out, and as is also implicit in the concept of ‘shared’ hapū recognised both by the Crown and by the trust board, hapū can belong to several ‘large natural groups’. These include populous iwi such as Ngāpuhi, Ngāti Whātua, Te Kawerau, and others. By virtue of the constant cross-hatchings of descent and intermarriage, individuals can also belong to many different iwi and the hapū which relate to them. However, unlike individuals, the rights and interests of single hapū are not shared across all hapū connected to them by kinship. Rights and interests traditionally belonged to the hapū.75
When individuals are discussing the affairs and rights of one descent group and making decisions for that autonomous hapū, they are acting at that time as members of that group and no other. The exception is when there is a pre-existing mutual agreement for different hapū to work together, temporarily but in alliance. Individuals remove their Te Waiariki or Te Whakapiko ‘hats’ when wearing their ‘Ngātiwai hat’. That is why Hōhepa Māhanga could appear before the Native Land Court one day and say, ‘I belong to Te Waiariki of the Ngāpuhi Tribe’ and the next day in relation to other land could say ‘I belong to Ngāti Hau hapū of Ngāpuhi tribe’, and the previous day (figuratively speaking) his father, Kurī Māhanga, could sign a declaration as Ngātiwai.76
The Te Uri o Makinui claimant Michael Beazley explained that taking part in the governance of autonomous hapū was also a matter of ‘ahi kā’ (residence). Mr Beazley had descent links to Ngāti Mahuta of Tainui through his greatgrandmother, a daughter of King Tāwhiao. Both father and daughter are buried on Taupiri. Mr Beazley said this descent allowed him to speak on the marae at Ngāruawāhia, but he did not think he could take part in decision-making there as he had not spent much time in the Kīngitanga rohe. It was an ahi kā matter.77
Returning to the Ngātiwai petition of 1887, this means that when the 226 people signed as Ngātiwai in 1887 on that occasion, they were not also signing as Te Waiariki, Ngāti Rehua, or Te Whakapiko but as Ngātiwai only. This seems to have been a difficult concept for claimants to articulate. In our hearings, counsel asked questions aimed at getting various claimants to agree that on one occasion or another their ancestors admitted they were Ngātiwai.78
This evidence highlights two dynamics of tribal affiliations that are perhaps not unique to Ngātiwai, but are certainly prominent in their affairs. First, it can be the case that individuals with whakapapa to multiple hapū and iwi can and do choose to identify to the various groups they whakapapa to according to the circumstances. It is not a question of either/or when it comes to iwi and hapū affiliation, but both. For this reason, it is of little consequence that some individuals chose to identify as Ngātiwai on certain occasions, as the 226 signatories did in 1887.
Secondly, however, it is also the case that hapū and iwi are their own entities. Each will exercise their tino rangatiratanga, independently but with regard to place, context, and neighbouring relationships The position of hapū and iwi with multiple whakapapa connections and connections to other hapū and iwi cannot be compared to the position of individuals who can pick and choose among their multiple hapū identities according to the occasion. Pēpuere Pene gave us a succinct illustration of this point. He explained how he met Sir James Hēnare in 1981 at Ōtiria Marae to seek his support for Ngātiwai to become a registered iwi. Sir James offered his support. But first, he said: ‘When Ngāti Hine is in Whāngaruru we are all Ngātiwai for the day. When Whāngaruru is in Te Orewai we are all Ngāti Hine for the day.’79
From this, we observe that it is the right of individuals to choose which group they identify with that is appropriate to their whakapapa, and appropriate to the circumstances; much as it is the right of hapū and iwi to act collectively in a way that is appropriate to the circumstances.
The Ngātiwai Trust Board argued that hapū are not the ‘sole locus of rangatiratanga’ within Ngātiwai,80 which chose in 1984 to use a marae-based system to organise itself.81 Although the use of marae in this way is a relatively recent development, we have reviewed the historical evidence in order to better understand the circumstances in which it came about.
It seems that in earlier times Ngātiwai had two centres of population: the second of these was on Aotea (Great Barrier) after its conquest by Te Whāiti of Ngāti Manaia and his son, and by Rehua and his son in the late eighteenth century. The first Ngātiwai centre was at Whangaruru, from where descendants of Manaia II led the invasion of Aotea about 1780.82 Whangaruru was the source. The 1887 petition was issued from Whangaruru, and it is clear that Whangaruru with its hapū and marae is and was the ‘nexus of Ngātiwai’, as Mr MacDonald put it. It was a kāinga for the ancestor Manaia and the birthplace of Te Rangihokaia (whose descendants led the conquest of Aotea).83 The 1887 petition itself concerned Whangaruru lands.84
In his 1869 Ōrākei judgment for the Native Land Court, Chief Judge Fenton called Ngātiwai ‘the people of Whangaruru’.85 Also in the land court, in 1881 Hēnare Te Moananui of Ngātiwai and Ngāpuhi said in evidence concerning Hauturu: ‘In Governor Hobson’s time [early 1840s] Ngatiwai lived at Big Barrier … Ngāti Wai … were partly [at that time] at Whangaruru and Big Barrier’.86
Various Ngātiwai tūturu hapū, and even some shared hapū like Ngāti Tautahi who originated among Ngāpuhi but had a long history on the east coast, are mainly associated with Whangaruru (although they now have other interests). Their marae are there or near there. There are six marae at Whangaruru and most of them are associated with Te Uri o Hikihiki, the largest tūturu Ngātiwai hapū.87
Mr MacDonald described the trust board’s origins in Whangaruru in 1945, explaining that ‘the first Ngātiwai Trust Board was established to manage the Whāngaruru-Whakatūria 1D9A and 1D10A blocks on behalf of “the Ngātiwai tribe”’ (emphasis in original).88
Mr Beazley agreed that the Ngātiwai Trust Board’s origins were in Whangaruru. He said at one time there was a push to alter its structure from marae-based to hapū-based. This failed, he said, ‘because the marae up at Whangaruru had control of the [board] at the time and did not want to relinquish control in favour of hapū’.89
Mr Edmonds, the trust board chair, discussed his vision for Ngātiwai with the Tribunal. He agreed that the identity of Ngātiwai was ‘evolving’, and destined to evolve further in the post-settlement era. Hapūtanga was for him another evolving phenomenon.90 Mr Edmonds discussed the evolution of the trust board from a hapū-based to a marae-based institution. He said that with urbanisation in the early 1980s many people had left the coast, weakening the tribal base. The board had problems with the local council and land retention. Mr Edmonds said these problems were the catalyst of action towards ‘a rebuilding of the unity of Ngātiwai’. The rebuilding
spread throughout the top of Ngātiwai up in Whangaruru and Rawhiti all the way down to the [Great] Barrier [Aotea], and as we fought our way down for recognition of coast and ourselves as a people we reaffirmed our whakapapa with each other and strengthened by using the buildings that were available to us and in 1984 a constitution was put together. [Emphasis added.]91
Mr Edmonds went on to say:
Because for many generations Ngātiwai has operated as an iwi the settling of lands and return of things to Ngātiwai were always put in the name of Ngātiwai, not in the individual hapū names. So they became for the benefit of all Ngātiwai. So it became more apparent that a Taumata that could help and assist right across the rohe of Ngātiwai would be useful because we would traverse from Bland Bay … and from Tuparehuia down to Aotea, from Aotea across … and make our way back up the coast. And in all of those villages reaffirming our whakapapa from there.92
This vision of the chairperson was an exciting plan for many people and a worthy struggle: the creation in the late twentieth century of a unified Ngātiwai identity for the future out of a disparate collection of hapū spread out in little villages along the coast, and in offshore islands from Aotea back up to the starting point of Whangaruru. It was to be done on marae and by reaffirming the lateral links of intervening hapū (between Whangaruru and Aotea) with Ngātiwai whakapapa. There were plenty of such links to call on. Thus, in introducing the Deed of Mandate, Mr Edmonds writes:
This is clearly a water-shed period in our history as a tribe and will mark the difference between vague acceptance that Ngātiwai exists as an iwi in its own right and our future development and growth as a strong and united people.93
These efforts by the trust board to achieve a united iwi, it strikes us, form the context within which we need to understand what the other communities – hapū and whānau – have told us about their tino rangatiratanga.
The Crown and the Ngātiwai Trust Board told us that, unlike Ngāpuhi, Ngātiwai could not be understood only in terms of strong and autonomous hapū.94 One question we need to consider is whether the steady focus on hapū rangatiratanga that the Ngāpuhi mandate Tribunal adopted is appropriate to the circumstances before us.
In a statement that, we think, reflects the particular geographical circumstances of Ngātiwai, Ms George told us that Ngātiwai are characterised first by ‘whānau rangatiratanga’:
In Ngātiwai we’re different. It’s whānau rangatiratanga because we’re all in our little bays and in our silos, so we enact that as families in our bays, and when we come together around kaupapa that includes everyone, then we do that as a hapū, and then we meet on our marae as well, so it’s very much a mixed model of who we are …95
The characterisation of a ‘mixed model’ of rangatiratanga and identity within Ngātiwai was endorsed by the Ngātiwai Trust Board in closing submissions. The trust board described Ngātiwai as ‘a series of closely-related coastal and island communities, often sharing whakapapa to several Ngātiwai hapū and sometimes drawing little or no distinction between themselves and their neighbouring whanaunga who did not whakapapa to Ngātiwai’.96
Ms Lyndon also offered an expansive interpretation of rangatiratanga:
So while there’s iwi, there’s hapū, there’s us on the kāinga, there’s our rohe Whangaruru comes together, but then there’s also landowners come together on issues of significance, and then our whānau itself. So I don’t believe that it’s fixed. I think that it’s something that we exercise when there’s an issue that we need to resolve.97
It is clear to us that the exercise of rangatiratanga today may also legitimately involve the use of structures such as trust boards and marae committees. Pereri Māhanga, who spoke for the Te Waiariki, Ngāti Kororā, and Ngāti Takapari claimants, himself chairs a trust board. Jared Pitman described the Patuharakeke Trust Board as ‘a contemporary expression of Patuharakeke rangatiratanga’.98 Similarly, the Ngātiwai Trust Board suggested that rangatiratanga was reflected in the trust board, and in its Deed of Mandate and advisory bodies.
However, Ngātiwai ki Whangaruru claimant Vicki-Lee Going, of Te Uri o Hikihiki, emphasised Ngātiwai hapū rangatiratanga: ‘We the hapu of Ngatiwai, especially those who practice ahi kaa, hold rangatiratanga in our rohe. That’s what I’ve always been taught. Not the marae. Not the Trust Board. The hapu.’99 Hapū were a point of identification, she said, providing people with the means to ‘know who we are, relate to other people, and make decisions’. The rangatiratanga of the people was inherent in the hapū they affiliated to within Ngātiwai. In her view, Ngātiwai rangatiratanga was exercised at hapū level.100
Hapū rangatiratanga was asserted most strongly by the Patuharakeke and Te Waiariki, Ngāti Kororā, and Ngāti Takapari claimants. Speaking for the latter group, Mr Māhanga accused the Crown of continued ‘mistreatment of our Hapu’.101 ‘Te Waiariki, Ngāti Kororā, Ngāti Taka Pari have not been afforded the rights to exercise our hapū rangatiratanga and decide for ourselves the path that would see the best outcome for Te Waiariki, Ngāti Korora, Ngāti Taka Pari.’102 Mr Māhanga acknowledged that the exercise of rangatiratanga within the hapū today required flexibility:
Speaking about rangatiratanga, and Hapu rangatiratanga as we practise it today, it is obviously very different from olden times. Nowadays it is not so much held in one or two people for their lifetimes, but rather it is taken up at certain times and for certain tasks of our Hapu, when our Hapu collectively determine it.103
But the hapū would not rest, he said, ‘from protecting our sovereignty, our Hapu Rangatiratanga’.104
Dr Guy Gudex for Patuharakeke told us the right of the hapū to self-determination and autonomy was an inherent right. It was also contained in article 2 of the Treaty. Dr Gudex outlined the effort Patuharakeke had made to rebuild itself over the last 50 years, including engaging with the Crown where necessary.105
A fundamental plank of its hapū rangatiratanga was the mana whenua Patuharakeke held within its rohe. The hapū acknowleged its links to other hapū and iwi, including Ngātiwai, but those iwi and hapū exercised rights within the rohe only through their ties to the people of Patuharakeke and by acknowledging Patuharakeke as mana whenua.106
As the parties to the inquiry explained their understanding of tino rangatiratanga in the context of mandating decisions, they emphasised the right to retain control over decision-making and the obligation to take account of whanaungatanga relationships.
Mr Pitman expressed clearly the link between Patuharakeke hapū rangatiratanga and the right of the hapū to make their own decisions on matters of mandate:
The Crown must cease negotiations with Ngatiwai Trust Board and recognise the rangatiratanga of Patuharakeke in its exercise of self-autonomy, to choose how we will be represented in settling Patuharakeke historical grievances. This must be done before further Crown breaches are committed and relationships between members of Patuharakeke and Ngatiwai are put at further risk.107
Similarly, counsel for Te Kapotai connected the ability to exercise rangatiratanga with the ‘ability to decide’:
The ability to decide is an essential part of rangatiratanga, and it is the ability to decide what representation and options for settlement are appropriate that hapū and claimants seek to preserve in the mandate process.108
Among the claimants who did not purport to represent hapū, Ms Lyndon said simply: ‘Rangatiratanga to us means the ability to regulate ourselves and determine our own pathways and future.’ Matters of Treaty settlement, in her view, were ‘wholly’ within this realm.109 Ms Going said the mandating decision was ultimately a question of freedom:
We should have the freedom to determine how we are going to proceed to settlement, freedom to decide who is going to be our representatives at the negotiation table with the Crown, freedom to determine who we are and what our future might look like.110
Speaking for the trust board, Mr MacDonald argued that setting aside the board’s established way of decision-making would be a denial of many Ngātiwai communities’ right to make their own decisions:
The other hapū within Ngātiwai can decide how they want to be represented, whether by the status quo or as a hapū. But marae communities should not be forced to reshape themselves to uphold a hapū ideology if it doesn’t exist in their reality. These are the tribal dynamics we are faced with today. If our people are happy with the current structure of representation, that must surely be their decision.111
It is our view that, on matters of profound importance, collective decision-making is essential. We also accept the point that the exercise of rangatiratanga may depend on particular circumstances and identities. In advancing her ‘mixed model’ of rangatiratanga and identity for Ngātiwai, Ms George echoed Ms Lyndon in describing rangatiratanga as ‘fluid’.112
We gained a clear sense that whanaungatanga rights and responsibilities were vital to the routine exercise of tino rangatiratanga by the ‘shared’ hapū that opposed their inclusion in the mandate. Patuharakeke, and the Te Waiariki, Ngāti Kororā, and Ngāti Takapari claimants, as well as Te Kapotai, expressed particular concern at the damage the mandate process had caused to their ability to maintain their relationships with other groups. Yet those claimants who considered themselves Ngātiwai also complained of ‘massive division’ and strained intra-iwi relations as a result of the Crown’s mandating process. They gave us the impression that damage to the internal and external relationships of their iwi went to the heart of what it was, for them, to be Ngātiwai.
The Ngātiwai Trust Board, too, placed a high priority on internal relationships within Ngātiwai, acknowledging that damage has occurred and that the effects have been serious. The desire to avoid further division has plainly motivated the board to seek to keep Te Iwi o Ngātiwai together under its mandate.
We are encouraged that this issue is of significant concern for all parties. This suggests to us that careful attention to the whanaungatanga obligations of all concerned may offer a pathway to resolving their differences.
Drawing these themes together, it is clear that, both historically and today, tino rangatiratanga has been exercised on a number of levels among the various communities that affiliate to Ngātiwai. For this reason, when speaking of Ngātiwai, it is not a question of asking whether people operated either as hapū or as iwi, or as whānau or marae, for they work together in these ways in different circumstances. And, while we sympathise with the desire of the trust board for unity under their mantle, this cannot come at the cost of whanaungatanga relationships. In the context of Treaty settlement negotiations, and specifically as the Crown sought to commence negotiations with the Ngātiwai Trust Board, we think the Crown had an obligation to recognise and take account of these essential features of the claimant community.
We consider that, to protect actively the tino rangatiratanga of the Ngātiwai Trust Board, Te Iwi o Ngātiwai, and the hapū and whānau communities that come partially or wholly within the mandate, the Crown had an obligation to protect actively their ability to maintain their whanaungatanga relationships and their right to make their own decisions.
The complexity and diversity of the communities within Ngātiwai who are affected by the mandate make the exercise of the duty of active protection a delicate and complex task. Our assessment of the Crown’s performance must be similarly nuanced. We must take into consideration those groups who say they cannot exercise their tino rangatiratanga within the Deed of Mandate and who do not support the deed in its present form. There are also those who chose to vote in favour of the mandate, who view the structure as an appropriate vehicle for the exercise of tino rangatiratanga. However, we reiterate that urgency for this inquiry was granted on the basis that the focus would be the Treaty relationship between the hapū named in the Deed of Mandate and the Crown. Where hapū are central to the social organisation of the community, the active protection of the rangatiratanga of the hapū is the primary Treaty responsibility of the Crown. While the inquiry was framed with the intention that all claimants could be heard on this matter, the extent to which the claimants have been able to demonstrate that their hapū exercise tino rangatiratanga will be an essential element of our analysis.
In this context, we consider the minimum standards established by the Ngāpuhi mandate Tribunal remain relevant to assessing the Crown’s performance of its duty of active protection. These standards draw on the findings of previous Tribunals and, in our view, are reasonable measures by which to assess the Crown’s conduct in recognising the mandate of any large natural group. To make this assessment, we need to determine who is encompassed within the mandate, the extent to which their consent was required for inclusion within the mandate, and their degree of involvement in decision-making structures. We also need to understand what actions the Crown may or may not have taken in relation to these matters. We analyse these questions in the following two chapters.
26. 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 24–25
28. Waitangi Tribunal, Report of the Waitangi Tribunal on the Motunui–Waitara Claim, 2nd ed (Wellington: Government Printing Office, 1989), p 51; Waitangi Tribunal, Report of the Waitangi Tribunal on the Orakei Claim, 3rd ed (Wellington: GP Publications, 1996), p 188
33. Waitangi Tribunal, Te Whanau o Waipareira Report (Wellington: GP Publications, 1998), p 215; Waitangi Tribunal, Ngāpuhi Mandate Inquiry Report, p 24; Waitangi Tribunal, Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims, 2 vols (Wellington: Legislation Direct, 2004), vol 2, p 739
67. Waitangi Tribunal, He Whakaputanga Me Te Tiriti / The Declaration and the Treaty: The Report on Stage 1 of the Paparahi o Te Raki Inquiry, 2 vols (Wellington: Legislation Direct, 2014), vol 1, p 28
85. Important Judgements Delivered in the Compensation Court and Native Land Court, 1866–1879 (Papakura: Southern Reprints, 1994), p 85. Fenton was under the impression that Ngātiwai was a new name for the Waiohua.