Chapter 4: Is the Deed of Mandate Adequately Representative and Accountable to Hapū?
- 4.1 Introduction
- 4.2 Claimant definition in the Deed of Mandate and the recognition of hapū
- 4.3 Representation and accountability
- 4.3.1 The trust deed
- 4.3.2 Attempts to change the trust deed
- 4.3.3 Do marae represent hapū?
- 4.3.4 The purpose of the additional advisory bodies
- 4.3.5 Is a different structure possible?
- 4.3.6 Does the trust board provide adequate representation and accountability to provide for the exercise of hapū rangatiratanga?
- 4.4 Did hapū consent to the mandate?
- 4.5 Withdrawal of consent
- 4.6 Representation, accountability, and consent: conclusion
In the previous chapter, we discussed the importance to hapū included in the Ngātiwai Deed of Mandate of maintaining their whanaungatanga relationships and making decisions according to their own tikanga. We concluded that the Crown had a duty to protect actively the ability of hapū to exercise their tino rangatiratanga in the mandate process. The Crown has told us that it played only a limited role up to recognition of the mandate, and that its decision to recognise the Ngātiwai Trust Board was reasonable because the trust board has the support of Ngātiwai and is an appropriate body to represent Ngātiwai in settlement negotiations. In the next two chapters we assess the extent to which the Crown actively protected the tino rangatiratanga of hapū in the mandating process.
We begin by discussing the claimant definition and the research used to determine which hapū would be included in the Deed of Mandate. We then examine the structure of the Ngātiwai Trust Board to understand whether it is fit for the purpose of negotiating a Treaty settlement by being representative and accountable to hapū. As foreshadowed by Judge Savage in his directions concerning the central issue in this inquiry,1 we will consider whether hapū consented to their inclusion in the mandate. We give particular attention to the hapū that are ‘shared’ with other iwi. Finally, we look at whether the process set out in the Deed of Mandate to withdraw support is workable for hapū.
The claimant definition crucially defines the group whose claims will be settled through negotiation between the mandated entity and the Crown. As the claimant definition describes who has conferred the mandate, it also defines who can withdraw it.
For the purpose of achieving a comprehensive settlement of their remaining historical claims, Ngātiwai are defined as the individual members of Ngātiwai who are descended from the identified tūpuna. According to section 12 of the Deed of Mandate, 12 hapū are ‘covered’ by the mandate.2 However, the intent of the mandate is to settle the claims of these hapū only so far as they relate to individuals who whakapapa to the identified tūpuna. It is these individual members of Ngātiwai who are said to have conferred a mandate on the Ngātiwai Trust Board through their votes.
The inherent difficulties of reconciling this group with the hapū who are named in the mandate are evident to us in two ways. The first is that eight of the 12 hapū listed in the Deed of Mandate are described as ‘shared’, because they are included in the claimant definitions of other groups with which the Crown is settling. The second is the number of versions of the deed produced with differing lists of hapū (see the table above). Six versions had been produced by 2013. A seventh version, produced in 2014, was amended in 2015 and again in May 2016.3
|Mandate strategy, July 2013||Deed of Mandate at July 2014||Deed of Mandate as amended May 2016|
|Te Uri o Hikihiki||Te Uri o Hikihiki||Te Uri o Hikihiki|
|Te Āki Tai||Te Āki Tai||Te Āki Tai|
|Te Kainga Kurī||Te Kainga Kurī||Te Kainga Kurī|
|Te Whānau ā Rangiwhakaahu||Te Whānau ā Rangiwhakaahu||Te Whānau ā Rangiwhakaahu|
|Te Whānau Whero-mata-māmoe||Te Whānau Whero-mata-māmoe*||Te Whānau Whero-mata-māmoe*|
|Ngāti Toki-ki-te-moana||Ngāti Toki-ki-te-moana*||Ngāti Toki-ki-te-moana*|
|Ngāti Tautahi||Ngāti Tautahi*||Ngāti Tautahi*|
|Ngāti Takapari||Ngāti Takapari||Ngāti Takapari*|
|Ngāti Kororā||Ngāti Kororā*
|Te Kapotai||Te Kapotai*|
|* The Deed of Mandate describes these as ‘shared’ or ‘related’ hapū because they are included in the claimant definitions of other large natural groups.|
Hapū in the Ngātiwai Trust Board Deed of Mandate, 2013–161
We heard differing accounts of whether the hapū listed in the Deed of Mandate are all Ngātiwai by descent. Of the hapū claimants before us, Te Waiariki, Ngāti Kororā, and Ngāti Takapari contest that they are Ngātiwai at all; Patuharakeke agree that they have relationships with Ngātiwai through intermarriage, but deny that whanaungatanga so created makes them member-hapū of Ngātiwai. Te Whakapiko, who are listed in section 11 of the Deed of Mandate as a ‘historic’ hapū (and whose claim is included in the mandate), say that they are Ngāti Manaia, and not Ngātiwai.
As noted in chapter 2, claimants submitted that the Crown’s preference for direct negotiations has hampered their ability to carry out research or sufficiently monitor the research that was available. Nor, the claimants said, did the Crown take steps to ensure that the issue of which hapū should be included was settled prior to the mandate being sought. The hapū included in the mandate have changed several times since the mandate strategy was first advertised, and even since the mandate was confirmed, adding uncertainty about which claims are included. The trust board told us that the claimant definition would need to be further refined during settlement negotiations. We were also told by the trust board that they had no real choice in the claims that were included in the mandate, and that officials had instructed them that it was Crown policy that any claims that fell within the claimant definition had to be included whether claimants agreed or not.
The Crown’s position is that it was for the trust board to determine which hapū should be included in the claimant definition; it accepted that the trust board had a reasonable basis for its views. As we set out in more detail in chapter 5, we do not accept that the Crown had such an arms-length involvement.
The trust board has taken an extremely broad and inclusive approach: if an ancestor of Ngātiwai married an ancestor of, say, Ngāpuhi, the resulting descendants are claimed for Ngātiwai and its mandate as well as for Ngāpuhi. Any Ngātiwai whakapapa at all, in the board’s opinion, contributes to a fixed, additional identity for the hapū it claims. This is so even if ‘shared’: identity and customary rights transfer to Ngātiwai. But we understand that rights and identities derive primarily from ancestors (take tūpuna) rather than spouses. As Ngātiwai Trust Board deputy chair Kristan MacDonald said, the children of peacemaking marriages could derive their identity from not just one tupuna but two.4 But the extent to which Ngātiwai was able to claim customary rights and identity by such means was questioned by claimant Michael Beazley.5 It seems to us that more research was needed into the nature and circumstances of the various marriages in Ngātiwai traditions to support the trust board’s account. However, the issue for us is not which hapū are part of Ngātiwai and which are not, but whether the Crown took reasonable steps to act practically and flexibly in applying its large natural groups policy according to the tikanga and rangatiratanga of the hapū affected.
Most of the hapū who were included in one version or another of the Deed of Mandate or mandate strategy and that include members who now deny they are Ngātiwai are those hapū ‘shared’ between large natural groups.6 In the various iterations of the mandate strategy and the Deed of Mandate itself, the lists of active and historical hapū were constantly amended. At one stage, in version 6 of the strategy, there were 44 ‘historical’ groups and 13 ‘Present-Day Ngātiwai Hapū’. Ngare Raumati, most recently included as an active hapū in the Deed of Mandate, were listed among the historic groups in version 6. In some earlier lists Ngāti Kuta, Patukeha, and Te Kapotai were included; in later lists the first two were removed and replaced with Ngare Raumati. Te Waiariki was added. Ngāti Pare were eventually removed altogether, as were Te Kapotai.7
It appears to us that in trying to meet the Crown’s comprehensive settlement policy of all Ngātiwai claims the trust board was put in a very difficult situation. But the issue is whether the Crown should reasonably have left it for the trust board to make those decisions about the inclusion of hapū within the large natural group, without assuring itself that the decisions were being made in a way that protected the tikanga and rangatiratanga of the affected hapū. The number of changes made to hapū in the Deed of Mandate indicates a degree of contestability, but hapū were not being asked to consent to their inclusion or even consulted. This was an internal trust board process in consultation with the Crown that did not take into account or protect the tikanga and rangatiratanga of the hapū affected.
We have noted above that not all members of those hapū included in the ‘final’ version accepted that they were Ngātiwai, and not all claimants or witnesses always agreed with that viewpoint either, as we discuss below. In the past, for various purposes at least, some of those hapū who now deny they are Ngātiwai have accepted this identity. Te Waiariki, Ngāti Taka (Takapari), and Te Patu Horakeke (Patuharakeke), were three of the 18 hapū who were part of the trust created for the ‘Ngātiwai Tribe’ to administer Whangaroa Ngaiotonga 4A3A. Trustees appointed in 1948 included Ngaronoa Māhanga for Te Waiariki, Paratene Te Manu Werengitana for Ngāti Taka, and Paraire Pirihi for Te Patu Horakeke.8 This raises the question of whether complaints by hapū that they have been wrongly identified as Ngātiwai can be said to be a serious misapplication of tikanga when the issue of identity has been fluid in earlier times.
But we reiterate that the position of individuals who can pick and choose among their multiple hapū identities according to the occasion (as explained in chapter 3) cannot be compared to the position of the hapū with multiple whakapapa connections. Hapū can redefine their identity by earlier or later ancestors, or give themselves names which commemorate events rather than ancestors (such as Patuharakeke or Te Kapotai). It is the hapū that declares and defines its wider identity. The hapū is the autonomous group with tino rangatiratanga over its lands and resources, not the individual, as has been held by the Waitangi Tribunal since as far back as the Ōrākei inquiry.9
Taking Te Waiariki as an example (two of whose associated hapū are Ngāti Kororā and Ngāti Takapari), there was a difference of opinion concerning their wider iwi associations. Ruiha Collier agreed with many other claimants that Te Waiariki are not a hapū of Ngātiwai, but she said that Te Waiariki are not an iwi in their own right: they are a hapū of Ngāpuhi.10 Ngaire Hēnare, on the other hand, maintained that Te Waiariki ‘is a distinct tribe which occup[ies] the coastal region from Tutukaka to Te Whara. Their rohe also includes the lands through which four rivers flow from Whangarei to the sea, Ngunguru, Horahora, Pataua and Taiharuru.’ She traced their origins to Ngāi Tāhuhu and to two rangatira of Hokianga, Kareariki and Uenuku.11
As another example, Patuharakeke are a hapū which the Ngātiwai Trust Board described as having affiliations to Ngāpuhi, Ngāti Whātua, Ngāi Tāhuhu, and Ngātiwai. It said that, most importantly, ‘Patuharakeke share Ngāti Manaia and Ngāi Tāhuhu descent with the other hapū of Ngāti Wai’ (emphasis added).12 However, Patuharakeke themselves asserted a much wider identity: they claim to be derived from Ngāti Manaia, Ngāi Tāhuhu, Ngāti Wharepaia, Ngāti Ruangāio (from Ngāi Tāhuhu and Ngāpuhi), Te Parawhau, and Ngāti Tū. They are a composite hapū from most major iwi in the north, including lines of descent from all those above including Te Uri o Hau, Ngāti Rehua, Ngare Raumati, Te Kawerau a Maki, Ngāti Manuhiri, and a wide range of others.13
But not all Patuharakeke whānau have all of these iwi and hapū in their background – especially, in terms of this kaupapa, descent from Ngāti Manaia and Ngātiwai. It depends on their personal whakapapa. As Jared Pitman put it, ‘not all Patuharakeke families will consider themselves Ngatiwai but all Patuharakeke families consider themselves Patuharakeke’.14
The hapū in section 12 of the Deed of Mandate originally included Te Kapotai, who were removed by the trust board in May 2016.15 Up until then, the trust board was insisting that Te Kapotai shared Ngāi Tāhuhu, Ngāti Manaia, and Ngāi Tamatea descent ‘with the other hapū of Ngātiwai’.16 The fact that the board now concedes that Te Kapotai are not Ngātiwai underlines the fact that the process of determining the claimant definition was not satisfactory. Had Te Kapotai been consulted earlier, its late withdrawal and the resulting doubt cast on the Deed of Mandate could have been avoided.
The section 11 hapū include ‘Te Uri Whakapiko or Te Whakapiko’.17 It is unclear whether this is one, or two separate groups. Members of the latter are claimants in this urgent inquiry. They deny they are Ngātiwai, but their Wai 156 claim is among those included in the Deed of Mandate. Mr MacDonald acknowledged that the trust board had been confused about the status and identity of Te Whakapiko. Nevertheless, ‘Ngāti Manaia/Te Uri Whakapiko’ were included in a list of active hapū in an early draft of the mandate strategy.18
The confusion surrounding the identity of Te Whakapiko illustrates how the Crown has effectively required the trust board to stretch and redefine tikanga about hapū identity to fit its policy requirements for settlement. While a degree of this is acceptable and inevitable as part of mandating and appears to have been accepted as such by many within Ngātiwai, the key issue for us is whether this was sufficiently serious to breach Treaty standards and thresholds that the Crown should have been well aware of. In particular, we note that there was no provision or requirement by the Crown for the trust board to consult with hapū about their inclusion in the mandate. In the case of Te Whakapiko there is no evidence that the trust board had direct contact with the persons concerned about the inclusion of the group as a historic hapū. There is no evidence that the Crown made any attempt to inform itself of the tikanga of the affected hapū, or of their processes for group decision-making, which is a threshold standard for the principle of active protection as expressed in the minimum standards for mandating set out by the Ngāpuhi Mandate Tribunal.
It is both desirable and necessary that robust research is completed on the claimant definition before a mandate is sought. This is one means by which the Crown can reasonably satisfy itself that hapū have been correctly included in a mandate and that they are settling with the right groups, having regard to the specific circumstances of the claimant community, so as to protect their whanaungatanga. Several claimants alleged that the research carried out by the trust board and relied upon by the Crown was insufficient.19 Mr MacDonald confirmed to us under cross-examination that it was not the proper role of the trust board to define hapū, whether they are or are not hapū in communities defined by whakapapa.20 But he went on to describe the board’s own work on claimant definition and whakapapa, and outlined what input there was from historians, wānanga whakapapa (research sessions to discuss and study genealogies), kaumātua (elders), and board trustees. He stated that the research the board was relying on in developing the Ngātiwai claimant definition had been initiated 25 to 30 years ago. It had been carried out by Witi McMath concerning Aotea, Hauturu, and their off-shore islands.21 The board, in consultation with kaumātua and ‘historians’, had also compiled further work between 1987 and 1998, later collated for purposes related to the fisheries settlement.22 Further research was collated about 2008 from previous work. We note this later work was carried out at a time when the board was hoping to settle its claims through the Tāmaki Makaurau Collective, following through with Ngāti Rehua and Ngāti Manuhiri.23 Witi McMath laid much emphasis on Ngāti Rehua as Ngāti Wai ki Aotea, and on Ngāti Manuhiri as Te Kawerau and others, but had little material about the northern hapū.24
The whakapapa research in the period from 1997 to 1998 was mainly the work of one historian, Graeme Murdoch. When Mr MacDonald was asked by counsel which other historians were consulted after 1998, he said again, ‘mainly Graeme Murdoch.’ Asked whether any consultation regarding the whakapapa research had taken place with the hapū listed in the Deed of Mandate, he replied ‘not all hapū are organised to consult with’.25
Concerning the assistance of wānanga whakapapa, a number of such hui were planned but did not eventuate. Questioned by the presiding officer, Mr MacDonald agreed that one such wānanga had been held, but that those attending had forbidden the use of the resulting information for the claimant definition.26 He claimed that at that stage the Ngātiwai Trust Board already had a good base of information from research for the fisheries settlement, and at hui would put up the board’s whakapapa charts to assist people who knew little about their whakapapa. The purpose of such hui was said to be educative rather than refining the claimant definition. The trust board had since done further research specifically to support ‘our Wai claim 244 for the purposes of settling Ngātiwai iwi Treaty settlements’, but it would not be made available to the claimant community until after research structures had been set up as part of a future organisation as promised in the Deed of Mandate. Mr MacDonald said the reason for this was that ‘we don’t know what the claimant community necessarily is. … We don’t know if we publicly release our research whose hands it falls into and for what purpose so that’s why we’ve controlled it.’27
Mr MacDonald also discussed the input of kaumātua to the board’s research for the claimant definition. Cross-examined on research, he was asked which kaumātua group the board consulted. He replied that there were various kaumātua groups but that it was ‘kaumātua in and around the board’ who were consulted. Other kaumātua were not consulted; they ‘were actively working against the board’ whereas the board was ‘working with those kaumātua that wanted to work with us around the claimant definition’. Counsel suggested this meant that the board only talked to the kaumātua who agreed with what the board was doing. Mr MacDonald denied this and said the ‘majority of kaumātua that were involved in the claimant definition wanted to be involved’ in its definition. Later, he complained that the kāhui kaumātua, in his opinion, became ‘very political rather than a role around, you know, providing advice, direction and support, almost as though the kaumātua were a claimant group’. But he was happy that ‘today we’ve got a very stable kaumātua group, most of them are here supporting and tautoko’ing the Board’.28
In our view this account of the research done on whakapapa, hapū, and the claimant definition shows significant deficiencies. We heard that the trust board, and especially its Treaty Claims Committee (TCC), relied on its own work, did not engage further historians after the work of Witi McMath and Graeme Murdoch in the pre-mandate period, and held no wānanga whakapapa until April 2014, after the mandate strategy had been approved by OTS and voting had taken place (in August and September 2013). Only those kaumātua who were in agreement with the board were consulted.
On this basis it is difficult to understand how the Crown could reasonably have satisfied itself that the research provided sufficient information about the circumstances of the claimant community, in particular whether hapū had been correctly included in the mandate, as required in the minimum standards set out by the Ngāpuhi Mandate Tribunal. The question of who is responsible for these deficiencies is examined in the next chapter.
Although Judge Savage excluded the internal processes of the trust board as a central issue in this inquiry, he also said that these may provide reasons why hapū ‘have not and will not’ give the trust board their mandate. With this in mind we now turn to consider whether the structure of the trust board and its advisory bodies is sufficiently representative and accountable to the hapū who are included in the Deed of Mandate.
The primary purpose for which the trust is established is set out in section 3.1 of the trust deed:
to receive, hold, manage and administer the Trust Fund for every Charitable Purpose benefiting Ngatiwai … and for every such Charitable Purpose benefiting Maori who are not Members of Ngatiwai and members of the community generally.29
Counsel for the trust board submitted that the conduct of Treaty settlement negotiations ‘falls squarely within’ an ancillary purpose set out in section 3.2(a), which is to:
promote the cultural, spiritual, educational, health and economic development and advancement of Ngatiwai and its Members including those Members of Ngatiwai residing in the rohe of other Iwi and retain and enhance mana whenua, mana moana, and intellectual property rights between Rangi-nui and Papatuanuku.30
The trust board maintains a register of members (although to be considered a member of Ngātiwai for the purposes set out above it is not necessary to be a registered member). Trustees may require applicants to provide evidence verifying their affiliation to Ngātiwai ‘through descent from a primary ancestor of Ngatiwai’. Trustees may decline to register or remove from the register anyone who, in their view, has provided inaccurate or incomplete information ‘such that in either case the person concerned does not meet the qualifications required by this Deed for entry of that person in the Members’ Register’. Trustees ‘may’ consult ‘the Roopu Kaumatua Kuia’ on matters of registration and to ‘determine who is the primary ancestor, or are primary ancestors, of Ngatiwai’.31 In cases of dispute, however, the trustees must seek a recommendation from
a Roopu Kaumatua Kuia, appointed by the Trustees … and comprising three Ngatiwai kaumatua who the Trustees consider are mature persons or elders knowledgeable in Ngatiwai whakapapa and recognised as such by members of Ngatiwai.32
Although trustees are elected on a marae basis, section 6 of the trust deed makes explicit where trustees owe their obligations: ‘all Trustees represent all the Members of Ngatiwai irrespective of where those Members reside’.33 Mr MacDonald told us:
It is important to note that, once elected, all Trustees are required to represent all Members of Ngātiwai, irrespective of where those Members reside (Trust Deed, Schedule 1, para 6). In other words, while Trustees understandably have a role in articulating and advocating for the interests of their marae, they must ultimately act in the best interests of Ngātiwai as a whole.34
Eight trustees constitute a quorum for a meeting of the board, which must meet at least six times a year. Decisions may be made by simple majority, although consensus is preferred.35 Trustees may invite anyone they decide ‘will assist with their deliberations’. Section 4.6 gives trustees ‘absolute management and entire control’ of the trust fund and section 4.5 sets out the powers of trustees to achieve the trust purposes.36
Trustees are elected by the adult registered members of Ngātiwai, who choose, for the purpose of voting, to affiliate to one of 14 Ngātiwai marae.37 Marae elections are convened by the trust, on behalf of marae, to elect trustees. Any adult member of Ngātiwai may put themselves forward for election to a three-year term as trustee, and each marae election chooses one person to hold office on the board. Nominees must be registered members of Ngātiwai, and their nomination must be endorsed by the chairperson of the marae on whose behalf they intend to stand.38
Schedule 1 of the trust deed sets out the voting procedure to elect trustees. Nominations may only be made by adult registered members affiliated to the marae where the election is being held, and must be received at least 25 working days before the election. Where only one valid nomination is received, that person will be deemed elected from the date of the general meeting ‘constituted, inter alia, for the purpose of Marae Election’. Each marae notifies the trust of the election result, and new trustees are announced at the trust’s annual general meeting.39
There is wide agreement that the current trust deed has problems. Efforts to improve the trust deed have been going on for some years; longer, in fact, than the mandating process. A review of the trust deed was discussed at the board’s Annual General Meetings in 2011 and 2012. Proposed changes to the nomination process and the board’s ‘authority to prosecute claims’ – which we take to mean claims filed in the Waitangi Tribunal – were discussed at length. The meeting expressed a ‘strong feeling’ that consultation had been insufficient and the chair announced a hui-ā-iwi would be held to discuss proposed changes to the trust deed in depth.40
In September 2014, the trust board commissioned a review of submissions on proposed changes to the deed. The report begins: ‘NTB’s current Trust Deed has an array of problems. There is no question that it requires amendment.’41 A large number of issues were raised by submitters.
Early in 2015, the board developed and implemented a communication and engagement plan in response to submissions made in 2014 that had opposed the trust board mandate. Although the review of the trust deed and the mandating process were largely carried out separately, objective 3 of the plan was to hold a special general meeting on 28 February 2015 to review the board’s trust deed. The meeting took place as scheduled. No resolutions were put to the meeting by the board, in response to ‘consistent feedback from Ngātiwai members’ that more time was needed to address the issues. The meeting agreed ‘on a process to generate a more structured discussion about the Trust Deed’. This entailed forming a focus group to carry out a review, aided by an independent facilitator, followed by board members reporting back to their marae. This process, we understand, is yet to conclude.42
The Crown have told us that hapū are adequately represented within the Deed of Mandate by the trust board through marae, a system of representation set up to receive and distribute fisheries settlement allocations. Claimants allege the Crown’s approval of the trust board structure is inappropriate because it was not structured in a way that enabled the Crown to properly meet its Treaty obligations to hapū relationships in establishing and recognising a mandate. Fourteen marae are listed in the trust deed and Deed of Mandate. Are they all Ngātiwai marae? Does each marae represent a hapū? It seems to us that there are as many views on the role of the marae named in the Deed of Mandate as there are concerning hapū.
Marae are a meeting and gathering place for the activities of the marae community. As Jared Pitman said concerning his marae:
when we stand and look to the east our whakapapa is lined up right before our eyes, our identity is visible in a glance. Our marae complex is a hive of activity. Our Kohanga Reo, wharekai and wharehui are constantly busy with the mahi of the day. The facilities themselves cater for a wide range of activity. The place lives and breathes. Our wharehui is in constant use … for manaaki manuhiri, tangihanga, kawe mate and waananga. The marae is used to host marriages … and memorial services on ANZAC day … We care for the place and it cares for us.43
Marae committees, can and do make decisions on behalf of the marae community, but they are usually limited to the everyday running of the marae including such matters as the uses of the marae and its buildings, and the tikanga to be observed. But marae committees cannot make decisions for hapū and represent hapū authority. Pereri Māhanga told us:
The ‘marae’ is being put up to effectively supersede Rangatira and Hapu, and the inherent authorities that go with them, which is not correct. A marae is really only a gathering place in modern times. It should not be assumed that it is ‘a’ or ‘the’ representative of the political will of the Hapu. A ‘place’ should not become more important than its people. If that were true then Te Tiriti O Waitangi would say so – but it does not. It speaks to Rangatira me Nga Hapu.44
Counsel for Patuharakeke submitted that the purpose of the marae committee representative on the Ngātiwai Trust Board was ‘to report back to the marae committee on matters pertinent to Takahiwai Marae, not as a hapū representative for the purpose of Treaty settlements’.45
The trust board asserted that the hapū it claims to represent in the Deed of Mandate have 14 marae (including two on Aotea for Ngāti Rehua-Ngātiwai- ki Aotea). They are listed in the trust deed of the board, and in all the iterations of the mandate strategy and the Deed of Mandate. Of the 12 marae on the mainland, Mr MacDonald told us that Ngare Raumati relate to Ngāiotonga and Tūparehuia, Te Uri o Hikihiki relate to six marae including those two and Mōkau, Ngāti Tautahi relate to Mōkau and Ngāiotonga Marae, and so on. Most marae had at least two, and sometimes up to six hapū among its community.46 He considered that six out of the 12 hapū are ‘almost totally localised to their marae.’47 That is: Te Whānau Whero (at Whananāki, although Te Āki Tai, Ngāti Toki, Ngāti Taka, and Ngāti Rehua also have whānau there), Te Whānau a Rangiwhakaahu (Matapōuri, although Te Āki Tai, Ngāti Toki, and Ngāti Taka have whānau there), Ngāti Takapari and Te Waiariki (at Ngunguru), Ngāti Kororā (at Pātaua), and Te Patuharakeke (at Takahīwai). According to Mr MacDonald, the two latter hapū are the only groups to occupy single marae.48 Mr MacDonald told us that, due to the close correlation between hapū affiliation and marae membership,
the argument that the Board’s marae-based elections structure means that it is not representative of hapū is not well-founded, because the evidence shows that the communities of Ngātiwai people the Board’s constitution describes as ‘marae’ very largely overlap with the communities that can otherwise be described as hapū.49
We note that his evidence on this matter is based on analysis carried out in June and July 2016, and so could not have informed the Crown’s decision to recognise the mandate. We also note the evidence from Te Kapotai that their inclusion in the mandate was outside the marae-based structure because no Te Kapotai marae were included. Conversely, Ngāti Rehua and Ngāti Manuhiri marae were included even while those two hapū are excluded from the mandate. In any case, the trust deed does not allow for one trustee per hapū, responsible for representing hapū as well as marae, and the 14 marae trustees cannot be considered as ‘proxies’ for hapū, as Mr MacDonald claimed the board has in effect treated them. We do not accept that the marae act as proxy for hapū in matters relating to mandate for Treaty settlement.50 While in many cases marae and hapū communities significantly overlap, there is simply no evidence to suggest that marae committees or board trustees elected by the marae have any authority to make decisions or speak for hapū on matters involving settlement of Treaty claims. And as discussed further below, the trust deed makes it clear that the trustees’ duty is to make decisions on behalf of all Ngātiwai beneficiaries.51
Some claimants dispute that all 14 marae are Ngātiwai marae. Pereri Māhanga of Te Waiariki referred us to the second schedule of the trust deed which listed the ‘Recognised Marae of Ngātiwai’. Included among them were Ngunguru and Pātaua Marae as if these two were marae of Ngātiwai. In fact, he said, both of these are marae reservations rather than marae.52 He gave evidence concerning the various blocks in the Ngunguru district to show that his ancestors and elders, including the various people giving evidence in the Native Land Court, claimed the land through Te Waiariki or Ngāti Hau, but never through Ngātiwai.53 Mr Māhanga explained that the position of Te Waiariki is that these two marae reservations ‘in terms of land, and in terms of rohe, belong to and are of Te Waiariki. They are not of Ngatiwai. Ngatiwai people may use the facilities at Ngunguru marae, but that in my view does not change the fundamental fact that the site itself, is of Te Waiariki’.54
On the other hand, Sharyn Māhanga, of Te Waiariki, Ngāti Kororā, and Ngātiwai, made no defined hapū distinction between those using these two marae communities. She declared that she was Te Waiariki and Ngātiwai. She stated that ‘not all Te Waiariki whānau consider themselves to be Ngātiwai, but my whānau does.’ People including Ngātiwai were hosted at Pātaua, even though there was no marae building except an unfinished ablution block. (They used marquees.) Ms Māhanga said she belongs to Pātaua Marae. She was the first trustee on the Ngātiwai Trust Board for Pātaua Marae in the 1980s. There have been members of her whānau on all the iterations of the trust board since the 1940s.55
Additional advisory bodies, set out in the Deed of Mandate, are said to be designed to support the trust board in negotiations. Our interest is in whether they are capable of adequately mitigating the shortcomings of representation that we have identified in the trust deed. The Deed of Mandate describes their relationship with the trust board as to ‘enable and provide’. To the trust board, enabling means ‘to leave the door open for participation’ by those who are willing, while providing means ‘to make tangible arrangements to accommodate participation which is yet to be determined with willing participants’.56
Two new positions are proposed for the Treaty Claims Committee, for individuals with demonstrated skills, experience, and support from among Wai claimants, hapū, or rangatahi. These positions are advisory only. Only the trustee members of this committee, the trust chair, chief executive, and Treaty claims manager can participate in decision-making.57
The mandate distinguishes between reporting and advisory roles. Reporting means being accountable to the trust board. In this sense the accountable bodies are the Treaty Claims Committee and the negotiators. The role of the kaumātua group, the hapū/marae representatives group, and the research group is to provide advice to the trust board and enable the board to ‘feed back’ accurate information to all kaumātua and Ngātiwai members. However, Mr MacDonald told us that the board now recognises a greater role for kaumātua, saying ‘we will not go forward unless our kaumātua are happy and give us their support in terms of direction, tikanga, wisdom and unity. These mechanisms are as powerful as a veto.’58
That said, it is clear to us that these groups are still not accountable to the trust board.59 Nor is the board accountable to them. They are not able to make choices and participate in decision-making. Providing opportunities for hapū, as a particular class of interest to advise on issues of relevance and importance to them, is not the same as providing representation and accountability to those hapū that wish to be so represented.
The trust board has been unable to arrive at agreement on changes to the trust deed, even though the need for change appears to be broadly accepted. Six years of effort to improve the deed have not yet produced results.
Section 6.1(a) of the trust deed provides that a resolution to change the deed must be approved by a majority comprising at least 75 per cent of adult registered members of Ngātiwai who are entitled to vote and cast a valid vote.60 In the assessment of trust board legal advisor Wayne Peters, this was simply imprecise language, and the intent of the deed was always that it relate to those present at an annual general meeting or a special general meeting. Altering the deed to make this clear was one of the changes suggested in the 2014 report.61 Yet, even this more limited interpretation has so far presented a practically insurmountable threshold for change.
Before final adoption by a Special General Meeting, however, any changes to the deed must be approved by Te Ohu Kaimoana.62 This requirement reflects the prescriptive requirements for a mandated iwi organisation under the Fisheries Act 2004. But in the context of a mandated entity to negotiate the settlement of Treaty claims, this is a significant barrier to ensuring Ngātiwai has an entity that is fit for purpose.
The trust board said the difficulty of changing the trust deed was one reason for proceeding to negotiations under the current trust board structure. The trust board acknowledged that, as a charitable trust, it cannot become a post settlement governance entity (PSGE). It suggested discussions should begin at an early stage around the appropriate form for a PSGE, and that, for example, a greater say for hapū could be one of the things the post-settlement entity could include. Although constructive, the suggestion does not resolve the current issue of representation in negotiations with the Crown. The board appears to acknowledge that the post settlement governance entity will need to better represent the complexity of Ngātiwai. But it does not concede that this is also necessary for negotiations. This will reduce the effectiveness of the negotiations process as the vital first step towards a restored relationship with the Crown, and diminish the rangatiratanga of those whose interests are spoken for in the negotiating process, but who are not adequately represented.
The trust board argued it is the only existing institution capable of taking Ngātiwai though negotiations with the Crown. Haydn Edmonds, chair of the Ngātiwai Trust Board, said it was neither sensible nor sustainable to design a whole new entity for negotiation purposes.63 Mr Edmonds strongly advocated for unity, saying it was ‘very distressing’ to the board that the Tribunal might recommend the exclusion of further Ngātiwai hapū from the mandate. This would cause suffering, he said, by subjecting the iwi to ‘another artificial sub-division of our whakapapa and tribal identity’ and because the resulting groups would not ‘have the critical mass necessary to make a settlement viable’.64
We agree these issues are distressing: the present inquiry provides ample evidence. We also agree that the size of the settling group has a large impact on the viability of any settlement. In fact, it was apparent to us at our hearing in Whangārei that there is considerable support for the Ngātiwai Trust Board. But this does not mean that change is not possible or necessary.
We are encouraged by the trust board’s acknowledgement that Patuharakeke, Te Waiariki, and Te Whakapiko ‘have been shown to have genuine issues with respect to the DoM that fall within the terms of the “central theme” of this inquiry’.65 Mr Edmonds also described what he called a positive and constructive meeting with two claimants before our hearing, which explored the idea of a ‘tribal taumata to maintain oversight over Board decisions’.66
The Crown also accepted in closings that it would be ‘theoretically’ possible to restructure the trust board for negotiation purposes, although this would take ‘some time and some money.’67
Further, when OTS met submitters opposed to the mandate in October 2014, Rowan Tautari suggested:
There are two options, either restructure to accommodate hapu within current governance or create to the side an entity which includes representation from trust board. Similar to Tūhoronuku model. Bring the hapu in. Makes sense.68
The Patuharakeke claimants suggested the Crown explore the option of a regional settlement for Whangārei-based hapū based on the Whangārei Terenga Paraoa Assembly, while acknowledging that structure was not currently being pursued.69
4.3.6 Does the trust board provide adequate representation and accountability to provide for the exercise of hapū rangatiratanga?
The negotiation and settlement of historical Treaty claims is a matter of great responsibility and complexity. However, this purpose is not expressly mentioned in the trust deed. Instead, it comes within the definition of incidental purposes set out in clause 3.2(a). This highlights a fundamental issue with the trust deed. The current deed was drafted to ensure the trustees could protect and administer the trust fund; it was not designed to hold a mandate for negotiation and settlement of Ngātiwai’s historical Treaty claims. In our view, the type of structure best suited to each purpose is quite distinct.
The deed is explicit that all trustees represent all the members of Ngātiwai and must act in the best interests of Ngātiwai as a whole. We were also told that a trustee cannot be removed by the marae that elected them; the trustee must resign.70 In negotiating a Treaty settlement, as the evidence presented in this inquiry shows, many different and potentially competing interests must be advocated for and, to the greatest extent practicable, reconciled. The efforts of the trust board to provide some avenue for hapū, whānau, Wai claims, kaumātua, kuia, and rangatahi within the structure of its mandate demonstrate their awareness of this necessity. The trustees are the only group with decision-making power, as the trust deed currently provides. But it is not the role of the trustees to represent these particular constituencies. Although trustees are elected by marae membership, they cannot be said to represent the interests of their particular marae on the trust board, let alone hapū or other interests.
A further requirement imposed by the trust deed is that trustee nominees must be endorsed by marae committee chairs. This is not merely a formality. Hūhana Lyndon sought nomination as a trustee in December 2013, for an election to be held at Tūparehuia Marae. Her nomination was refused by the chairperson of that marae committee, who was herself standing as a candidate in the election.71 That an individual marae committee chair, who may have a conflict of interests, can arbitrarily reject competing nominations does raise questions about the accountability of a structure whose purpose should be to represent all voices and interests in the negotiation of a Treaty settlement.
If no nominations are received for a marae trustee, then ‘further nominations must be called for until the number of nominees is at least equal to the number of vacancies for Trustee for any Marae’.72 This appears to require that a trustee must be appointed for each marae regardless of whether the marae wishes to appoint a trustee, or the level of support an ultimate nominee might have from the marae community. This requirement appears to us to pose a clear problem for a hapū such as Patuharakeke who do not agree that their marae-elected trustee should represent them on Treaty settlement matters.73
The Crown says the trust board operates under a ‘marae-based structure’ and that this in effect provides for hapū to be represented because marae and hapū are, in essence, the same groups of people. This implies that the interests of each marae community are advanced by the representative they elect. As we see it, neither assertion is correct. Marae provide a place from which members of Ngātiwai elect people who will represent Ngātiwai. The distinction is important. If trustees do not represent the particular interests of their marae, they cannot represent their hapū. In this way, the trust deed has the effect of obstructing hapū, and in particular shared hapū, from making decisions and maintaining whanaungatanga relationships when it comes to Treaty negotiations.
In being required to act in the common interests of all, trustees cannot act or advocate on behalf of any particular group. Decision-making by trustees is not a process by which the interests and views of particular groups can be balanced. Counsel for the board was clear on this point:
The Board is not, and has never been, a vehicle for debate and determination of the differing – and potentially competing – interests of hapū, marae or any other groups. Rather, it is a structure premised on the principle of kotahitanga and common interests of all members of Ngātiwai.74
The trust board is a unitary body: there are individual registered members, but authority is centralised within a top-down structure. The result is that the authority of all other entities and structures in the Deed of Mandate is limited to the terms defined by the trust board.
The Ngāpuhi Mandate Tribunal stated the Crown’s Treaty obligation, when making the decision to recognise a mandate to negotiate historical Treaty claims, to ‘recognise that the structure of the mandated entity must allow for hapū interests to be tested and heard’.75 To us, the Crown expressed the view that:
the manner in which a claimant community wishes to organise itself for the purposes of mandating representatives to negotiate a Treaty settlement is a choice for the community itself.76
The crux of the matter is the question of what defines a claimant community, and it is clear to us that the Ngātiwai claimant community includes hapū and whānau, as well as the individual members who had the opportunity to vote. It was incumbent on the Crown to ensure it was dealing with the right group or groups within Ngātiwai, and to appropriately weigh those interests. We have not received any evidence to demonstrate that the Crown took such steps. In our assessment, the trust board was the ‘first cab off the rank’ and the Crown looked no further.
Counsel for Patuharakeke was clear that their opposition to the Deed of Mandate
is not purely on the basis that they seek direct negotiations and nothing less will suffice, but rather that they seek the right settlement and that they are afforded the right to decide what settlement is best for them. [Emphasis in original.]77
According to trust board legal adviser Wayne Peters:
The Board accepts that the marae-based structure of the Board does not necessarily fully reflect the complexities of Ngatiwai members’ society. However, it is the model set down by the current legislative scheme.78
In our inquiry, counsel for the trust board drew our attention to the Waitangi Tribunal’s recognition of a Treaty right for Māori to develop their resources and technologies, submitting that this right ‘must extend to the legal structures and forms through which iwi may choose to operate, and that no one structure or form should therefore be regarded as any more “tika” than another’.79
As the trust board acknowledges, ‘there is no disputing the rangatiratanga of hapū’, although that is only one among several kinds of Ngātiwai rangatiratanga.80 The hapū, whānau, and marae communities of Ngātiwai, their particular and interconnected whakapapa, lands, identities, and histories of interaction with the Crown, and the representation of these matters, are inextricably bound up with the settlement of historical Treaty claims. It is difficult to see how these various interests can be represented in the current structure without being subsumed by what is perceived as the common interest of Ngātiwai. That is why the Pakakohi and Tangahoe Tribunal commended the ‘bottom up’ approach that that was undertaken by Ngāti Ruanui, which brought together marae and hapū at the start of a mandating process to develop a negotiating body.81
Our analysis of the trust deed reveals a structure that is severely constrained in its ability to respond to the requirements of representing, and reporting to, the varied groups that have a stake in the outcome of the negotiations the board intends to enter into. The trust board is also severely constrained in its ability to amend the trust deed to respond to the acknowledged issues with its structure. Despite these significant issues, the trust board has chosen to push ahead in the hope that, upon attaining a settlement, they will be able to work these issues out on the other side.
Many, perhaps most, Ngātiwai are content to allow the trust board to represent them in the negotiation of a settlement. But it is equally clear that some groups included within the Ngātiwai large natural group seek to retain the ability to exercise independently their rights and authority. The structure of the Ngātiwai Trust Board makes inadequate provision for hapū interests to be tested or heard, or for hapū to exercise rangatiratanga according to their tikanga, in relation to Treaty settlement negotiations.
The mandate was presented at hui and voted on between July and October 2013. Votes could be cast at the hui. A significant majority of the 28 per cent of Ngātiwai members who took part voted in favour of giving the Ngātiwai Trust Board a mandate to negotiate a settlement of the historical Treaty claims of the large natural group defined in the deed. This is important to remember. As the Crown told us, similar majorities in other mandate votes have been acceptable to the Crown and to the Tribunal.82
In the Crown’s view, the 82 per cent who voted in favour demonstrated a broad base of support and it was reasonable to rely on the vote as indicating that the hapū of Ngātiwai support the trust board’s mandate.83 We do not accept this conclusion can be drawn because there is simply no information to support such a conclusion. It cannot be assumed that the hapū with which those individuals identify also support the mandate. The voting was by individuals and neither hapū nor marae affiliations were asked for. Thus, the vote has nothing to tell us about the hapū that may support or oppose. We do not know, for example, how many Te Waiariki members voted (or did not), nor whether, overall, they were in support or opposition. Also, by not capturing information about hapū affiliations the vote did not acknowledge the reality of shared allegiances that form the identity of many hapū members.
Nor do we know how members of particular marae voted. Take the example of Ngunguru Marae. Mr MacDonald told us 82 per cent of Te Waiariki members who are also registered beneficiaries of the Ngātiwai Trust Board affiliate to Ngunguru. So, too, do between 92 and 98 per cent of Ngāti Takapari trust board beneficiaries.84 We do not know the size of each hapū group relative to the other, nor how they voted.85 Claimants who say they are Te Waiariki have argued, variously, that they are stand-alone, Ngāpuhi, or Ngātiwai. Because the vote sought the views of individuals only we cannot know how this equated with levels of hapū or even marae support for the mandate.
When the vote was held, the Te Waiariki claimants had only just been informed that their claims were to be included in the mandate.86 They had not participated in developing the mandate strategy that was voted on. Members of another hapū, Te Kapotai, were able to participate in the vote yet were later taken out of the mandate, six months after it was recognised by the Crown. The Crown has argued that neither ‘the constituent whānau’ nor ‘the people’ of Patuharakeke have been asked to give a mandate to the Patuharakeke Trust Board to negotiate a Treaty settlement.87 But neither were they asked, under that affiliation, to support the Ngātiwai mandate. Support was sought from individuals, defined as members of Te Iwi o Ngātiwai. Some are also Patuharakeke, but we know neither how many are Patuharakeke, nor how many Patuharakeke voted in support of the mandate. Mr MacDonald told us about 330 registered members of Ngātiwai are Patuharakeke and affiliate to Takahīwai Marae. In his view, many of them were likely to have voted in favour of the Board’s mandate.88 This statement can be no more than a guess.
Crown counsel submitted that the vote (82 per cent of 28 per cent) was an acceptable level of support and within the range previously accepted by the Crown. By any measure, we consider that the vote was a low return, which serves to demonstrate how low the Crown’s threshold has become in order to progress settlements.
Crown counsel suggested to us that voting on the mandate was important because settlement would extinguish the right to make claims to the Waitangi Tribunal about historical (pre-1992) matters. Speaking about members of Patuharakeke hapū, Crown counsel argued that if hapū members were no longer to be able to make claims about their historical grievances, then ‘every person of Patuharakeke should be given a chance to say who is going to mandate – who is going to represent them in a negotiation’.89 The vote was open to all Ngātiwai members but not to all of Patuharakeke, and so it did not offer that opportunity. Only those individuals whose whakapapa included the named Ngātiwai tūpuna were able to participate.
We ask: why were hapū included in the Deed of Mandate if they had no significance to the mandating process? None of the hapū listed in the Deed of Mandate have ever been formally asked if they consent to their inclusion. Yet, the hapū who have opposed their inclusion from the outset of the mandate process have been consistent in their opposition, right up to and including seeking an urgent hearing of their claims. During the mandate process, the only opportunity for hapū to express their views to the Crown was by making submissions.
Based on the support shown by the vote, the trust board formally submitted its Deed of Mandate to OTS in July 2014. OTS then sought public submissions. In terms of gauging levels of support and opposition, this is a very different process to seeking submissions only from Ngātiwai members or trust board members. The Crown told us it was intended to allow all those with concerns to raise them.90 Of 269 submissions, 144 opposed the mandate and 125 (including late submissions) were in support. We discuss the submissions process further in chapter 5; here, we compare the vote and the submissions for what it can tell us about consent.
The Crown told us that the submissions ‘tended to confirm that there remained a level of opposition as was demonstrated through the mandate vote’, but ‘did not demonstrate any discernable change in the overall attitude of Ngātiwai members’ to the mandate.91
But at the time the Crown had a high level of concern about the extent of opposition shown by the submissions. Officials described the number of submissions as unprecedented for an iwi of the size of Ngātiwai and were concerned that the threshold for withdrawal from the mandate might be triggered.92 From this point, the mandate stalled as the Crown consulted with the trust board about how to address issues that had been raised.
While we acknowledge that the submissions process was designed to gather feedback and not demonstrate consent, on the question of hapū support we think the submissions were more informed and informative than the vote, for the following reasons.
First, the submissions process provided the only opportunity for hapū to engage with the Crown and state their support or opposition to the mandate and their reasons. The submissions showed there was significant opposition from three hapū groups: Patuharakeke, Te Kapotai, and Te Waiariki, Ngāti Kororā, and Ngāti Takapari. As already noted, hapū played no role in the vote.
Secondly, submitters were able to consider the changes made to the mandate between the version that was voted on and that submitted to the Crown, some of which were materially significant to the question of hapū consent.
Thirdly, while only adult members of Ngātiwai could vote, the submissions process had no restrictions. The Crown noted that a number of submissions were received by people outside Ngātiwai who had overlapping interests with Ngātiwai.93 Submissions provided the only opportunity up to that point for those with concerns about the claimant definition, and the extent to which hapū and other groups were partially included in the mandate, to voice their opposition or consent. The question of who is or is not Ngātiwai has been fundamental in this inquiry. Given the lack of clarity as to claimant definition at the time the vote on the mandate strategy was held, we consider it especially important that submissions were sought as widely as possible.
We have concluded that the vote cannot tell us whether the hapū named in the Deed of Mandate support or oppose the mandate of the Ngātiwai Trust Board. However, in the Crown’s view the question of ‘whether the hapū of Ngātiwai oppose (or do not support) the mandate’ is key to the inquiry.94
The Crown argued that none of the claimants in the inquiry had succeeded in demonstrating that any hapū of Ngātiwai opposed the trust board’s mandate.95 We now address this question by looking, first, at the claimants who say they speak for hapū, and then at the claimants who do not claim to represent hapū, but who nevertheless oppose the mandate.
Two claims in the inquiry are made on behalf of particular hapū: the Patuharakeke claim (Wai 745 and 1308), and the Te Waiariki, Ngāti Kororā, and Ngāti Takapari claim (Wai 2549). The Te Kapotai claimants (Wai 2548), who participated as an interested party, also say they speak on behalf of their hapū.
The Patuharakeke claim was brought on behalf of the Patuharakeke Trust Board, but the Crown says it is ‘unaware of evidence’ that Patuharakeke opposes the Ngātiwai Trust Board mandate, drawing a distinction between the hapū Patuharakeke and the Patuharakeke Te Iwi Trust Board. The Crown characterises the Patuharakeke board as ‘purporting’ to represent Patuharakeke, saying no evidence was provided that that board had asked ‘the constituent whānau of Patuharakeke’ whether they support or oppose the mandate of the Ngātiwai Trust Board. The Patuharakeke board ‘cannot and do not point to any hui or any other mechanism whereby they were given a mandate from the people of Patuharakeke’ to oppose the Ngātiwai Trust Board mandate.96
According to the original Wai 745 claim made on behalf of the descendants of Te Ika Nui Te Pirihi of Patuharakeke, the claimants were ‘mandated to submit our claim in the name of our tupuna, at a Hui a Iwi and in the presence of our Kaumatua and Kuia’ on 13 June 1997.97 As amended in May 2014, the claim is made on behalf of the Patuharakeke Te Iwi Trust Board.98 At this time, Patuharakeke sought an urgent hearing into a planned sale of State-owned enterprise land at Ruakākā.99 The Ngātiwai and Patuharakeke boards appear to have agreed to work together on this matter, with Patuharakeke taking the lead as mana whenua.100 In briefing notes from March 2015, OTS officials stated that Patuharakeke Trust Board ‘represents Patuharakeke in matters pertaining to mana whenua, mana moana, and mana tangata and environment and resource management’.101
Grant Pirihi was formerly the Ngātiwai Trust Board member elected from Takahīwai marae, the marae of Patuharakeke. Mr Pirihi told us he is a member of Patuharakeke hapū ‘born and raised at Takahiwai’ and ‘as a Pirihi with whakapapa to Ngatiwai, I also hold strong Ngatiwai descent and links’. He continued:
To my knowledge and understanding Patuharakeke Te Iwi Trust Board (PTB) hold responsibility for our Waitangi Tribunal Claims and have been charged with representing our interests on behalf of Patuharakeke.102
We acknowledge the evidence of Rorina Rata, who stated the preference of her Patuharakeke whānau to be ‘united under the banner of Ngātiwai’, but note that she claims to speak for her whānau, not the hapū. We consider there was sufficient evidence of the standing of the Patuharakeke Trust Board to represent Patuharakeke and saw no evidence to cast doubt on that standing to represent the hapū in advancing their claims.103
The Wai 2549 claim was brought on behalf of the Te Waiariki, Ngāti Kororā, Ngāti Taka Pari Hapū Iwi Trust Board. The Crown also does not accept that this trust board ‘has authority to represent those three hapū for the purposes of opposing’ the Ngātiwai Trust Board mandate.104
We consider that – despite the range of hapū identities involved – a similar conclusion as that regarding Patuharakeke can be reached for those who have appeared before us representing the hapū collective Te Waiariki, Ngāti Kororā, and Ngāti Takapari. Speaking for the Te Waiariki, Ngāti Kororā, Ngāti Taka Pari Hapū Iwi Trust Board, Pereri Māhanga told us he was given authority at a hui-ā-hapū, as chair of the hapū trust, to advance their historical Treaty claims.105 He told us that hui-ā-hapū are the ‘cornerstone’ of hapū decision-making and action:
Every major decision is brought to a hapū hui to inform, debate and decide. And out of that decision it is usually the case that certain persons will be given the authority to represent the view of our hapū.106
For the Crown to question his authority, Mr Māhanga said, is to ‘challenge the validity of our Hapu hui and therefore the validity of our own tikanga in action’.107
However, the position of this hapū group is complex. The Wai 2549 and Wai 2550 claimants each include named claimants for the Wai 620 historical claim. Both groups deny that they are Ngātiwai. The chief difference appears to be that the Wai 2550 claimants say Te Waiariki and Ngāti Kororā are hapū of Ngāpuhi. Indeed, Ruiha Collier told us that links between Ngāti Takapari and Ngātiwai were the reason that hapū was not originally included in the Wai 620 claim: ‘Te Waiariki Korora are descendants of Ngapuhi Arikitanga who defend nga uri o Pona Harakeke. Ngati Taka Ngatiwai could therefore never inherit mana whenua kaitiakitanga.’108
Although Mrs Collier disputed the capacity of the Te Waiariki, Ngāti Kororā, Ngāti Taka Pari Hapū Iwi Trust Board to represent her hapū, she did not claim to speak for the hapū.109 She represented her whānau, saying: ‘The tikanga is that the whanau uri form the hapu, and all interests are represented by elected whanau.’110
In support of the Ngātiwai Trust Board, Paratene Te Manu Wellington told us his whānau ‘has always been deeply entrenched in Ngāti Takapari’. His father was the first Ngāti Takapari trustee on the 1945 Whangaruru Trust Board, the forerunner of today’s Ngātiwai Trust Board. Although acknowledging links to Ngāpuhi and Ngāti Hine, Mr Wellington emphasised the close bonds among Te Waiariki and Ngāti Takapari at Ngunguru, Horahora, and Pātaua: ‘In the end we are all Ngātiwai – we’re all one – and we’re stronger together.’111
We also acknowledge the evidence of Keatley Hopkins, who is a trustee of Ngunguru marae. Mr Hopkins spoke on behalf of his whānau and in support of the Wai 2544 claimants. He said ‘when I am at home in Ngunguru, I am Ngati Takapari and Te Waiariki’. But he went on to say: ‘The people of Ngunguru marae have never met to say we support the [Ngātiwai Trust Board] in the settlement process. Our hapu should have the ability to do that.’112
These three hapū do not present a unified stance in the way that Patuharakeke or Te Kapotai do. This is partly due, no doubt, to the fact that there are distinct hapū identities involved. We accept that the evidence indicates that Mr Māhanga has the support of a significant portion of these hapū.
In our view, the Crown had obligations to inform itself of the level of support or opposition by hapū to the Ngātiwai Deed of Mandate. As already noted, the vote did not provide that information. Yet the Crown now argues that the obligation lay with hapū to demonstrate opposition to the mandate through hui or other mechanisms.
The hapū representatives in this inquiry, in our view, demonstrated that they have gained support from their communities to speak on their behalf. This was done according to their tikanga at hui-ā-hapū.
The Te Whakapiko (Wai 156), Ngātiwai ki Whangaruru (Wai 2544), and Te Uri o Hikihiki (Wai 2546) claimants alleged a range of flaws in the mandate which they said meant it did not provide adequately for hapū rangatiratanga. Elvis Reti (Wai 2557) and Deirdre Nehua (Wai 2545) also argued that the question of hapū consent to the mandate needs to be resolved.
These claimants did not, however, claim a mandate to speak on behalf of their hapū. And, as we established in chapter 3, for at least some Ngātiwai communities hapū rangatiratanga exists and manifests alongside the authority and tikanga of whānau, marae, and iwi. Their opposition was focused on the way support for the mandate was secured, and on the claims that are made for the representativeness and accountability of the trust board. It became clear during the course of our inquiry that the issues raised by these claimants primarily concerned the ability of Ngātiwai groups to have their issues addressed through the course of the mandating process. Their concern was primarily centred on matters of tikanga.
The Crown points to the nature of these claims as further evidence that hapū have not been shown to oppose the mandate, and that opposition is sourced from a handful of individuals.
Our inquiry was granted urgency on the question of hapū support for the mandate, and the evidence of these claimants is central to the question of whether the mandated body can be appropriately representative of hapū. Therefore, while the claims were not brought on behalf of hapū, it is appropriate for us to consider the issues they have raised in assessing whether the mandate achieved by the Ngātiwai Trust Board, and recognised by the Crown, ensures that the tikanga of hapū claimants has been respected.
Nor are these claimants’ views unknown to the Crown. Most if not all of the claimants have been involved in the mandating process. This included claimant participation in the Crown’s preferred mechanism for gauging opposition: providing submissions to OTS. The submissions showed significant opposition to the mandate. If questions remained for the Crown as to the extent and strength of this opposition, these were matters for the Crown to take appropriate steps to resolve. We examine whether it did so in chapter 5. First, however, we examine the process laid down in the Deed of Mandate for demonstrating opposition: the mechanism to withdraw consent for the mandate.
The ability of the claimant group or large natural group to withdraw support for a mandate is an important mechanism to maintain the accountability of a mandated entity. On this all parties agree. The key difference between the parties is whether sub-groups – especially hapū – should be able to withdraw from the mandate. The view of the Crown and the Ngātiwai Trust Board is that a withdrawal mechanism is a means to ensure that, if the trust board loses the confidence of Ngātiwai, there is a process by which the members of Ngātiwai as a whole can vote to change the terms of the mandate or withdraw their support for the mandate. This is done broadly in the same manner that the mandate was given, by public notice, nationwide hui, and a vote of individual members of Ngātiwai.
The claimants in this inquiry view things differently. They see the large natural group, Ngātiwai, as comprising groups which include hapū with their own rangatiratanga. They say that a hapū should be able to withdraw support if it decides this is necessary.
The Deed of Mandate sets out the process that must be undertaken to achieve amendment or withdrawal of the mandate on behalf of the whole of the claimant community. Claimant community representatives must first write to the chair of the trust board to explain the nature and extent of their concerns and seek a meeting to discuss them. A minimum of 100 adult members of the trust board’s tribal register must sign. If the issues cannot be resolved with the board chair, the claimant community must initiate a further process. Claimants ‘may organise a series of publicly notified hui’. These hui ‘should’ follow the same process and procedures that were employed by the trust board to obtain the mandate. These include nationwide advertising in print media and holding nine hui ‘both nationwide and within the rohe or Area of Interest’. At these hui, a consistent presentation must explain the issues and parties involved and a detailed paper, similar to the Deed of Mandate itself, must set out alternative proposals or amendments. A vote, on a consistent resolution, must be taken at each hui, and an independent returning officer must be employed to oversee the process and notification of results. An observer from Te Puni Kōkiri must be invited to observe and record the hui.113
Once these hui are completed and the result of the vote is known, the claimant community representatives seeking withdrawal or amendment must write to OTS, setting out the result and seeking to discuss the next steps for the settlement negotiations. ‘This may involve some changes to the mandated body or another process to be undertaken as agreed with officials.’114
The withdrawal mechanism requires any group seeking to secure the claimant community’s withdrawal of support to adopt the same process followed by the trust board to gain the mandate in the first place. Claimants say the process is costly, onerous, and unworkable.115
Hūhana Lyndon acknowledged it would not be difficult to meet the first requirement: sending a letter co-signed by 100 adult registered members.116 The Crown agreed.117 From the time that submissions on the mandate were received in September 2014 and the extent of opposition became apparent, OTS officials were concerned there was a reasonable likelihood opponents would initiate steps to withdraw the mandate. But officials did not think an attempt to withdraw support would succeed. The large majority in favour of the mandate among those who voted meant it was unlikely, at that stage, any group seeking mandate withdrawal would gain sufficient support from the ‘wider claimant community’.118
Ms Lyndon said it was the subsequent steps, including nationwide hui, that would be virtually impossible for a claimant group to achieve. The claimant community, working voluntarily, did not have the capacity, resources, or time to carry out a process of that magnitude.119 The Crown disagreed, saying the process might sound onerous but that there was no evidence to suggest holding nine hui had to be either expensive or difficult to organise.120 We think this is disingenuous on the part of the Crown.
Indeed, the potential cost and difficulty of the withdrawal process was acknowledged by Crown officials before the mandate was recognised. In August 2015, OTS advised Te Puni Kōkiri on the difficulty of funding a withdrawal process:
the costs are likely to be high and this is something the Tribunal has already flagged in respect of the Tūhoronuku mandate – that it’s a high bar for opposing members of the claimant community who probably won’t have the same resources NTB does.121
While in general we do not think it helpful to go into the details of how much was spent to obtain the Deed of Mandate, it is clear the process was expensive. In September 2013, while voting on the mandate was taking place, the trust board advised OTS that it had spent around $300,000, making specific mention of mandate hui.122
Emily Owen, for OTS, told us the withdrawal process was not impossible, but ‘definitely very challenging’. With regard to funding to seek a withdrawal of mandate, Ms Owen said that was not current Crown policy and a directive from Cabinet would be necessary for any funding to be made available.123
The Ngāpuhi Mandate Tribunal also assessed withdrawal provisions that required those wanting withdrawal to use the same general process followed when the mandate was sought. That Tribunal considered the costs involved, whether for the entire claimant community or a single hapū, ‘militate against any group using the existing withdrawal provisions’.124 Based on the evidence we heard in this inquiry, we agree with that view. We acknowledge that the withdrawal process set out in the Ngātiwai Trust Board Deed of Mandate appears not dissimilar to those contained in the Ngāti Hauā Trust Board and Te Mana o Ngāti Rangitihi Trust mandates. As such, even though the process is not hapū specific, it is an improvement on that contained in the Tūhoronuku IMA mandate.125 Yet, this does not make the withdrawal mechanism more affordable for a group that wishes to initiate withdrawal of the mandate. This is because it is still required to organise, run, and fund nationwide hui to seek the support of the entire claimant community. If the withdrawal process is unaffordable, it cannot be said to be workable.
In a section of questions and answers about mandating, the 2004 edition of the ‘Red Book’ of OTS policy guidelines is clear on the risk of Crown funding for a mandating process:
Funding from the Crown is not available in advance for mandating processes. This is because it could be seen as taking sides before the claimant group has made a decision on who is to represent them.126
Once the Crown has recognised a mandate, it will consider providing funding. These statements are repeated in the 2015 edition.127 We received evidence that the Crown did provide funding before recognising the mandate. A letter to the Ngātiwai Trust Board from OTS, in December 2013, referred to mandate phase funding and pre-mandate funding.128 In addition, since 2009, Cabinet has delegated authority to the Minister for Treaty of Waitangi Negotiations to approve funding for ‘exceptional circumstances’. Further funding was provided to the trust board under this policy in February 2015.129
We make two points. First, despite having been updated in 2015, the ‘Red Book’ is still not an accurate reflection of how the Crown provides funding. Secondly, we see a contrast between, on the one hand, the Crown’s funding of groups seeking a mandate, and, on the other, an absence of funding for those seeking to withdraw from a mandate. It is clear to us why this might be understood by some as ‘taking sides’ or, as the Tāmaki Makaurau Tribunal put it, ‘picking winners’.130
In November 2015, the Patuharakeke Trust Board made a formal request that the Crown assist in funding a withdrawal process. OTS replied in July 2016, that ‘no funding has been approved for withdrawal from a deed of mandate’. The letter went on to restate the Crown’s view that Patuharakeke did not constitute a large natural group for the purpose of settlement negotiations.131 Given this view, and the clear statement in the Deed of Mandate that withdrawal of mandate must be undertaken on behalf of ‘the whole of the claimant community’,132 it is perhaps unsurprising the request for funding was refused.
The withdrawal process set out in the Ngātiwai Deed of Mandate does not and is not intended to enable ‘individual hapū or other groups within the wider community’ to withdraw from the mandate. This point was emphasised by the trust board in closing submissions. The board’s view is that because all Ngātiwai members conferred the mandate, they must all be given the opportunity collectively to withdraw.133
In the trust board’s view, the lack of any process for hapū or other groups to withdraw from the mandate is a ‘necessary consequence’ of the Crown’s large natural groups and settlement policies. This is because the Crown will not entertain any further separate settlements with any other ‘Ngātiwai’ hapū, including the eight ‘shared’ hapū.134 Certainly, in closings, Crown counsel confirmed it did not wish to negotiate a separate settlement with Patuharakeke.135
However, the trust board advanced additional reasons for keeping all remaining Ngātiwai claims within a single settlement. Primarily, it is concerned for the possible impact on the social and cultural dynamics within Ngātiwai, and thus on Ngātiwai unity and identity. ‘This includes impacts on the whakapapa and tikanga of further artificial and ad hoc divisions being imposed on the iwi through the settlement process.’136 The Crown’s prior settlements with Ngāti Manuhiri and Ngāti Rehua-Ngātiwai ki Aotea clearly continue to have significant influence in the trust board’s assessment of its position and that of Ngātiwai generally. Mr MacDonald told us Ngātiwai simply could not sustain its largest hapū settling separately and the greatest inequity would be faced by the smaller hapū left within Ngātiwai.137
The Ngāpuhi Mandate Tribunal discussed the mandate of the Ngāti Tūwharetoa Hapū Forum Trust, which set out a process to be followed if a hapū decided to seek to withdraw from the mandate. We make particular note of the requirements around public notices advertising hui-ā-hapū to discuss a proposal to withdraw. These notices had to explain the consequences of withdrawal, and the explanation had to be repeated before a resolution to withdraw was put to the hui. The explanation had to include a description of the Crown’s large natural groups policy and the likelihood that individual hapū would be unable to qualify as a large natural group and so be unable to enter settlement negotiations.138 A key difference between Ngāti Tūwharetoa and Ngātiwai is that the Ngāti Tūwharetoa mandate was sought on a hapū by hapū basis. The lack of a workable withdrawal mechanism for hapū serves to compound the problems created by the inability to know whether any hapū agreed to the Ngātiwai mandate in the first place. It also highlights the lack of accountability to hapū within the structure of the mandated entity.
The Crown and the trust board both submitted that because the mandate was conferred by all of Ngātiwai, it should only be withdrawn by the whole Ngātiwai membership. We understand the trust board’s desire to keep all remaining Ngātiwai claims within a single settlement, but it faces the difficulty of having agreed to release Te Kapotai from the mandate, as well as the fact of the two hapū which the Crown decided to settle with separately.
Our understanding of the Crown’s position, set out in its closing submission, is that the Crown considered it acceptable for the members of Te Kapotai with ‘whakapapa connections to Ngātiwai tūpuna’ to choose whether or not to have their claims settled by the Ngātiwai Trust Board.139 For the trust board, Mr MacDonald told us Te Kapotai were included due to ‘a push from our trustees who were Te Kapotai’ – the Ōakura, Ōtetao, and Ngaiotonga marae trustees. They wanted the Te Kapotai interests of their whānau to be settled by Ngātiwai.140
As we see it, the problem with this approach is that the whakapapa of individuals determines the inclusion of a hapū in the Deed of Mandate. We do not see a problem with a hapū belonging to more than one large natural group, for settlement purposes. But this is a matter for the hapū to decide.
When it came to the removal of Te Kapotai from the mandate, the Crown told us it was because the Ngātiwai Trust Board decided to remove them.141 Trust board chair Haydn Edmonds said the decision to remove Te Kapotai ‘had everything to do with whānau’. These whānau debated and resolved ‘as a whānau group to take Te Kapotai out’.142
The process followed in the lead-up to the board’s decision is unclear to us. We saw no evidence that the withdrawal processes set down in the Deed of Mandate were considered. Indeed, the mandate does not appear to contemplate a situation of this kind.
This does not demonstrate consistency or equality of treatment. In our view the trust board has been placed in this impossible situation because of the operation of the Crown’s large natural groups and comprehensive settlement policies. In seeking kotahitanga, whanaungatanga has been damaged, through the insistence that hapū be included in the mandate without their explicit consent, and without a workable withdrawal mechanism.
We return to the question of why hapū were included in the Deed of Mandate if they were not to be included in the mandating process. If hapū are named as part of the mandate then our view is that, just as the mandate should provide a mechanism to secure hapū consent, it requires a mechanism which allows them to withdraw. The issue gets to the essence of what the Crown considers hapū to be. The names of hapū were included in the Deed of Mandate to ensure that all hapū claims were included, but the Crown does not appear to accept that hapū need a voice in settlement negotiations.
The Waitangi Tribunal has consistently acknowledged both the right of the Crown to choose who it will negotiate with for the settlement of historical claims and the benefits to Māori communities from achieving larger, more comprehensive, and wide-ranging settlements. This Tribunal endorses the statement of the Pakakohi and Tangahoe Tribunal that the Crown’s preference for dealing with large natural groups is one ‘with which we have considerable sympathy’.143 That Tribunal went on to quote the words of the Whanganui River Tribunal, which said: ‘While Maori custom generally favours hapu autonomy, it also recognises that, on occasion, the hapu must operate collectively.’144
We have located the source of most opposition to the Ngātiwai Trust Board’s mandate in the inclusion of groups in the Deed of Mandate without their consent, and without proper mechanisms for their representation and accountability.
In particular, we identified problems with:
- the shifting boundaries and identities within the claimant definition;
- the scope of the research that has been undertaken to support the claimant definition;
- the trust board’s structure as set out in its deed;
- the fact that the additional advisory bodies added for settlement purposes will do little to provide hapū with appropriate representation during the negotiations process;
- the limitations of a vote of individual members as a measure of hapū support for the mandate; and
- the absence of a workable system for hapū to withdraw support from the mandate.
What is absent is recognition of hapū tino rangatiratanga. In our view, such recognition is a prerequisite for collective action, because with consent, representation, and accountability comes the responsibility of owning the consequences of decisions.
Tino rangatiratanga is particularly relevant to the hapū Patuharakeke, Te Waiariki, Ngāti Kororā, and Ngāti Takapari (and for Te Kapotai). It provides the basis on which to engage with a group such as Te Whakapiko in order to establish whether they should or should not be part of a settlement, and to assess the concerns of those who are worried that the Ngātiwai claimant definition is too broad.
We observe that the Ngātiwai Trust Board shows obvious signs of having been scarred by its involvement in the settlement process thus far. It is clear that the experience of the two southern hapū being offered separate settlements has been distressing and has strengthened a desire to ensure that Ngātiwai retains its kotahitanga in a post-settlement era. Where hapū, members of hapū, and claimants have sought to ensure their participation in the settlement process, and accountability from a representative entity, the trust board’s response has been that Ngātiwai must remain united. Allowing hapū to withdraw their support is seen by the board as damaging that goal. We do not see things that way. The trust board has acknowledged ‘that all constituent hapū of Ngātiwai, including Te Waiāriki and Ngāti Kororā, have their own unique origins and identities’.145 Properly acknowledging these origins and identities, in our view, requires recognition of their tino rangatiratanga, as the basis for building a reciprocal relationship of trust and mutual responsibility between iwi, hapū, and marae.
37. Schedule 2 to the trust deed sets out ‘Recognised marae of Ngatiwai’: Tūparehuia, Ngāiotonga, Ōtetao Reti, Ōakura, Mōkau, Whananāki, Matapōuri, Ngunguru, Pātaua, Takahīwai, Ōmaha, Motairehe, Kawa, Punaruku: submission 3.1.106(a), pp 37–38, 42.
43. Document A77, p 5. The terms ‘manaaki manuhiri’, ‘tangihanga’, ‘kawe mate’, and ‘waananga’ can be translated as hosting guests, funerals, and obsequies, conveying (or sharing) grief for deaths, and study, research, or learning sessions.
85. We were given varying information by the board as to its members’ affiliations to these hapū: ‘just over 100 Te Waiāriki, almost 330 Ngāti Takapari and around 350 Ngāti Kororā – or a minimum of 785 “Te Waiāriki iwi” members’ (doc A98, p 15), and ‘a significant number of individuals from Te Waiāriki (334) and Ngāti Kororā (110) (as well as the closely-related Ngāti Takapari (195)) are currently Registered Members of the Board’ (doc A24 p 9).
126. 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, 2004), p 52
127. 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, 3rd ed (Wellington: Office of Treaty Settlements, 2015), p 47