T H E N G Ā P U H I M A N D A T E I N Q U I R Y R E P O R T Embargoed till 12 noon Friday 11 September 2015 For Crown, claimants, and media only This embargoed copy of the Waitangi Tribunal’sNgāpuhi Mandate Inquiry Report : Pre-publication Version has been supplied to the Crown, claimants, and media in order that they may familiarise themselves with its findings prior to it being publicly released. This report is not to be photocopied, scanned, or otherwise physically or electronically reproduced, nor is it to be publicly distributed or circulated outside the parties on whom it is served. Embargoed Embargoed Embargoed T H E NEmbargoed G Ā P U H I M A N D A T E I N Q U I R Y R E P O R T P r e - p u b l i c a t i o n V e r s i o n Embargoed Embargoed W A I 2 4 9 0 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 5 Embargoed Embargoed Embargoed Typeset 2015 by the Waitangi Tribunal, Wellington, New Zealand Set in Adobe Minion Pro and Cronos Pro Opticals EmbargoedCONTENTS Letter of transmittal ix chapter 1 : Introduction to the Urgent Inquiry 1 1 1 The urgent inquiry 1 1 1 1 Introduction 1 1 1 2 The mandating process 2 1 1 3 The Tūhoronuku IMA 3 1 1 4 The application for urgency 3 1 1 5 The issues for inquiry and the hearings 5 1 2 The path to settlement 6 1 3 Who are Ngāpuhi ? 8 1 4 The parties to this inquiry 12 1 4 1 TheEmbargoed claimants and their claims 12 1 4 2 The Crown 15 1 4 3 The interested parties 16 1 5 What are the fundamental issues ? 17 Chapter 2 : Treaty Principles and Standards 21 2 1 Introduction 21 2 2 The Tribunal’s jurisdiction 21 2 3 Previous mandate inquiries 22 2 3 1 The Pakakohi and Tangahoe Settlement Claims Report (2000) 23 2 3 2 The Te Arawa mandate reports (2004, 2005, 2007) 24 2 3 3 The East Coast Settlement Report (2010) 25 2 4 Treaty principles relevant to this inquiry 26 2 5 The duty of active protection 27 2 5 1 RangatiratangaEmbargoed and tikanga 29 2 5 2 Hapū rangatiratanga and tikanga within Ngāpuhi 32 2 6 The Crown’s obligations to Ngāpuhi 37 chapter 3 : The Parties’ Positions 39 3 1 Introduction : the essence of the difference between the parties 39 3 2 The ability of hapū to exercise rangatiratanga within the TūhoronukuIMA 39 3 2 1 The claimants 39 v 3 2 2 The Crown 42 3 2 3 The interested party in support of the claimants 44 3 2 4 The interested parties in opposition to the claimants 44 3 3 The hapū kaikōrero appointment and dismissal and processes in the Tūhoronuku IMA’s amended deed of mandate 46 3 3 1 EmbargoedThe claimants 46 3 3 2 The Crown 47 3 3 3 The interested parties in opposition to the claimants 48 3 4 The withdrawal provisions in the Tūhoronuku IMA’s deed of mandate 48 3 4 1 The claimants 48 3 4 2 The Crown 49 3 4 3 The interested parties 49 3 5 Conclusion 50 Chapter 4 : The Tribunal’s Assessment of the Current Structure of the Tūhoronuku IMA 51 4 1 Introduction 51 4 2 How does the Tūhoronuku IMA represent hapū and other Ngāpuhi interests ? 53 4 2 1 The Tūhoronuku IMA – its structure and representative model 53 Embargoed(1) Defining the group to be represented 53 (2) The representative structure and appointment processes 54 (3) Hapū kaikōrero : their appointment and role in negotiations 56 4 2 2 How are hapū kaikōrero and the Tūhoronuku IMA representatives accountable ? 58 (1) Accountability processes : the replacement of Tūhoronuku IMA representatives 58 (2) Accountability processes : the replacement of hapū kaikōrero 60 (3) Accountability processes : the withdrawal of the mandate 60 (4) The Crown’s conditions relating to the Tūhoronuku IMA’s mandate 61 4 3 Does the Tūhoronuku IMA protect the ability of hapū to exercise rangatiratanga ? 62 4 3 1 Introduction 62 4 3 2 The definition of Ngāpuhi 62 (1) Hapū are missing from the definition 62 (2) The mandate was sought from individuals 65 (3) Hapū did not agree to be part of a single large natural group 67 4 3 3 The representivity and accountability of hapū kaikōrero 70 (1) Hapū kaikōrero may not be representative of their hapū 70 Embargoed(2) The accountability process is overly onerous 75 4 3 4 The representivity and accountability of hapū representative members of the Tūhoronuku IMA board 76 4 3 5 The provisions for withdrawal of mandate from the TūhoronukuIMA 79 4 3 6 The Crown’s mandate conditions 83 4 4 Conclusion 83 vi Chapter 5 : Findings and Recommendations 85 5 1 Introduction 85 5 2 The Treaty duty of active protection 85 5 2 1 Hapū rangatiratanga is not actively protected in the Tūhoronuku IMA 86 (1) The definition of Ngāpuhi privileges the individual over the hapū 87 (2)Embargoed Selection of hapū kaikōrero does not ensure hapū control 87 (3) The Tūhoronuku IMA has been empowered to proceed without adequate hapū participation 88 (4) Active protection of hapū rangatiratanga secondary to policy imperatives 88 (5) Loss of opportunity for binding recommendations 90 (6) Failure to provide a workable withdrawal mechanism 91 5 2 2 The Crown’s actions 93 5 3 Our findings 94 5 3 1 The prejudice 95 5 3 2 Our recommendations 97 5 3 3 A way forward 99 5 3 4 Concluding remarks 100 Appendix Embargoedi : List of Interested Parties 105 Appendix ii : Select Record of Inquiry 111 Embargoed vii Embargoed Embargoed Embargoed Waitangi Tribunal Te Rōpū Whakamana i te Tiriti o Waitangi EmbargoedKia puta ki te whai ao, ki te mārama The Honourable Christopher Finlayson Minister of Treaty of Waitangi Negotiations The Honourable Te Ururoa Flavell Minister for Māori Development Parliament Buildings Wellington 9 September 2015 E ngā Minita, tēnā kōrua Kia hangaia he whare kōrero – ko Papatuānuku te paparahi, ko Ranginui e titiro iho nei te tuanui He roimata toroa ki te hunga kahurangi kua kakea te araEmbargoed o poutama ki te pō tē whakaarahia Kei ngā kairaranga i te kupu, kei ngā kaiwhatu i te kōrero – ngā uri whakaheke e noho tonu ki te pae, tēnā koutou Tēnei ka huakina ngā tatau o tēnei whare kia tiaho ai te māramatanga Ko ngā kōrero kua rārangahia ki ngā tukutuku, kua whakairohia ki ngā poupou E ōku rangatira, tomokia te whare nei We enclose the report of the Ngāpuhi Mandate Inquiry Tribunal, the outcome of an urgent inquiry conducted into the Crown’s recognition of the Tūhoronuku Independent Mandated Authority (the Tūhoronuku IMA) as the body authorised to negotiate a settlement of all historical Ngāpuhi Treaty grievances Fifteen named claimants made claims on behalf of a range of groups, most of whom are Ngāpuhi hapū or hapū collectives Foremost among their allegationsEmbargoed was that the Crown had pre-determined its decision to recognise the Tūhoronuku IMA For the reasons outlined in the report, we have not upheld that allegation Their other allegations were variations upon a central theme – that is, that the Crown had breached Level 7, 141 The Terrace, Wellington, New Zealand. Postal : DX Sx11237 Fujitsu Tower, 141 The Terrace, Te Whanganui-ā-Tara, Aotearoa. Pouaka Poutāpeta : DX Sx11237 Phone/Waea : 04 914 3000 Fax/Waea Whakaahua : 04 914 3001 Email/E-mēra : [email protected] Web/Ipurangi : www.waitangitribunal.govt.nz the principles of the Treaty of Waitangi by failing to protect actively the ability of hapū to exercise their rangatiratanga in determining when and how they would settle their claims In addressing these allegations, this report focuses upon the outcome of theEmbargoed mandating process : the structure and processes of the Tūhoronuku IMA as the mandated representative entity for all Ngāpuhi As we explain, hapū are the fundamental units of political organisation within Ngāpuhi The strength of Ngāpuhi itself is embedded in its many constituent hapū Within Ngāpuhi, the rangatiratanga of the hapū has always been respected and Ngāpuhi has only ever acted in concert with the agreement of the hapū In the Ngāpuhi context, therefore, the Treaty principle of partnership requires that the Crown has a primary duty to protect actively the right of hapū to determine how and by whom the settlement of their historical claims will be negotiated We find that the Crown has failed to fulfil this duty by recognising the mandate of an entity that undermines the authority of hapū and their leaders This is evident in the structure and processes of the Tūhoronuku IMA, an entity that fails to uphold hapū rangatiratanga in the following ways : ▶Embargoed the process for selecting of hapū kaikōrero, an integral feature of the mandated entity, undermines hapū tikanga by failing to ensure hapū control of the process ; ▶ the minority of hapū kaikōrero participating in the Tūhoronuku IMA at the time of hearing have filled all of the representative posi- tions on its board ; ▶ as a result, the hapū representatives on the board of the Tuhoronuku IMA, drawn from the hapū kaikōrero, cannot be considered truly representative of hapū ; ▶ the failure to include a workable mechanism enabling hapū to with- draw from the Tūhoronuku IMA means that hapū are included regardless of their views ; and ▶ the Crown has failed to require an adequate level of hapū participa- tion in the Tūhoronuku IMA before negotiations proceed WeEmbargoed have determined that claimant hapū will be prejudiced through being represented in negotiations with the Crown by an entity which they did not mandate, and from which they cannot withdraw There is potential for further prejudice if negotiations continue without the Crown addressing the issues we identify The mandating of representatives for Ngāpuhi hapū for settlement negotiations, in accordance with hapū rangatiratanga and tikanga, is a crucial step towards repairing the x relationship between Ngāpuhi and