November 2000 Contents

Waitangi Tribunal

Memorandum re northern South Island claims & Ngäi Tahu

Report re Tangahoe and Pakakohi claim settlements

Other Courts and Tribunals

Legal Aid Review Authority – Mäori groups & civil legal aid

Other

Speeches on the 25th anniversary of the Waitangi Tribunal


 

Waitangi Tribunal

Northern South Island claims and Ngäi Tahu

Memorandum-directions. 3 November 2000, 28 November 2000. Deputy Chief Judge Isaac

Between 1987 and 1998 eight claims were filed on behalf of northern South Island iwi with the Waitangi Tribunal (Kurahaupo-Rangitane, Te Runanga o Te Tau Ihu o Te Waka a Maui, Ngäti Toa Rangatira, Ngäti Kuia, Ngäti Koata, Ngäti Rarua, Te Atiawa, Ngäti Tama). They became collectively known as the Te Tau Ihu iwi claims.

In 1999 a sitting of the tribunal was appointed to hear the claims. In preparation for the hearings the Waitangi Tribunal sought more details of the claims, which on their face were all concerned with actions or omissions of the Crown alleged to be in breach of the principles of the Treaty and thus within the jurisdiction of the tribunal.

At the first conferences to prepare for hearings, Ngäi Tahu challenged the jurisdiction of the Waitangi Tribunal to hear any aspect of the claims which might allege that there had been Crown actions in breach of the Treaty within the area defined by the Te Runanga o Ngäi Tahu Act 1996 and Ngäi Tahu Claims Settlement Act 1998 as the Ngäi Tahu takiwä (an area covering the South Island, but excluding lands at the northern end in the Marlborough-Nelson-Tasman regions). The tribal boundary had been set by the Mäori Appellate Court following a hearing in 1990.

Ngäi Tahu claimed that:

• They had full and exclusive rights and interests within the Ngäi Tahu claim area or takiwä;

• All incidences of those exclusive rights resided in Ngäi Tahu - including rangatiratanga, common law rights, mana whenua and mana moana;

• No other iwi held or holds any other rights in the Ngäi Tahu takiwä;

• The Treaty of Waitangi Act 1975 had been specifically amended to prevent the tribunal hearing any claims by other iwi within the Ngäi Tahu takiwä.

The Waitangi Tribunal set a date to hear submissions on that issue, and in the interim commenced the first hearings of the Te Tau Ihu claims on the understanding that no issues within the Ngäi Tahu takiwä would be discussed until the submissions over the boundary issue were heard (Ngäi Tahu nevertheless appeared at the first hearing and asked that parts of the opening submissions and evidence of the Te Tau Ihu claimants be struck out because they referred to matters within the Ngäi Tahu takiwä. The tribunal denied that request).

This memorandum and directions followed the subsequent full hearing on the boundary and jurisdiction issue.

Held: the tribunal was not prevented from embarking on an inquiry into the Te Tau Ihu claims and there was insufficient evidence at this stage to consider what the precise jurisdictional issues might be. The general question of jurisdiction over claims affecting the Ngäi Tahu takiwä would be adjourned, to be raised and considered on an issue by issue basis as the inquiry proceeded and evidence became available.

General jurisdiction of the tribunal

Ngäi Tahu argued that the general issue of jurisdiction was a matter to be decided by interpreting the law and matters of fact were not relevant to that decision. Te Tau Ihu argued that the factual background to the claims was relevant to the jurisdictional issues.

The tribunal considered that factual matters were relevant. It first criticised Ngäi Tahu for concentrating in its submissions on the provisions of the Treaty of Waitangi Act 1975 restricting the tribunal jurisdiction, without placing those provisions in the context of the broader jurisdiction granted by the Act.

The tribunal noted that its jurisdiction was wide under s6/1975 and that the consideration of claims inevitably requires an examination of the factual background to them. The tribunal adopted the decision of the High Court in Te Runanga o Wharekauri Rekohu Inc v Waitangi Tribunal (CP118/94. Heron J), in which a group representing various iwi on the Chatham Islands sought orders preventing the Waitangi Tribunal from hearing claims by a Moriori group. The High Court considered that the tribunal had "the widest of jurisdictions" by virtue of s6 and that there was no practical way of ring-fencing the jurisdiction in advance of hearings and before historical evidence had been received. That case was applicable even though in the case of these claims, the Mäori Appellate Court had already made a decision on boundary issues in the South Island. The northern South Island hearings had only just commenced and the bare pleadings required development by the presentation of evidence.

The jurisdictional question was based on fact, which involved consideration of the historical evidence, inquiry into the grievances alleged against the Crown and obtaining the entire history of Te Tau Ihu iwi, not a "partial or diluted portion". The tribunal should not be "hamstrung" at this early stage of the process.

Ngäi Tahu Claims Settlement Act

Ngäi Tahu submitted that the tribunal lacked any jurisdiction to consider the claims where they touched on the takiwä of Ngäi Tahu because:

• s461 of the Ngäi Tahu Claims Settlement Act 1998 Act provided that no tribunal or court had jurisdiction to inquire into any Ngäi Tahu claims;

• s462/1998 (inserting s6(9) Treaty of Waitangi Act 1975) provided that the Waitangi Tribunal specifically may not inquire into any Ngäi Tahu claims.

Ngäi Tahu argued that the term "Ngäi Tahu claims" was sufficiently broad to include any claim challenging Ngäi Tahu’s exclusive rights within its takiwä, no matter how that claim was formulated. Ngäi Tahu further argued that it was inconceivable that they would have agreed to the legislation (which had to be specifically approved by Ngäi Tahu) on any other terms.

Te Tau Ihu opposed that interpretation. The Crown also made submissions that:

• None of the Te Tau Ihu iwi was included in the definition of "Ngäi Tahu claimant";

• It would be a matter of fact whether any Te Tau Ihu iwi said to be affected by a particular historical grievance was associated with Ngäi Tahu in such a way as to constitute a Ngäi Tahu claimant;

• There was insufficient information before the tribunal at this early stage of the hearings for it to make any judgment on the jurisdiction issue.

The tribunal examined the Court of Appeal decision in Ngäti Apa v R (CA 154/99, see Mäori LR May 2000 p3) in which four judges commented that ss461-2/1998 did not bar Ngäti Apa from making claims to the Waitangi Tribunal which might intrude into the takiwä of Ngäi Tahu. Although the Court of Appeal was only considering a narrow issue in that case, the obiter comments were nevertheless "relevant and persuasive" for the tribunal.

The general principles of statutory interpretation were relevant which require that rights of access to the courts should only be taken away by clear language, and clauses purporting to take away that right must be strictly construed. It had been said also that some common law rights lie so deep that even parliament cannot override them (Taylor v NZ Poultry Board [1984] 1 NZLR 594).

The references limiting future claims in the Ngäi Tahu legislation referred to Ngäi Tahu claims only and their settlement. There were no clear words to exclude other claims. It was "inconceivable" that parliament intended to preclude Te Tau Ihu iwi from making claims to the tribunal without such clear and precise wording.

However, while Te Tau Ihu argued that the claims lodged, on their face, were not Ngäi Tahu claims, it was simply too early to determine if any one of those claims or parts of them fell within the definition of Ngäi Tahu claims. If after hearing evidence it became clear that a Te Tau Ihu claim fell within that definition then the tribunal would have no jurisdiction to proceed to hear that matter further.

Mäori vs Mäori claims

The tribunal rejected a Ngäi Tahu argument that the Te Tau Ihu iwi claims were in effect an attack on the Ngäi Tahu boundary, so that the claims were in effect an iwi vs iwi issue and outside the jurisdiction of the tribunal. The statements of claim alleged breaches of the Treaty by the Crown. That must be accepted until further factual evidence became available.

Mäori Appellate Court

The tribunal also rejected an argument that it had already accepted that the tribunal should not determine tribal boundaries when it had handed the issue over to the Mäori Appellate Court (MAC) for a decision in 1990. The exact question put to the MAC had been "Which Mäori tribe or tribes according to customary law principles of ‘take’ and occupation or use had rights of ownership in respect of [the land contained in the Arahura and Kaikoura Deeds at the date they were signed]?" The finding was that "The Ngäi Tahu tribe according to customary law principles of take and occupation or use had the sole rights of ownership" in respect of those lands.

In the Ngäti Apa decision the Court of Appeal thought that the decision of the MAC was not binding on a person not party to the proceedings, although it was binding on the tribunal. The Court of Appeal also considered that the High Court had jurisdiction to declare that there was some procedural problem with the way in which the MAC had reached its decision (although this would not affect the settlement legislation which gave the decision legal force), and a Mäori could take a claim to the Waitangi Tribunal about the circumstances in which the decision was made and its effect.

The tribunal concluded that the decision of the MAC could not bind the tribunal in respect of issues or parties different from those involved in the particular case and the particular point decided. "At best" the decision would prevent the tribunal from considering who owned the land comprised in the Arahura and Kaikoura purchases at the date those deeds were signed.

Te Runanga o Ngäi Tahu Act 1996

With regard to the 1996 Act, which gave Ngäi Tahu legal personality for the purpose of its claims settlement and defined the boundary of the takiwä of Ngäi Tahu in accordance with the decision of the MAC, the Court of Appeal also considered that issue in the Ngäti Apa case. It concluded that such definition was for the purpose of defining Ngäi Tahu as against any other Ngäi Tahu pretenders, but had nothing to say about other iwi claiming interests within the takiwä. The tribunal accepted that ruling by the majority of the Court of Appeal. The 1996 Act simply put the tribunal on notice that it must take that Act into account during its inquiry and when considering any recommendations on the Te Tau Ihu claims.

On the issue of boundaries generally, the tribunal commented that it has been reluctant in the past to fix tribal boundaries, since there are often overlapping and layered rights within the same area. Mäori interests "may be more fluid than … European interests and cannot be described by European property rights terms." Expert witnesses (Prof Alan Ward, Dr Angela Ballara) had attested to this. This was true of Te Tau Ihu iwi, particularly in relation to rights derived through differing whakapapa. Many Te Tau Ihu people could whakapapa to Ngäi Tahu was well as Te Tau Ihu and it was not possible to "draw a boundary line through whakapapa". Accordingly, careful consideration of customary evidence would be required.

Previous cases and estoppel

The fact that various claimant groups within Te Tau Ihu had previously been involved in litigation concerning Ngäi Tahu should also not prevent the inquiry commencing. As evidence came to light it would be possible to determine if legal doctrines of estoppel and the like might operate to limit the claims inquiry.

Claims in bad faith

The tribunal also considered an argument by Ngäi Tahu that it should exercise its discretion under s7/1975 on the basis that the claims of Te Tau Ihu iwi were made in bad faith or that there were alternative avenues for redress for the claimants. Te Tau Ihu argued that this argument was so ridiculous that it should be dismissed without comment. The tribunal considered that it simply had no evidence of the bad faith alleged and that it was the correct forum to hear the claims being made.

Natural justice, NZ Bill of Rights Act 1990

The tribunal considered that s6/1990 (consistency with Bill of Rights Act 1990) and s27(1)/1990 (right to natural justice) were relevant. Ngäi Tahu obviously did not consider Te Tau Ihu iwi had a right to be heard, but natural justice should not be denied on the basis of membership of particular iwi, and s4 Commissions of Inquiry Act 1908 (all those with an interest apart from the general public entitled to be heard), applied.

There would be a "considerable injustice" if Te Tau Ihu iwi were not heard. "Ngäi Tahu have had their claims heard and settled. Their rights to do this were not interfered with, and it is only fair that Te Tau Ihu iwi be afforded the same opportunity". Only a full inquiry would suffice.

Conclusion

Accordingly, the general question of jurisdiction in relation to the takiwä of Ngäi Tahu would be adjourned, to be raised and considered on an issue by issue basis as the inquiry proceeded – although only one regional report for the whole inquiry would be issued.

The tribunal noted that Ngäi Tahu had asked that, if the hearings affecting the Ngäi Tahu takiwä were to proceed, the tribe should have the right to appear, present evidence, and cross examine witnesses. The tribunal sought further submissions from Ngäi Tahu on that matter.

Ngäi Tahu role in future hearings

In subsequent directions, the tribunal determined that:

• Ngäi Tahu accepted that it was not a party to the hearings, but maintained that it was an "interested person" under s4A Commissions of Inquiry Act 1908 (interests in the inquiry apart from those of the general public);

• It would not be appropriate to make a blanket ruling on the right for Ngäi Tahu to appear in the Te Tau Ihi hearings. Nor was it sufficient for Ngäi Tahu to submit that its interest in the inquiry was "so obvious as to not be capable of serious argument". The issue would be considered on a claim by claim and issue by issue basis as it arose in the course of the hearings;

• Ngäi Tahu could have a watching brief on the entire inquiry;

• Within 28 days of evidence being presented, Ngäi Tahu should advise the tribunal of any evidence it might wish to present and any witnesses it might wish to recall to cross examine. The tribunal would determine for each such application if "interested person" status attached to that request;

• Te Tau Ihu lawyers would have the right to re-examine any of their witnesses recalled by Ngäi Tahu and to cross examine any Ngäi Tahu witnesses;

• This hearing of Ngäi Tahu issues would take place at the end of claimant evidence, and before the Crown presented its evidence in reply to the claimants.

On the issue of cross examination generally the tribunal directed that:

• Any cross examination between claimant groups must be requested in advance and requests would not automatically be granted;

• Cross examination of kaumatua witnesses would not generally be allowed, but this general rule would be subject to the position held by the person giving evidence and the nature of the evidence given.

Commentary: the directions placing some limits on cross examination between claimant groups is interesting. This will be a particular concern given the many iwi involved in these claims. Such a rule might also be useful in other inquiries where very strong cross claimant issues can be a distraction from the focus of inquiries on actions of the Crown.

 

The Pakakohi and Tangahoe Settlement Claims Report

Wai 142 and Wai 758. 14 November 2000. Chief Judge JV Williams, R Maaka, J Morris.

Background

In June 1996, the Waitangi Tribunal issued an interim report, the Taranaki Report: Kaupapa Tuatahi, to assist with a negotiated settlement between the Taranaki claimants and the Crown (see Mäori LR, p 1, 2). The tribunal noted in its report that while history recorded over 100 Taranaki hapü, there were now ten groups who "demonstrated that they exist today as distinctive and viable entities deserving separate consideration" in settlement negotiations. The ten groups comprised the eight hapü aggregations represented on the Taranaki Mäori Trust Board, including Ngäti Ruanui, as well as Tangahoe and Pakakohi.

The tribunal considered that any settlement apportionment should be agreed between the hapü within three regions: a northern, a central and a southern region. Ngäti Ruanui, Pakakohi and Tangahoe came within the southern region, together with Ngä Ruahine and Ngä Rauru. However, the tribunal added that "although we recognise Pakakohi and Tangahoe as functioning entities of distinctive tradition, they have not had an exclusive occupation of territory nor have they established to our satisfaction that they have asserted such pre-eminence either formerly or today as might entitle them to share equally with Ngä Ruahine, Ngäti Ruanui, and Ngä Rauru". The tribunal reserved leave to all parties to seek further hearing of their claims if the proposed settlement negotiations were unsuccessful or would benefit from further consideration of particular matters.

Between November 1995 and June 1997, a number of consultation and mandating hui took place to elect delegates to a working party to represent Ngäti Ruanui hapü in settlement negotiations with the Crown. In June 1997, that working party (Ngäti Ruanui Muru me te Raupatu Working Party) submitted its mandate to the Minister in Charge of Treaty of Waitangi Negotiations (the Minister), with advice that there were "matters to resolve with groups claiming Tangahoe and Pakakohi status". In August 1997, the Office of Treaty Settlements (OTS) briefed the Minister on three possible approaches to progress the settlement of the claims of Ngäti Ruanui, Tangahoe and Pakakohi. The options were that:

1. Tangahoe and Pakakohi make an arrangement with Ngäti Ruanui to negotiate their claims collectively. Officials thought that this outcome would be unlikely because of "seemingly intractable positions expressed by representatives of the various parties".

2. The Crown negotiate separate settlements with Ngäti Ruanui, Tangahoe and Pakakohi. Officials noted that this was not the Crown’s preference but could be justified on the basis that the tribunal recognised in its interim report that Tangahoe and Pakakohi were distinct entities and therefore deserved separate consideration.

3. The Crown recognise the Ngäti Ruanui deed of mandate and not conduct separate negotiations with Tangahoe and Pakakohi, on the basis that neighbouring iwi do not recognise them as iwi.

Officials noted that this would go against the tribunal’s findings and would be likely to be strongly opposed by the Tangahoe and Pakakohi representatives. On the other hand, they advised that this approach could be justified if the mandate evaluation process revealed wide support for a Ngäti Ruanui deed of mandate and little support for deeds of mandate submitted by Tangahoe and Pakakohi. It was also suggested, in justification of this approach, that Ngäti Ruanui make provision for the representation of Tangahoe and Pakakohi interests on the negotiating body.

The Minister then called for public submissions on the working party’s deed of mandate. In a letter to the chair of the working party, the Minister advised that the Crown would prefer it if the groups themselves would resolve the mandate issue. But, if that were not possible, the Minister advised that the submission process would "allow the Crown to assess the size of the Tangahoe and Pakakohi interests and the extent to which they can be represented within the working party’s Deed of Mandate".

In the submission process that followed, during October and November 1997, the Crown received eight Tangahoe submissions and four Pakakohi submissions. The working party had an opportunity to respond to the submissions, and Te Puni Kokiri (TPK) analysed them as part of an assessment of the risk of the Crown recognising the working party’s deed of mandate. TPK concluded that there was not strong evidence that Tangahoe and Pakakohi were iwi in their own right. It therefore considered that the submissions from those who purported to represent Tangahoe and Pakakohi should be treated as arising from a minority interest in Ngäti Ruanui and that they did not have the right to negotiate exclusively with the Crown to settle historical grievances. Rather, it recommended that they approach the Crown together with the claimant groups with whom they historically shared occupation of territory. However, TPK did recommend that the Crown require the working party to provide for Tangahoe and Pakakohi interests by designating one place on the working party for a Tangahoe representative from Ngatiki marae and at least two places for delegates from Manutahi marae, which wished to affiliate with Pakakohi.

In its risk assessment, OTS found that the working party had the mandate to negotiate the settlement of Ngäti Ruanui’s historical claims "on behalf of the entire claimant community". However, it recommended that the Crown require the working party to make greater provision for Tangahoe and Pakakohi representation on it, and it suggested either:

• An additional place for Ngatiki marae to represent Tangahoe interests and the holding open of a place for Manutahi Marae for Pakakohi interests; or

• Guaranteed representation for Te Iwi o Tangahoe and Te Runanganui o te Pakakohi Inc.

In April 1998, the Cabinet Strategy Committee agreed to the Minister’s recommendation that Cabinet recognise the working party’s deed of mandate on condition that:

• Tangahoe interests were represented on the Working Party through an additional Ngatiki Marae representative; and

• Continued provision was made for Manutahi marae representatives on the Working Party to represent Pakakohi interests.

The committee also noted that recognition of the mandate on those terms would "send a clear signal to those individuals who identify exclusively as Tangahoe and Pakakohi that the Crown intends to address their claims under a Ngäti Ruanui umbrella".

Cabinet agreed to the committee’s recommendations and the Minister followed the decision with a letter to the working party, the principal Tangahoe and Pakakohi spokespeople and the chairmen of Ngatiki and Manutahi marae in which he stated that the Crown was not prepared to enter into separate negotiations with groups representing Tangahoe and Pakakohi. In September 1999, the Crown and the working party entered into a heads of agreement to settle the historical claims of Ngäti Ruanui.

The claims

Two claims were made to the Waitangi Tribunal challenging the Crown’s decision to accept Ngäti Ruanui’s mandate to settle the claims of Tangahoe and Pakakohi. In November 1998, Huia Rei Hayes submitted a claim for and on behalf of herself and Te Runanganui o Te Pakakohi Trust Incorporated. The tribunal registered the claim as Wai 758. In April 2000, the claimants in Wai 142, a claim for and on behalf of Te Iwi o Tangahoe Incorporated, filed an amendment to that claim. Wai 142 was originally submitted in mid 1990 and had been one of the 21 claims on which the tribunal had reported in 1996 in its interim report. In October 2000, following an attempt to resolve issues through mediation and resulting discussions, the tribunal granted the claims an urgent hearing.

The Pakakohi claimants submitted that:

• Three mandating hui held in 1997 gave Pakakohi Inc unanimous support.

• It was not necessarily Pakakohi Inc’s intention to negotiate exclusively of Ngäti Ruanui; however, the Incorporation had a right to negotiate alongside them.

• Pakakohi Inc had received no funding from the Crown.

• The Pakakohi Inc’s register of supporters, containing 306 names, indicated support for the incorporation.

• A marae-based system of representation was inappropriate for Pakakohi as most Pakakohi marae and pa sites had been destroyed in the wars of the 1860s, with Manutahi the only marae left. Pakakohi had consequently been dispersed among the marae of neighbouring hapü and hapü-based representation was today a more appropriate form of representation.

• Pakakohi’s territorial overlap with Ngä Rauru meant that half of Pakakohi’s grievances would be left undefined in the proposed deed of settlement, yet it would settle all of Pakakohi Inc’s claims, without its consent.

• The Crown was wrong not to take up the option suggested by officials in August 1997 of assessing claimant community responses to a Pakakohi Inc deed of mandate.

The Pakakohi claimants filed affidavit evidence in support of their claim. In one affidavit, Piki Parker, a Pakakohi claimant, stated how she and others of Pakakohi Inc had embarked upon the mandating process that OTS required but had been frustrated by a lack of funding, which OTS had told them was not available until a mandate had been recognised. The Pakakohi claimants had deliberately not attended the working party’s mandating hui in late 1996 and 1997 because they were clear in their minds that "these hui were not for us they were for Ngäti Ruanui". In November 1997, and again in March 1998, Ms Parker had advised the Minister that Pakakohi Inc was intending to submit its own mandate for assessment. However, Pakakohi did not submit the mandate, which was completed in June 1998, because by that time she had learned that TPK and OTS had prepared their assessment reports and Cabinet had made its decision to recognise the working party’s deed of mandate and not enter into separate negotiations with Pakakohi Inc.

In another affidavit, Dr Bryan Gilling presented an expert’s view of the quality of the Crown’s assessment of the working party’s deed of mandate and the Crown’s decision not to enter into separate negotiations with Pakakohi Inc and Tangahoe Inc. Dr Gilling was an experienced historian who had undertaken considerable work in the Treaty claims area and had held the position of senior historian and historical team manager at OTS from 1995 to 1996 when Taranaki tribal mandating issues were first considered. Dr Gilling was highly critical of the Crown’s lack of thoroughness in assessing the working party’s mandate. In Dr Gilling’s view:

• The Crown had misread the Waitangi Tribunal’s suggestion that Pakakohi and Tangahoe be given separate consideration but unequal shares to mean that they should receive no separate share at all.

• The Crown had insufficient historical evidence upon which to reach a decision of this gravity. Although an historian within OTS had prepared a report, she had reached tentative findings only and had recommended that further research be carried out into the relationship between Pakakohi, Tangahoe, and Ngäti Ruanui. Papers presented by the working party did not shed light on the status of Pakakohi and Tangahoe.

• The risk analysis by TPK was superficial and of no historical analytical value. TPK had merely relied on the documents submitted by the working party, the very body that the claimants were opposing.

• The OTS risk analysis defied logic in that, while at least recognising that there was uncertainty about Pakakohi’s and Tangahoe’s status, it then proceeded to reach a firm conclusion about that status.

• The 1998 Cabinet paper was flawed given that it relied on the OTS assessment and even made the situation appear more definite and unquestionable than was in fact the case.

For their part, the Tangahoe claimants contended that:

• The Tangahoe Inc deed of mandate had been submitted to OTS but had never been assessed.

• Tangahoe were prepared to set aside their previous assertions that denied Ngäti Ruanui’s existence and to work co-operatively to reach an agreement.

• A compromise could be reached if the tribunal recommended that more time be set aside before the deed of settlement was signed.

The tribunal received briefs of evidence from five witnesses on behalf of Tangahoe Inc. In her evidence, Mrs Bublitz clarified that the Tangahoe Inc register, which held 1,378 names, was a register of those who identified as Tangahoe and not "itself confirmation of a Treaty of Waitangi claim mandate for Tangahoe". However, a registration form had been sent to 1,000 members of Tangahoe seeking expressions of support for "Te Iwi of Tangahoe" to have the mandate "in all future negotiations and development". Ninety-one people had filled in these forms. Other briefs outlined steps that had been taken to establish a hapü mandate at Ngatiki marae, how Ngäti Tanewai representatives at Wharepuni marae had been elected then undemocratically removed, how the working party’s deed of mandate was claimed to be invalid, and how the TPK and OTS risk analyses were problematic.

The Crown’s case

The Crown submitted that it had followed a fair and just process in recognising the working party’s deed of mandate. In particular, it refuted the claim that, in recognising the mandate, it had relied upon inadequate or insufficient evidence and research. The Crown still believed that the Pakakohi and Tangahoe claimants were "dissenting groups within one claimant community" and it would continue to refuse to consider deeds of mandates from the claimants.

The Crown’s policy was to settle with large natural groupings, such as iwi, although counsel expressed this as a preference, not a rigid policy. The Crown had kept an open mind, accepting the advice of officials at OTS that it await the outcome of the public submission process on the working party’s deed of mandate before deciding how to deal with Pakakohi Inc and Tangahoe Inc.

In the course of the hearing, the tribunal asked Crown counsel whether the Crown intended to disregard the Pakakohi Inc and Tangahoe Inc mandates if they were heavily opposed by the Ngäti Ruanui submissions or whether it would assess the level of support for them from within the Pakakohi and Tangahoe communities. In reply, Crown counsel stated that the level of support should be gauged from within the claimant community, which he defined as the descendants of those who suffered the historical grievances. Counsel agreed that this meant that "what Ngäti Ruanui felt about a Pakakohi Inc mandate would certainly weigh heavily in the Crown’s assessment." In the end, the Crown saw the submission process as the best indicator of support and "significant" levels of support would have to be demonstrated for another group before the Crown would consider additional negotiations. The Crown realised that the decisions would not please everyone, but it stood by them and stressed that they were not arbitrary. On the contrary, they were part of a complex political judgement process. With respect to the boundary split facing Pakakohi, Crown counsel advised that the Ngäti Ruanui settlement would encompass the claims of Pakakohi and Tangahoe, except for those who affiliated to Ngä Rauru hapü and marae, whose claims would be settled in the negotiations with Ngä Rauru.

Andrew Hampton, a manager at OTS, gave evidence in reply to Dr Gilling. According to Mr Hampton, Dr Gilling had over-emphasised the quality of historical research in the mandate assessment process, when it was "essentially a policy and a political process, not one of legal or historical inquiry". He stated that it would require a "clear majority of the marae, hapü and iwi members that today make up the claimant community" before the Crown would consider negotiating separately with the Pakakohi or Tangahoe claimants. Mr Hampton defined the three groups as a "claimant community" on the basis that they shared the same land, history, and grievances. It was possible that a particular claimant community would accept a smaller group settling with the consent of the larger aggregation (the settlement of the claims of Ngäti Turangitukua – a hapü of Tuwharetoa – was an example) "but each circumstance would be different".

In assessing a deed of mandate, the Crown considered the following factors:

• General historical evidence on who suffered the grievance.

• Current marae and hapü affiliations.

• The extent to which the whakapapa and the history of groups overlapped.

• How groups were perceived by their neighbours.

• The relative size of the groups, in terms of population and rohe.

• Relevant findings of the Waitangi Tribunal.

• The robustness of the process to appoint representatives.

• The governance polices of the body seeking the mandate.

• The level of support for the mandate as expressed through public submissions.

• Additional provisions for the representation of dissenting interests.

The Crown had been sufficiently satisfied that the working party met the necessary criteria to recognise its mandate.

In reply to the tribunal’s statement that it was interested in "identifying real communities, not virtual ones on the basis of whakapapa", Mr Hampton stated that he did not believe that there was a current and viable Pakakohi community because Pakakohi overlapped too much with other groups. However, the Crown’s classification of Pakakohi did not mean that it had to be defined either as an iwi or as a group of dissenters. In Mr Hampton’s view, there was another option, by which Pakakohi could participate actively in the working party’s process. Indeed, this opportunity had been extended to Pakakohi but had not been accepted. In the future, it was possible that Pakakohi could be represented directly on the Ngäti Ruanui governance structure "as long as such representation was properly accountable to the claimant community".

Mr Hampton believed that it had been sufficient to seek responses from Mäori through written submissions. The submissions had followed a lengthy series of hui, although they had been conducted by the working party. He also stressed that the Crown’s refusal to test the mandates of Pakakohi Inc and Tangahoe Inc did not close the door to those groups. It simply changed the focus to what was the best way to accommodate them within the working party’s process. As to whether representation should have been by marae or by hapü, Mr Hampton conceded that this issue did give rise to concerns but they were not sufficiently problematic to justify a review of the mandate.

The working party was also separately represented at the hearing. Among other things, counsel submitted that:

• Until very recently a main feature of the cases for Pakakohi Inc and Tangahoe Inc was that Ngäti Ruanui had been a Päkehä construct, and the Crown’s assessment of their submissions on the working party’s deed of mandate should be seen in those terms.

• The working party had always provided for Pakakohi and Tangahoe representation.

• The majority of Pakakohi and Tangahoe supported the working party’s mandate and these two claims had been brought by dissidents within Pakakohi and Tangahoe. The lists that each of the claimants had produced were not lists of people supporting separate negotiations for Pakakohi Inc and Tangahoe Inc and each list contained entries that were problematic.

• It was not the case that marae, and not hapü, representatives had been selected for the working party; the basis for representation had been hapü by hapü at marae.

Tribunal’s decision

The tribunal prefaced its decision by expressing surprise that no party had sought to argue a fundamental question of jurisdiction: whether the Waitangi Tribunal could or should deal with these forms of mandate dispute at all. "Although the claims are technically aimed at the Crown, they mask what is essentially an internal dispute between closely related kin groups as to which organisation at which level speaks for them. The tribunal was not established to deal with these categories of dispute. ... [O]ur jurisdiction requires us to focus on decisions of the Crown." While, in reality the working party was the true respondent, the Crown could be seen as the primary "respondent" in order to meet jurisdictional requirements. However, the constraints on the tribunal’s jurisdiction meant that it should tread very carefully.

On the basis of these remarks, the tribunal stated emphatically that it was "not the role of this tribunal in investigating claims of this nature to substitute its own view of matters, for that arrived at by the Crown and the working party". Although the tribunal’s jurisdiction was not the same as that of judicial review, the tribunal would instinctively adopt the principle of extreme caution that was found in such cases. Thus, the political nature of the decision-making under challenge, the artificiality of treating internal disputes as if they were disputes against the Crown, and the inherent difficulty of the subject matter would mean that the tribunal would not interfere in mandate decisions "except in clear cases of error in process, misapplication of tikanga Mäori, or apparent irrationality".

To determine whether the Pakakohi and Tangahoe claims were well-founded, the tribunal developed a four part test.

1. Did tikanga or early colonial history (or both) recognise Pakakohi or Tangahoe (or both) as a cultural and political entity distinct from Ngäti Ruanui?

2. Did Pakakohi or Tangahoe (or both) have claims that were distinct from those of Ngäti Ruanui? From this question, the tribunal sought to discern whether there was a prima facie case in favour of Pakakohi and Tangahoe each being entitled to a separate settlement.

If the answer to these questions was "yes" in case of either or both kin groups, the following questions arose.

3. Was there sufficient evidence of support for a separate settlement in favour of Pakakohi Inc or Tangahoe Inc (or both) to warrant the tribunal taking a "hard look" a the Crown’s handling of the Ngäti Ruanui working party mandating process?

4. If there was sufficient evidence to warrant a "hard look" at the matter, were there flaws in the Crown’s handling of that matter of sufficient severity to justify the tribunal considering that the Crown’s acceptance of the working party’s mandate to settle on behalf of Pakakohi or Tangahoe (or both) was unsafe?

In respect of question one, the tribunal stated that "[o]n the limited evidence available to us, we would come to the same conclusions reached in the Taranaki report, where the ‘distinctive’ tradition’ of Pakakohi and Tangahoe was recognised". It added, however, that that identity was "today very closely related to that of Ngäti Ruanui".

In relation to question two, the tribunal concluded Pakakohi did have claims "distinct from those of Ngäti Ruanui, even if it could not be said that they were separate". In reaching its conclusion, the tribunal considered affidavit evidence from Mr Kahukuranui relating to the incarceration, trial, and confiscation suffered by people as Pakakohi, even though all could whakapapa to Ngäti Ruanui as well. Although Ngäti Ruanui derived much of the moral force of its claim from the same events, and could, in accordance with tikanga Mäori, embrace the Pakakohi claim, the claims of Pakakohi had "a clear historical credibility of their own" and the tradition about them was "carried by Pakakohi without being submerged in the larger Ruanui claim".

The tribunal regarded the claims of Tangahoe differently. It considered that once Tangahoe had effectively dropped "the discredited notion" that Ngäti Ruanui did not exist, the claimants had "little else ... to assert which marked their raupatu experience as distinct from that of the wider Ngäti Ruanui tribal group". While the tribunal noted that the possibility of distinctive Tangahoe claims had not been fully researched, on the evidence before it and from the members’ own knowledge of these matters, that proposition was "inherently unlikely". Thus, the Tangahoe Inc claim failed at that point.

With regard to the third question, the tribunal concluded that there was not sufficient evidence of support for a separate settlement in favour of Pakakohi Inc. An analysis of Ngäti Ruanui marae showed that one part of Ngäti Ruanui sprang from a Pakakohi tradition and the other part from a Tangahoe tradition. However, it was now very hard to distinguish between Pakakohi, Tangahoe and Ngäti Ruanui and the experience of the working party’s mandating process indicated that the once distinct strands might now have merged. While there was some attraction in Pakakohi Inc’s argument that a marae-based mandating system was unfair to Pakakohi because so many Pakakohi marae had been destroyed in the 1860s, Pakakohi Inc had failed to substantiate the argument with evidence of a groundswell of non-marae based support for its decision to stand apart.

Only Manutahi marae had aligned itself with Pakakohi Inc, but its stance "was simply not sufficient to prevent the Ngäti Ruanui settlement". In reaching this conclusion, the tribunal expressed "considerable sympathy" with the Crown’s preference to settle with iwi or "large natural groupings" and it quoted the Whanganui River tribunal: "While Mäori custom generally favours autonomy, it also recognises that, on occasion, the hapü must operate collectively." The tribunal also approved of the "bottom up" process by which the working party had generated "flax roots’ support for its mandate: "as a general principle … a conjoint marae and hapü approach to mandating as adopted by the working party for its particular circumstances is fundamentally sound".

For completeness sake, the tribunal commented on its impression of the modern level of support for a separate Tangahoe settlement. As with Pakakohi Inc, the tribunal did not consider that Tangahoe Inc had demonstrated sufficient support for a separate Tangahoe settlement. On the evidence provided, there was a sound basis for the Crown to conclude that Tangahoe Inc was merely a dissenting minority of the wider Tangahoe people, with the majority of Tangahoe choosing to work within the working party. Further, there was no strong evidence that Tangahoe Inc had undertaken proper mandate preparation. The claimants had conceded that the Tangahoe register of names was simply a list of people who could affiliate with Tangahoe and the 91 positive responses from its mail-out in 1997 was insufficient, without other evidence, to justify the "hard look" called for in the third question. To the contrary, the five hapü making up Tangahoe had all elected marae delegates to represent the hapü on the working party at the consultation hui held at various Tangahoe marae in 1996 and 1997. None of the evidence pointed to any error in the process by which the Crown assessed Tangahoe support for the working party or any misapplication of tikanga Mäori or any apparent irrationality in the Crown’s choice.

Accordingly, the tribunal was unable to recommend either a halt to the settlement or that the approach to settlement adopted by the Crown and the working party should be changed. However, it believed that the Pakakohi and Tangahoe traditions must be factored into the settlement deed, lest they be written out of Taranaki history. To that end, the tribunal urged the parties to continue discussions that had taken place. It believed that yet more could be done to reflect Pakakohi and Tangahoe traditions in the deed of settlement and it did not consider that the issue of distinct representation for Pakakohi and Tangahoe on the post-deed governance structure was necessarily closed.

 

Other courts & tribunals

Rapai Amber Te Hau v Gisborne District Legal Aid Committee

190/2000. LRA 136/2000. Legal Aid Review Authority. 19 October 2000. Middleton J, PT Kiely, KA Stringfellow

Ms Te Hau and Te Whänau o Rongomaiwahine Trust Inc, a charitable trust, issued proceedings in the High Court for a declaration that the Treaty of Waitangi Fisheries Commission had wrongly determined that the people of Rongomaiwahine tribe were members of Ngäti Kahungunu iwi for the purposes of the allocation of fishing quota. Ms Te Hau sought civil legal aid for the case and was declined.

The application was made on the basis that:

• The mana of all persons of Rongomaiwahine descent was affected by the decision of the fisheries commission not to "recognise Rongomaiwahine as an iwi".

• The trust represented all persons of Rongomaiwahine descent, but had no assets and could not contribute to the funding of the claim.

• Ms Te Hau was "uniquely positioned" and had a responsibility to challenge the decision as a living mokopuna of Huitau Te Hau, who had lodged a Parliamentary petition in 1913 which contained "the defining statement of the independent status of Te Rongomaiwahine Tribe".

• Ms Te Hau had no funds herself, and refusal of the application would seriously prejudice her right to bring the proceedings.

• While there were many others with a similar interest in the proceedings (possibly over 1200) the legal aid legislation cannot have intended that financial statements from all of those persons should be obtained.

Held: the appeal should be dismissed. Section 27 Legal Services Act 1991 forbids the grant of aid to any body of persons whether corporate or unincorporate. A specific exception is provided for legal aid for claims under the Treaty of Waitangi Act 1975.

Section 71(1) Legal Services Act 1991 provides that where there are other people with the same interest in the proceedings as the plaintiff it is "reasonable and proper" of them to contribute to the legal costs that a grant of aid would cover. Regulation 21 Legal Services Regulation 1991 accordingly requires applicants for legal aid for proceedings in which other persons have a similar interest to include details of those other persons to allow the subcommittee to decide whether aid should be granted or refused under s71(1).

Ms Te Hau had argued that s71/1991 and regulation 21/1991 meant that the subcommittee must ask itself whether, given the likely number of people who could potentially assist with the appeal, it was "reasonable and proper" to have to locate them and obtain financial details.

The review authority held that this was not the way in which those provisions should be read. The requirement was for applicants to first provide details of other persons with a similar interest in the proceedings, and then the subcommittee should consider whether it was reasonable and proper for them to contribute.

This application did not differ from similar appeals which had been rejected, namely:

• Judicial review proceedings to keep a kura kaupapa Mäori open, brought by an individual, but as representative of a group of parents (LRA decision 69/99).

• An appeal before the former Planning Tribunal (now Environment Court), where several individuals sought legal aid, but admitted that they acted for a wider group (LRA decision 28/96). In that case it was noted that proceedings before the Waitangi Tribunal are the only exemption to s27/1991 because "it became evident that Mäori were disadvantaged because of the nature of their land owning and other issues". It must then be assumed that no other exception was intended by Parliament.

Accordingly, the subcommittee in this case was under an obligation to ascertain from Ms Te Hau the names and particulars of any persons having the same interest in the proceedings and decide whether or not one or all of them should assist in meeting the costs of the hearing.

Commentary: previous decisions in this area and associated problems are discussed at Mäori LR February 2000 p2.

 

Other

Extracts From Speeches On The 25TH anniversary of the establishment of the Waitangi Tribunal

10 October 2000. Hon Margaret Wilson. Attorney-General, Minister of Labour, Minister in Charge of Treaty of Waitangi Negotiations, Associate Minister of Justice, Associate Minister of State Services

When the first bill was introduced in 1975, Mat Rata used a wonderful phrase to describe the Treaty. It would have done any professor of law proud. He called it "an instrument of mutuality". "Mutuality", in the legal sense, is a word first recorded in 1845 to mean "a condition of things under which two parties are mutually bound to perform certain reciprocal duties". It’s a good summation of the modern approach to the Treaty, stressing the status and duties of Mäori as citizens and the duty of the Crown to actively protect Mäori interests. ….

I want the government to be more successful in getting claims off the ground and into negotiation. This requires a style of active involvement …. encouraging claimants to get into negotiations and by removing whatever blocks can be identified.

Under this government … we are seeking to develop and build and maintain and nurture human relationships. We are not simply seeking judgements over property. We do not want only to see past wrongs redressed, we want stronger communities and a stronger nation as a result.

So we see the settlement of historical claims as a part of a much wider relationship between the government and Mäori, which encompasses our modern commitment to the Treaty and our commitment to closing the gaps.

Without doubt, claimant groups should always have the choice of having their claim heard by the Waitangi Tribunal before entering negotiations, and in some cases a Tribunal process may help address and resolve mandate or cross-claim issues. Its work continues, and will continue.

But I have written before of the old Päkehä saying that "Justice delayed is Justice denied".

I think all agree that the Tribunal process is too slow. It is important to look at the issue of resourcing, and its relationship to the way in which the tribunal is able to meet the demand for its services.….

It is also significant that such an important institution has rather unclear lines of accountability back to government.

[Waitangi Tribunal] historical decisions provide valuable background and statements about the truth of what has happened. But the decisions do not always get to the heart of what needs to be negotiated between the government and claimants. The principle that settlements should be negotiated between claimants and the government is one we have affirmed in our principles for Treaty settlement. And the requirement for the same body to deal with historical and modern claims of treaty breaches puts additional pressure on the Tribunal. ….

[A]s a result of the Tribunal’s work, there is widespread support across all parties for just settlements. The public attitude remains mixed. For that reason I am working on a proposal to try a series of town meetings aimed mainly at the Päkehä/European section of the community to discuss the historical Treaty settlement processes. As a result of the meetings, I hope more people will read and hear the compelling evidence of the things which gave rise to grievances in the past.

 

Chief Judge J V Williams. 11 October 2000. Has the Waitangi Tribunal served its purpose?

[T]here are those who, perceiving the increasing sophistication of the sector which I have just described, think the process is too expensive – a job creation scheme for lawyers, historians, policy analysts and consultancies. I do not think that. But I do believe we should remain ever vigilant in ensuring the process does not take on a life of its own and run away with the ball. In Canada, the United States and Australia governments and indigenous peoples are dealing with the same issues in their own context. The scale is vastly different. New Zealand’s attempts are typically number 8 fencing wire and baling twine by comparison. Most international indigenous leaders I have spoken to shake their heads in disbelief at the modest scale of funding for the claims process here in New Zealand. On balance I prefer our fiscally severe approach.

…. That said, I think our natural parsimony has been taken a little too far with regard to funding for the Tribunal. As I said at the "Building the Constitution Conference", it is difficult for the Tribunal to continue to discharge its function as "Conscience of the Nation" on its current budget.

…. The Tribunal is in a position to set the pace. The Tribunal is shifting its emphasis from being an investigator of facts only. …. The Tribunal can give certainty to mandate for claimant groups at the commencement of the investigation process. It can provide a process to deal with bona fide dissent within or amongst claimant groups before that dissent begins to undermine the possibility of settlement. It can encourage claimants and the Crown to engage over the leading issues in the claim before hearings commence, not after hearings have concluded. It can encourage the parties into structured negotiations before hearings through issue identification. Such negotiations need not stop the hearing process. The hearing process has its own independent justifications.

If that is combined with providing a transparent and open forum whereat Mäori can air their grievances and the Crown can make response, we will achieve two things. We will significantly speed the process. And we will enhance the durability of its result. Above all, there are two things on the Mäori side which threaten settlements – time and transparency. If the process takes too long, or is insufficiently public, the constituency will desert its leaders. …. Time and transparency are not necessarily in tension. It is not the case that transparency can only be achieved at the cost of time. The challenge for the Tribunal in its second quarter century will be to find a process which produces speed and durability while at all times keeping the parties, both Claimants and Crown, honest.….

[T]he transparent and public nature of the hearing process should be maintained even when the parties are in negotiation – it enhances the likelihood of settlement in my experience. Most districts should however be able to be heard on pre-identified evidence within four weeks. That is as opposed to the 10 to 15 weeks which tended to be the approach in the past.

....What is currently needed above all else is a sensitive and experienced keeper of the process. A keeper which understands the many perspectives which are now brought to bear on the settlement process. An institution whose purpose, the parties accept, is to facilitate constructive and structured engagement between the protagonists. The idea may not be universally popular. There are after all patches and minor empires to protect. In my view however the introduction of an agency which can give shape to engagement between the parties will speed the process enormously and enhance the durability of the settlements which should result. … the Tribunal should be funded to undertake this role.

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