September 2015 Māori Law Review

Protecting hapū rangatiratanga – Ngāpuhi Mandate Inquiry – Wai 2490

Ngāpuhi Mandate Inquiry Report

Waitangi Tribunal (Wai 2490, 2015)

4 September 2015

The Waitangi Tribunal has upheld claims that the Crown breached the principles of the Treaty of Waitangi in recognising the mandate of a negotiating body, Tūhoronuku, to enter settlement negotiations with the Crown about historical claims on behalf of all members of Ngāpuhi.

Download the pre-publication version of the Ngāpuhi Mandate Inquiry Report.

Overview and result

Protecting hapū rangatiratanga - Ngāpuhi Mandate Inquiry
Date4 September 2015
CaseNgāpuhi Mandate Inquiry Report
CitationWai 2490, 2015
TribunalWaitangi Tribunal
Member(s)Judge Sarah Reeves (Presiding), Robyn Anderson, Tureiti Lady Moxon, Kihi Ngatai
Earlier/later decisionsWai 2341, Wai 2429, Wai 2431, Wai 2433, Wai 2434, Wai 2435, Wai 2436, Wai 2437, Wai 2438, Wai 2440, Wai 2442, and Wai 2443, 12 September 2014
Legislation citedTreaty of Waitangi Act 1975, preamble, s 6(4)
Cases citedWaitangi Tribunal, He Whakaputanga me te Tiriti/The Declaration and the Treaty : The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014); Waitangi Tribunal, Te Whanau o Waipareira Report (Wai 414, 1998) (see (1998) August Māori LR); Waitangi Tribunal, The Pakakohi and Tangahoe Settlement Claims Report (Wai 142, Wai 758, 2000); Waitangi Tribunal, The Te Arawa Mandate Report (Wai 1150, 2004); Waitangi Tribunal, The Te Arawa Mandate Report : Te Wahanga Tuarua (Wai 1150, 2005); Waitangi Tribunal, The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007); Waitangi Tribunal, The East Coast Settlement Report (Wai 2190, 2010); CREEDNZ v Governor-General [1982] 2 NZLR 172; The Te Arawa Settlement Process Reports (Wai 1353, 2007); Waitangi Tribunal, Whaia Te Mana Motuhake : In Pursuit of Mana Motuhake. Report on the Māori Community Development Act Claim (Wai 2417, 2014); New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 (CA); Waitangi Tribuna, Report of the Waitangi Tribunal on the Manukau Claim (Wai 8, 1985); Waitangi Tribunal, Report of the Waitangi Tribunal on Te Reo Maori (Wai 11, 1986); Waitangi Tribunal, The Ngai Tahu Sea Fisheries Report (Wai 27, 1992); Waitangi Tribunal, The Ngawha Geothermal Resource Report (Wai 304, 1993); Waitangi Tribunal, Tauranga Moana: 1886–2006 Vol 1 (Wai 215, 2010); Tauranga Moana: 1886–2006 Vol 2 (Wai 215, 2010); Waitangi Tribunal, Report of the Waitangi Tribunal on the Orakei Claim (Wai 9, 1987); Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim (Wai 22, 1988); Waitangi Tribunal, Te Tau Ihu o te Waka a Maui: Preliminary Report on Customary Rights in the Northern South Island (Wai 785 Prelim 2, 2007) (see (2007) September Māori LR); Waitangi Tribunal, Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims Vol 1 (Wai 814, 2004); Waitangi Tribunal, Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims Vol 2 (Wai 814, 2004) (see (2005) July Māori LR; (2005) August Māori LR); Waitangi Tribunal, The Ngāti Rangiteaorere Claim Report (Wai 32, 1990); Waitangi Tribunal, The Ngāti Awa Raupatu Report (Wai 46, 1999); Waitangi Tribunal, The Whanganui River Report (Wai 167, 1999); Haronga v Waitangi Tribunal [2011] SCNZ 53
Overview and resultThe Waitangi Tribunal upheld claims that the Crown breached the principles of the Treaty of Waitangi in recognising the mandate of a negotiating body, Tūhoronuku, to enter settlement negotiations with the Crown about historical claims on behalf of all members of Ngāpuhi. The Tribunal examined how Tūhoronuku purported to represent hapū and its ability to reflect their views and decisions. The Tribunal concluded that the Crown had an obligation to protect the ability of hapū to exercise their rangatiratanga in deciding how and by whom they would be represented in settlement negotiations. The Crown failed to do this when it recognised the Tūhoronuku mandate without clear evidence of hapū support. Further, the structure and processes of Tūhoronuku deny hapū any effective means of withdrawing from it or exerting control over how it represents them. The Tribunal recommended that the Crown delay negotiations to give Ngāpuhi an opportunity to address the flaws the Tribunal identified. There was no need to repeat the mandating process but Ngāpuhi hapū should be given the opportunity to confirm whether they wish to be represented in settlement negotiations by Tūhoronuku.

Background

In February 2014 the Crown recognised a mandate submitted by the Tūhoronuku Independent Mandated Authority (the Tūhoronuku IMA). The mandate obtained and submitted for recognition was obtained from Ngāpuhi members to enter negotiations to settle Treaty of Waitangi claims about historical events (defined to mean events before 21 September 1992). The proposed negotiations were to secure a settlement of these grievances for all of Ngāpuhi.

Ngāpuhi is recognised as the largest tribe in Aotearoa New Zealand. The iwi lands are in Te Tai Tokerau (Northland) and the tribe has more than 125,000 affiliates as measured by census data (2013).

This urgent inquiry by the Tribunal came about after some Ngāpuhi claimants, acting in particular on behalf of Ngāpuhi hapū and collectives of hapū, objected to the approach taken by Tūhoronuku in claiming to set out to negotiate a settlement for all of Ngāpuhi. The Ngāpuhi hapū who sought this inquiry did not accept that Tūhoronuku had obtained authority to represent them. (See (2014) November Māori LR.)

The major issues in the inquiry included whether the Crown had predetermined its decision to recognise the Tūhoronuku mandate and whether the Crown had recognised Tūhoronuku as holding a mandate for all Ngāpuhi members without ensuring this was supported by hapū (the sub-tribes of Ngāpuhi). The claimants argued that the Crown's recognition of the Tūhoronuku mandate had the effect of undermining hapū rangatiratanga.

The competing positions were summarised by the Tribunal as follows (at 1.2):

The two sides of the argument also reflect different socio-political values. The Tūhoronuku IMA (and the Crown) rely on a one-person one-vote democratic process as demonstrating support for a mandate that has been properly recognised as reflecting the majority of Ngāpuhi individuals. The Tūhoronuku IMA says the claimants are a ‘loud minority’ and that there will always be those who are unhappy with the outcome of a voting process. Supporters of the Tūhoronuku IMA see it as representing the ‘modern-day demographics of Ngāpuhi’, including ‘those Ngāpuhi who are not actively engaged presently, but who stand to benefit from the settlement of past wrongs’.

The claimants say that the hapū, as the basic building blocks of Ngāpuhi, must decide important issues regarding the settlement of their claims. They argue that their tikanga is not one of ‘democracy’ in western terms, but that it is perfectly capable of reaching consensus by requiring participation, discussion kanohi ki te kanohi, and resolution of differences on matters of shared concern. They see an outcome based on a majority vote by individuals, without establishing hapū consent, as undermining their rangatiratanga, especially when the issue is the crucial one of mandate to negotiate a Treaty settlement. In their view, this is not the way forward to an enduring settlement that will empower future generations (see chapter 2).

The claims were heard at Waitangi in December 2014 and Wellington in March 2015.

Discussion

Did the Crown predetermine its decision to recognise the mandate?

On the first issue the Tribunal found that the Crown did not predetermine its decision to recognise Tūhoronuku's mandate.

The Tribunal found the Crown’s involvement in the mandating process was regular, genuine, and represented high-level engagement over a period of years.

The Tribunal said that there was ample evidence of the parties engaging in good faith to accommodate differences.

Did the Crown recognise Tūhoronuku's mandate for all Ngāpuhi members without ensuring this was supported by hapū?

On the second issue the Tribunal determined that any entity seeking to represent Ngāpuhi in settlement negotiations had to produce clear evidence of hapū support for its mandate. The Tribunal found that this is because Ngāpuhi is characterised by strong autonomous constituent hapū.

Because the importance of hapū autonomy was clear, the Tribunal found that the Crown had a primary Treaty duty to actively protect the rangatiratanga of Ngāpuhi hapū when the Crown took decisions to recognise how and by whom those hapū would be represented in settlement negotiations.

The Tribunal found that the Crown did not meet this duty when it recognised the Tūhoronuku mandate without clear evidence showing that hapū supported that mandate.

The Tribunal agreed therefore that recognition of Tūhoronuku's mandate undermined the rangatiratanga of hapū.

The Tribunal also acknowledged that the structure and processes of Tūhoronuku undermined hapū and the ability of hapū to make decisions about whether and how to settle Treaty of Waitangi claims about historical events.

Recommendations

The Tribunal found that Ngāpuhi hapū were prejudiced when the Crown had breached the principles of the Treaty of Waitangi in recognising the Tūhoronuku mandate for all Ngāpuhi members without ensuring this was supported by hapū.

This meant that under the Treaty of Waitangi Act 1975 the claim was well-founded and the Tribunal was empowered to make recommendations. Recommendations can be about the steps the Crown should take to compensate for or remove the prejudice found to exist or to prevent others from suffering similar prejudice.

The Tribunal did not recommend that a wholly new mandate process should take place.

Nor did the Tribunal recommend that the Crown should withdraw its recognition of the mandate.

The Tribunal accepted that Ngāpuhi members have given broad support for settlement negotiations.

The Tribunal's recommendations are tailored to address the flaws it found in the way the Tūhoronuku mandate was obtained. The Tribunal took the approach of recommending steps that could lead to Tūhoronuku being mandated to also lead negotiations on behalf of Ngāpuhi hapū.

The Tribunal recommended that the Crown halt for the meantime negotiations with Tūhoronuku to ensure there was an opportunity for Ngāpuhi to address the issues the Tribunal reported on.

The Tribunal considered it was important that Ngāpuhi hapū are given an opportunity to decide whether Tūhoronuku will represent them.

Here is the full text of the Tribunal's recommendations (at 5.3.2):

The Tribunal has grappled with the complexity of the situation presented in this inquiry. Ngāpuhi is New Zealand’s largest and most dispersed iwi and also one of its poorest. That there is a desire for settlement of historical grievances as well as an urgent need is generally agreed. We have found that the role of hapū is fundamental to Ngāpuhi tikanga, and hapū must play a decisive role in determining how and by whom the settlement of their historical Treaty claims will be negotiated. We have concluded that the Crown’s decision to recognise the Tūhoronuku IMA is in breach of its Treaty duty of active protection because that entity, as it is presently structured, is incapable of properly representing the interests and aspirations of hapū in negotiations with the Crown. We find the claims to be well-founded.

Having reached this conclusion, the Tribunal has several options as to the recommendations we could make. We could recommend that the Crown withdraw its recognition of the mandate, and that the mandating process be re-run. Although this was urged on us by some claimants, we consider that this would be neither a practical nor a constructive outcome. We recognise there is broad support for settlement within Ngāpuhi, and momentum towards settlement should not be stopped dead in its tracks. Although we consider the flaws we have identified in the Tūhoronuku IMA structure to be fundamental, we also consider they can be remedied without restarting the entire mandating process. Once remedied, the Tūhoronuku IMA will be capable of leading a negotiation on behalf of hapū. There are seven key remedial actions that need to take place.

First, the Crown must halt its negotiations with the Tūhoronuku IMA to give Ngāpuhi necessary breathing space to work through the issues that have been identified.

Secondly, hapū must be able to determine with their members whether they wish to be represented by the Tūhoronuku IMA.

Thirdly, those hapū that wish to be represented by the Tūhoronuku IMA must be able to review and confirm or otherwise the selection of their hapū kaikōrero and hapū representatives, so that each hapū kaikōrero has the support of their hapū.

Fourthly, Ngāpuhi hapū should have further discussions on the appropriate level of hapū representation on the board of the Tūhoronuku IMA.

Fifthly, the Crown should require as a condition of continued mandate recognition that a clear majority of hapū kaikōrero remain involved in the Tūhoronuku IMA.

Sixthly, there must be a workable withdrawal mechanism for hapū who do not wish to continue to be represented by the Tūhoronuku IMA.

Finally, if they exercise their choice to withdraw, hapū must be given the opportunity and support to form their own large natural groups.

We have weighed this approach against likely prejudice to those individuals and hapū who presently support the Tūhoronuku IMA and want the current negotiations to continue without pause. We acknowledge that the process we recommend will take time and could potentially delay settlement. We also acknowledge there is a risk that some groups will choose to leave the mandated structure, but we consider it is crucial that the Crown and Ngāpuhi take the opportunity now to resolve the fundamental issues we have identified, before negotiations proceed further. Leaving those issues unresolved will continue to have a corrosive effect on relationships both within Ngāpuhi and with the Crown. Hapū who are included in the mandate must want to be there and not feel they have been coerced or trapped. While the Crown submitted that a withdrawal mechanism would undermine the existing mandate, it also assured us there is significant support for the Tūhoronuku IMA among hapū. If this is indeed the case, then there should not be many groups who might choose to withdraw from the mandate. But enabling the mandate to be tested in this way may well encourage more hapū to participate actively and have input into the negotiations process, resulting in a stronger mandate and ultimately a settlement which is more likely to be robust, fair and enduring.

We recommend that the Crown’s negotiations with the Tūhoronuku IMA must now be put on hold until such time as the Crown can be satisfied of the following matters, which we discuss below:

  • that Ngāpuhi hapū have been given the opportunity to discuss and confirm or otherwise whether they wish to be represented by the Tūhoronuku IMA in the negotiation of their historical Treaty claims;
  • that hapū who wish to be represented by the Tūhoronuku IMA have been given the opportunity to confirm or otherwise their hapū kaikōrero and the hapū representatives on the Tūhoronuku IMA board;
  • that Ngāpuhi hapū have been given the opportunity to discuss and confirm or otherwise whether they consider there is an appropriate level of hapū representation on the Tūhoronuku IMA Board;
  • that the Tūhoronuku IMA deed of mandate has been amended to include a workable withdrawal mechanism for any hapū which does not wish to continue to be represented by the Tūhoronuku IMA; and
  • in addition, the Crown should require as a condition of continued mandate recognition that a clear majority of hapū kaikōrero remain involved in the Tūhoronuku IMA.

Finally, we recommend that the Crown support hapū which withdraw from the Tūhoronuku IMA to enter into negotiations with the Crown to settle their Treaty claims as soon as possible and preferably at the same time as other Ngāpuhi negotiations. This will involve the Crown supporting and encouraging hapū, through the provision of information and financial support, to form into large natural group(s), and to obtain mandate(s) from their members.

Repairing and restoring the position of tribes in society

The Tribunal offered the following concluding remarks (at 5.3.4):

Many of the witnesses appearing in opposition to the claimants expressed frustration at the possibility of further delay before proceeding to settlement. Yet it is crucial to the ultimate success of the settlement process that the negotiating structure is robust and has the full support of those whom it claims to represent, and whose grievances it intends to put to rest. There is a real danger, if the wairua is not there, if the focus is more on economic stimulus than on healing the injuries of the past, if tikanga is pushed to one side to remove what are perceived as impediments to progress, that the opposite will happen: that further grievances will be caused. The Crown must approach the task of negotiating settlement not only in a timely fashion, but also with a spirit of generosity and, as claimant counsel argued, ‘with care, with sympathy, and ... with humility’. It is clear that, in order for the Treaty relationship to be repaired, hapū must be returned to a position of authority. For this to happen, it is essential that hapū rangatiratanga and hapū tikanga are respected, protected and enhanced in mandating processes. In addition to our formal recommendations, we hope that all parties will build on the very real progress that has already been made and continue to strive for the restoration of Ngāpuhi’s social, cultural and economic position, the Crown’s honour, and the Treaty relationship itself.