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The Ngātiwai Mandate Inquiry Report

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Downloaded from www.waitangitribunal.govt.nz T H E N G Ā T I W A I M A N D A T E I N Q U I R Y R E P O R T Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz t h e N g ā t i w a i M a n d a t e I n q u i r y R e p o r t W A I 2 5 6 1 W A I T A N G I T R I B U N A L R E P O R T 2 0 1 7 Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz The cover design by Cliff Whiting invokes the signing of the Treaty of Waitangi and the consequent interwoven development of Māori and Pākehā history in New Zealand as it continuously unfolds in a pattern not yet completely known National Library of New Zealand Cataloguing-in-Publication Data A catalogue record for this book is available from the National Library of New Zealand ISBN 978-1-86956-327-1 (pbk) ISBN 978-1-86956-328-8 (PDF) www.waitangitribunal.govt.nz Typeset by the Waitangi Tribunal Published 2017 by Legislation Direct, Lower Hutt, New Zealand Printed by Printlink, Lower Hutt, New Zealand 21 20 19 18 17 5 4 3 2 1 Set in Adobe Minion Pro and Cronos Pro Opticals Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz HE MIHI KI A TE RANGI KARAITIANA MCGARVEY Tātai whetū ki te rangi, mau tonu, mau tonu Tātai tangata ki te whenua, ngaro noa, ngaro noa Te Tama a Tūhoe Pōtiki, te tama a Ngāti Whakaue Kua ngaro rā koe ki te pū o mahara Kua wahangū te reo whakapākehā o te Rōpū Whakamana i te Tiriti o Waitangi Kua haumūmū te tohunga reo Māori o te Pāremata Kua ngū te manu tatangi whakatiriripa o kupu whakarākei, o rerenga waiwaiā Tēnei mātou ka auē, tēnei mātou ka auhi E Rangi kua ngaro rā koe i te hinganga o te tini, i te moenga o te mano He aha mā mātou ? He tangi, he mihi, he poroporoaki Nā reira e te hoa, e moe, i te moenga roa, ki reira okioki ai While the starry hosts above remain unchanged and unchanging The earthly world changes inevitably with the losses of precious, loved ones The son of Tūhoe Pōtiki, the son of Ngāti Whakaue You have been lost to the void of memories The Waitangi Tribunal’s translator has been silenced Parliament’s expert interpreter speaks no more The mellifluous bird of words adorned who epitomises excellence is silent For you we cry in distress Rangi you who has departed to the assembly of the hundreds and the congregation of the thousands What are we left to do ? Grieve, acknowledge, farewell Therefore dear friend, rest now, rest in peace v Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz CONTENTS Letter of transmittal . ix chapter 1 : Introduction to the Urgent Inquiry . 1 1 .1 What is at issue ? . 1 1 .2 Te iwi o Ngātiwai . .. 1 1 .3 Events leading to the urgent inquiry . 4 1 .4 Granting the inquiry . 6 1 .5 The parties to the inquiry . 7 1 .5 .1 The claimants . 7 1 .5 .2 The Crown . 8 1 .5 .3 The interested parties . 8 1 .6 The issues for inquiry and the hearings . 9 1 .7 Our approach to the issues in this report . 9 Chapter 2 : The Parties’ Positions on the Inquiry Issues . .. 13 2 .1 Introduction . 13 2 .2 Claimant definition in the deed of mandate and the recognition of hapū . 13 2 .2 .1 The claimants . 13 2 .2 .2 The Crown . 14 2 .2 .3 The Ngātiwai Trust Board . .. 14 2 .3 Representation and accountability . 15 2 .3 .1 The claimants . 15 2 .3 .2 The Crown . 15 2 .3 .3 The Ngātiwai Trust Board . .. 16 2 .4 Did hapū consent to the mandate ? . 16 2 .4 .1 The claimants . 16 2 .4 .2 The Crown . 17 2 .4 .3 The Ngātiwai Trust Board . .. 18 2 .5 Withdrawal of consent . 18 2 .5 .1 The claimants . 18 2 .5 .2 The Crown . 18 2 .5 .3 The Ngātiwai Trust Board . .. 19 2 .6 Did the Crown effectively protect the interests of the groups involved in mandating ? . 19 2 .6 .1 The claimants . 19 2 .6 .2 The Crown . 20 2 .6 .3 The Ngātiwai Trust Board . .. 21 vii Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Contents Chapter 3 : Treaty Principles and Standards . 23 3 .1 Introduction . 23 3 .2 Previous mandate inquiries . 23 3 .2 .1 The Pakakohi and Tangahoe Settlement Claims Report (2000) . 23 3 .2 .2 The Te Arawa mandate reports (2004, 2005, 2007) . 24 3 .2 .3 The Tāmaki Makaurau Settlement Process Report (2007) . .. 24 3 .2 .4 The East Coast Settlement Report (2010) . .. 25 3 .2 .5 The Ngāpuhi Mandate Inquiry Report (2015) . 25 3 .3 The principles of partnership and equal treatment and the duty of active protection . 26 3 .3 .1 Tino rangatiratanga, mana, and decision-making . 27 3 .3 .2 Tikanga and whanaungatanga . 27 3 .4 Treaty principles, tino rangatiratanga, and Ngātiwai . 28 3 .4 .1 Rangatiratanga guided by tikanga . 28 3 .4 .2 Te iwi o Ngātiwai : iwi and hapū . 29 3 .4 .3 The ‘locus of rangatiratanga’ within Ngātiwai . 31 3 .4 .4 Rangatiratanga is not held only by hapū . 33 3 .5 Assessing the Crown’s active protection of tino rangatiratanga . 34 Chapter 4 : Is the Deed of Mandate Adequately Representative and Accountable to Hapū ? . 39 4 .1 Introduction . 39 4 .2 Claimant definition in the deed of mandate and the recognition of hapū . 39 4 .2 .1 Does the Deed of Mandate list of hapū really reflect Ngātiwai ? . 39 4 .2 .2 The trust board research into whakapapa, hapū, and marae for mandate purposes . 43 4 .3 Representation and accountability . 44 4 .3 .1 The trust deed . .. 44 4 .3 .2 Attempts to change the trust deed . 45 4 .3 .3 Do marae represent hapū ? . 46 4 .3 .4 The purpose of the additional advisory bodies . 47 4 .3 .5 Is a different structure possible ? . 48 4 .3 .6 Does the trust board provide adequate representation and accountability to provide for the exercise of hapū rangatiratanga ? . 49 4 .4 Did hapū consent to the mandate ? . 51 4 .4 .1 Did the vote demonstrate hapū consent ? . 51 4 .4 .2 The vote and the submissions process . 52 viii Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Contents 4 .4 .3 What obligation did the Crown have to ascertain hapū support for the mandate ? . 53 4 .5 Withdrawal of consent . 55 4 .5 .1 The withdrawal mechanism . 55 4 .5 .2 Is the withdrawal mechanism workable ? . 56 4 .5 .3 Mandate funding . 56 4 .5 .4 Hapū withdrawal . 57 4 .6 Representation, accountability, and consent : conclusion . 58 Chapter 5 : The Crown’s Actions in the Mandating Process . .. 63 5 .1 Introduction . 63 5 .2 The mandate strategy and the vote . .. 63 5 .2 .1 The steps taken towards developing a mandate strategy . 63 5 .2 .2 The Crown’s role in the development of the mandate strategy . 65 5 .2 .3 The vote . 67 5 .3 Advertising the mandate and the submissions process . 67 5 .3 .1 The steps taken towards advertising the mandate . .. 67 5 .3 .2 The submissions process . 68 5 .3 .3 The trust board’s engagement plan . 69 5 .3 .4 Crown efforts to resolve problems identified with the mandate . 70 5 .4 The decision to recognise the mandate . 71 5 .5 Crown actions : conclusion . 72 Chapter 6 : Findings and Recommendations . .. 77 6 .1 Introduction . 77 6 .2 Principles of the Treaty – active protection . 77 6 .2 .1 Accelerated settlement prioritised over active protection . 78 6 .2 .2 Crown errors damaged whanaungatanga . 79 6 .2 .3 Ngātiwai Trust Board structure not fit for purpose . 80 6 .2 .4 Hapū did not consent to inclusion ; no workable withdrawal mechanism . 81 6 .3 Findings . 82 6 .4 The prejudice . 82 6 .5 Recommendations . 83 6 .5 .1 Mediation . 84 6 .5 .2 The longer route . 84 6 .5 .3 Matters to resolve . 84 6 .5 .4 Finally . 84 ix Downloaded from www.waitangitribunal.govt.nz Downloaded from www.waitangitribunal.govt.nz Contents Appendix : Select Record.
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