May 2018 Māori Law Review

Whakatōhea mandate inquiry report – recognising a mandate to negotiate a settlement

Whakatōhea Mandate Inquiry Report

Waitangi Tribunal Wai 2662, 2018 (pre-publication version)

17 April 2018

In this report, the Tribunal determined that the Crown breached Treaty principles in entering settlement negotiations with a body representing the iwi Whakatōhea. In particular, the Tribunal found that the Crown's recognition of mandate conferred on that group "was not fair, reasonable, and made in good faith".

Download The Whakatōhea Mandate Inquiry Report (1.4 MB PDF).

Overview and result

Waitangi Tribunal - urgent inquiries - recognising a mandate to negotiate a settlement of historical claims - Whakatōhea
Date17 April 2018
CaseThe Whakatōhea Mandate Inquiry Report (1.4 MB PDF)
CitationWai 2662
TribunalWaitangi Tribunal
Member(s)Judge Michael Doogan, Dr Robyn Anderson, Basil Morrison CNZM, Associate Professor Tom Roa
Earlier/later decisionsThe Treaty of Waitangi Act 1975 - applications for urgency concerning the Whakatōhea Pre-Settlement Claims Trust Board Deed of Mandate - Wai 2662
Legislation citedTreaty of Waitangi Act 1975
Cases citedNew Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA); Waitangi Tribunal, Report of the Waitangi Tribunal on the Orakei Claim, 3rd ed (Welington: GP Publications, 1996); Te Runanga o Wharekauri Rekohu v Attorney-General [1993] 2 NZLR 301 (CA); Waitangi Tribunal, The Ngati Awa Settlement Cross Claims Report (Wellington: Legislation Direct, 2002); Waitangi Tribunal, The Tāmaki Makaurau Settlement Process Report (Wellington: Legislation Direct, 2007); Waitangi Tribunal, Te Arawa Mandate Report (Wellington: Legislation Direct, 2004); Waitangi Tribunal, Te Arawa Settlement Process Reports (Wellington: Legislation Direct, 2007); Waitangi Tribunal, The Ngāpuhi Mandate Inquiry Report (Wellington: Legislation Direct, 2015); Waitangi Tribunal, The Ngātiwai Mandate Inquiry Report (Wellington Legislation Direct, 2017); Waitangi Tribunal The East Coast Settlement Report (Wellington: Legislation Direct, 2010); Attorney-General v Mair [2009] NZCA 625; Waitangi Tribunal, Te Urewera, (Wellington: Legislation Direct, 2017); The Whakatōhea Raupatu Claim (1994) 69 Opotiki Minute Book 11 (69 OPO 11); Edwards - Whakatōhea (2018) 183 Waiariki Minute Book 169 (183 WAR 169); Waitangi Tribunal, Te Aroha Maunga settlement Process Report (Wellington: Legislation Direct, 2015).
Overview and resultThis inquiry concerned the Crown's recognition of the mandate of the Whakatōhea Pre-settlement Claims Trust (the Pre-settlement Trust) to negotiate the settlement of the historical Treaty of Waitangi claims of Whakatōhea. For various reasons, the claimants contended that the Crown had recognised a mandate that had not been properly obtained. The Waitangi Tribunal found that the Crown's recognition of the Pre-settlement Trust mandate was 'not fair, reasonable, and made in good faith' and recommended that the Whakatōhea negotiations be suspended until the issues identified in relation to the mandate can be addressed.

Background

This inquiry concerned the Crown's recognition of the mandate of the Whakatōhea Pre-settlement Claims Trust (the Pre-settlement Trust) to negotiate the settlement of the historical Treaty of Waitangi claims of Whakatōhea.

Whakatōhea's attempts to seek redress for Crown actions are longstanding. The iwi filed petitions in the 1910s and 1920s for the return of land and compensation for earlier land confiscations. These petitions led to several inquiries, a settlement in 1947 and the establishment of the Whakatōhea Māori Trust Board in 1952. More recently, an attempt was made to reach a settlement with the Crown in 1996 and, although a Crown offer of redress was made at that time, it was not ratified by the people of Whakatōhea.

The Whakatōhea Mandate Inquiry Report relates to a mandating process that began in 2003 as part of an attempt to reach a new settlement agreement. By 2010, there were three groups developing mandate strategies to negotiate with the Crown for the settlement of the Whakatōhea historical claims. In 2013 the Whakatōhea Raupatu Working Party (the Raupatu Working Group) and Tū Ake Whakatōhea Collective (Tū Ake) each submitted a mandate strategy to the Crown for consideration, Tū Ake's strategy proposed establishing the Pre-settlement Trust to seek a mandate. After going through several iterations in response to consultation, Tū Ake's mandate strategy was formally presented to Te Puni Kōkiri in November 2015. Voting on the mandate took place between 6 May and 3 June 2016 and the Pre-settlement Trust Deed of Mandate was recognised by the Crown on 14 December 2016.

On 30 May 2016, the Waitangi Tribunal received an application for an urgent inquiry into issues about the proposed recognition of the Pre-settlement Trust Deed of Mandate. A further 12 applications were received after recognition in January and February 2017 (though one was subsequently withdrawn) and on 28 July 2017, the Tribunal granted an urgent inquiry.

The claimants contended that the Crown had recognised a mandate that had not been properly obtained, arguing that there had been considerable and sustained opposition to both Tū Ake and to the Pre-settlement Trust. The claimants objected to the recognition of the Pre-settlement Trust mandate on a number of grounds, including (see pp 7-8):

  • The mandate was inconsistent with Whakatōhea tikanga, was not hapū driven and has undermined rangatiratanga;
  • The mandate vote was flawed and the results did not indicate which hapū supported the mandate;
  • The Crown had not acted in good faith when it recognised the mandate at a time when several of the claimants had initiated the withdrawal process under the Deed of Mandate;
  • Attempts to advance 'a parallel but non-competing mandate' were never properly acknowledged by the Crown;
  • Some claimants alleged people were excluded from participating in the mandating process; and
  • Other claimants were concerned about the inclusion of certain claims in the mandate.

In response, the Crown submitted that the mandate vote showed significant levels of support for the Pre-settlement Trust Mandate, the Pre-settlement Trust structure provided appropriately for hapū rangatiratanga, and that Tū Ake had amended its strategy over time to respond to concerns raised by Whakatōhea (see p 8).

Discussion

On 22 September 2017, the Tribunal produced a statement of issues for this inquiry. Those issues are (at p 9):

  1. Was the Crown's recognition of the Pre-settlement Trust Deed of Mandate fair, reasonable and made in good faith? In particular:
    • Was it reasonable for the Crown to rely on the Whakatōhea Māori Trust Board register?
    • Did the Crown sufficiently inform itself of the levels of support for and opposition to the Pre-settlement Trust's mandate prior to its recognition?
    • Was there sufficient support to warrant mandate recognition?
    • Should the Crown have considered reasonable alternative mandating structures to the Pre-settlement Trust? And if so, what were they?
    • Is it appropriate for Ūpokorehe to be included in the Pre-settlement Trust Deed of Mandate?
    • Is it appropriate for Te Whānau a Mokomoko to be included in the Pre-settlement Trust Deed of Mandate?
  2. Does the Pre-settlement Trust Mandate make proper provision for the hapū of Whakatōhea? Are any hapū prejudiced by reason of inclusion or omission?
  3. Are the remedies available under the Deed of Mandate, particularly the withdrawal mechanism, fair? Is there appropriate recognition and protection of hapū rangatiratanga?
  4. Is the Crown's decision to continue to recognise the mandate of the Pre-settlement Trust fair and reasonable, in light of the substantial and sustained level of opposition to it?
  5. Do any of the Crown's policies, practices, acts or omissions in relation to the matters set out at 1-4 above breach the principles of the Treaty of Waitangi?
  6. Have any of the claimants been prejudiced by any such breaches? How might any such breaches be remedied?

The Waitangi Tribunal found that the Crown's recognition of the Pre-settlement Trust mandate was 'not fair, reasonable, and made in good faith' (at p 85). The Tribunal determined that the Crown had 'prioritised its political objective of concluding settlements by mid-2020 over a process that was fair to Whakatōhea' (at p 85). Specifically, the Tribunal found that discrepancies in the Whakatōhea Māori Trust Board register meant that it was not reasonable for the Crown to rely on the use by those promoting the mandate of the Trust Board's register for the purposes of the mandate vote in May 2016 (p 87).

The Tribunal also found other problems with the Crown's assessment of the mandate. The Tribunal was of the view that the Crown did not sufficiently inform itself of the levels of support for the mandate. 'Relative support for the mandate was overstated and opposition understated' (p 88). When considering the cumulative effect of flaws in the mandating process, the Tribunal determined that 'it was not safe for the Crown to conclude in December 2016 that there was sufficient support to warrant mandate recognition' (p 88).

The Tribunal did not make specific findings on whether the Crown ought to have considered alternative mandating structures and what those alternatives might have been (p 89). Particular consideration is given to the appropriateness of including Ūpokorehe and Te Whānau a Mokomoko to be included in the mandate. The Tribunal identified that the issues in relation to Ūpokorehe related to more general problems with the mandating process (p 90). In relation to Te Whānau a Mokomoko, the Tribunal recommended that the Crown and the Mokomoko whānau engage in further discussion as to how their claims ought to be addressed (p 90).

The Tribunal found that the Pre-settlement Trust Mandate did not make proper provision for the hapū of Whakatōhea (p 91):

Hapū rangatiratanga was not appropriately recognised in the way the mandate vote was structured. As we see it, the tikanga that Whakatōhea themselves endorsed was one by which the election of representatives and approval of a deed of mandate would occur through hapū postal and web voting, with votes recorded on a hapū basis. It is not clear why this was not the process proposed in the final Tū Ake mandate strategy. There is little evidence that the Crown's large natural group policy should supplant or override respect for hapū rangatiratanga and Whakatōhea tikanga.

The Tribunal gave careful consideration to the withdrawal mechanism available under the Deed of Mandate. The Crown had conceded to the Tribunal that there was some unfairness in the withdrawal process, relating to the way in which the threshold to trigger a withdrawal is calculated. However, the Tribunal found that there were a range of problems with the withdrawal mechanism that ought to be fixed. Of particular concern to the Tribunal was that 'the withdrawal mechanism fails to clearly set out a process by which individual hapū can withdraw support from the Pre-settlement Trust Deed of Mandate, further exacerbating some of the underlying problems with Deed of Mandate' (p 52).

The Tribunal recommended that the Whakatōhea negotiations be suspended until the issues identified in relation to the mandate can be addressed and, specifically, until Whakatōhea hapū have had an opportunity, via a robust and transparent process, to decide how they wish to proceed (p 97).

Comment

This is not the first time that Crown policy and practice relating to the recognition of a mandate to negotiate the settlement of historical Treaty claims has been challenged. If the Crown is going to get this right, it needs to seriously engage with tikanga Māori and Māori legal traditions in the settlement process.

'Mandating' is an important part of the Treaty settlement process. It is vital that those who say they have the authority to negotiate the settlement of the historical claims of their community do, in fact, hold that mandate from their people. The Crown acknowledges this and has established processes for determining whether or not to recognise the mandate of a group seeking to enter into negotiations. So, why is the Crown still doing things here which is not fair, reasonable, or undertaken in good faith?

This particular issue relating to mandate stems from a broader flaw in the Crown's approach to Treaty settlements, that is, a failure to properly engage with Māori legal traditions in this process. In the Whakatōhea Mandate Inquiry Report, the Tribunal identified one of the problems with the Crown's approach was that there was insufficient weight placed upon the objections of a number of smaller hapū. Despite the fact that there were well-known and long-standing differences of opinion about settlement negotiations within Whakatōhea, and that the hapū of Whakatōhea has explicitly stated that the process for settling their claims needed to be driven by the hapū, the Crown chose to look at the support of the individual members rather than the support (or otherwise) of the various hapū. The Crown could hardly have been unaware of the problems with this approach. The Tribunal raised similar criticisms of Crown process in the Ngāpuhi Mandate Inquiry Report in 2015. The Tribunal has made recommendations to the Crown, across a number of reports, about how to address flaws in the mandating process. For example, it has recommended that the Crown take a more active role in monitoring the mandating strategy; that it must be impartial in its dealings with different Māori groups and preserve, not damage relationships between them; and that it ought to ascertain the support, not only of individuals, but of hapū.

Although, in each of the various mandate reports, the Tribunal has focused on addressing the particular flaws in each case, there is an overarching issue: a failure to prioritise Māori legal traditions. If the Crown had given greater attention to the tikanga of, for example, Whakatōhea and Ngāpuhi, it might well have behaved differently in both these negotiations. The ongoing relationships between different communities within the settling groups would certainly have been given greater priority. In relation to Whakatōhea, the Tribunal took the view that "the Crown has focused too much on the goal of achieving a speedy settlement, including meeting arbitrary deadlines for key milestones, to the detriment of Whakatōhea."

In the Ngāpuhi Mandate Inquiry Report, the Tribunal offered the following concluding observations:

...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.

Tikanga and Māori legal traditions must be central to the settlement process. If the Crown recognises this then it can avoid creating further grievances through issues such as the problematic mandate process identified in the Whakatōhea negotiations. That will provide the foundation for durable settlements that contribute to the goals of reconciliation and make good on the promise of the Treaty partnership.