Urgency Hearings - PowerPoint Presentation

Slide1

Urgency Hearings

Understanding the

ClaimsSlide2

What are the urgent hearings about?

A Mandate is an authority to act on behalf of others

I

n this instance the Ngatiwai Trust Board asked its members for a mandate to negotiate a Treaty

S

ettlement with the Crown on behalf of Te Iwi o Ngatiwai.

The

Ngatiwai Trust

Board ran an extensive mandating process over a period of 2.5 years with more than 50 hui, 370 written submissions, 285 TV and Radio panui, 2,735 voting packs and three independent reviews.

The Crown recognised the NTB’s Deed of Mandate on 21 October 2015.

On 20 November 2015 the Waitangi Tribunal began to receive applications for urgent hearings to be held to inquire into the Crowns

recognition of the NTB’s Deed of

Mandate for a number of reasons…Slide3

Summary of Claimants and Hapu

Claim

No

Claimants

Hapu

or other Group

Inc

in DoM?

Wai

2544

George Davies,

Huhana

Seve

, David Carpenter and Robert Carpenter

Ngatiwai ki Whangaruru

No specifically

Wai

156

Marie Tautari and Rowan Tautari

Te

Whakapiko Hapu o Ngati Manaia

No

Wai 745

Jared Pitman, Dr Guy

Gudex

and Ani Pitman

Patuharakeke

Yes

Wai 2181

Michael Beazley

and William Kapea

Te Uri o Maki-

nui

No

Wai

2337

Mira Norris and Marina Fletcher

Te

Parawhau

No

Wai

2545

Deirdre

Nehua

Ngatiwai and Ngati

Hau

Not specificallySlide4

Summary of Claimants and Hapu

Claim

No

Claimants

Hapu

or other Group

Incl

in DoM?Wai 2546Mylie George, Carmen Hetaraka, Mike Leuluai and Ngatio McGeeTe Uri o Hikihiki and other Ngatiwai whanauYesNot specificallyWai 2549Pereri Mahanga, Mitai Paraone-Kawiti, Violet Sade, Ngaire Brown and Winiwini KingiTe Waiariki, Ngati Korora and Ngati Taka PariYesWai 2550Ruiha Collier and Haki MahangaTe Waiariki and Ngati KororaYes (as above)Wai 2557Elvis RetiHimself and his whanauNot specifically

Note that the DoM was amended to remove Te Kapotai and their claims on 27 May and the Board has been informed that they intend to withdraw from the urgent hearings.Slide5

Wai 2544

George Davies,

Huhana

Seve

, David Carpenter and Robert

Carpenter

The claimants allege:That the Crown has not ensured that the NTB carried out an open, fair and robust process (i.e. people could not speak openly at mandate hui)There are significant issues surrounding the election of marae representatives who make up the NTB (i.e. A marae chairperson can determine the beneficiaries of a marae and veto candidate nominations)The structure of the NTB does not represent the people of Ngatiwai and there is inadequate hapu representation (i.e. 3/14 Ngatiwai Marae are undeveloped reserves)The Crown did not seek to engage with the claimants when they raised concerns over the DoM (forcing claimants to converse with NTB at all times)Slide6

Wai

745

Jared Pitman, Dr Guy

Gudex

and Ani

Pitman (continued)

The claimants submit:

The Crown has not allowed them to decide who will hold the mandate to settle their claims… without Crown interferenceThe Crown did not make appropriate changes to the NTB’s DoM following receipt of the claimants submissions opposing the mandateThey have never indicated support for, or voted in favour of the NTB DoMA collective mandate has never been given to anyone other than the Patuharakeke Te Iwi Trust Board (PTB)They have not been able to focus on their preparations for Waitangi Tribunal hearings and the present settlement negotiations threaten their funding and rights to a full Waitangi Tribunal inquiryThree settlement entities (NTB, Tuhoronuku and Te Runanga o Ngati Whatua) have been given notice that they do not have a mandate to settle their claimsThey are forced to withdraw from the NTB’s DoM but the process is significantly onerous and costly and they are not in a financial position to fund itThe voting results are not reliable enough to demonstrate a majority of support because of the low percentage of votes castSlide7

Wai 156

Marie

and Rowan Tautari

The claimants allege:

The Deed of Mandate claimant definition dose not recognise Te Whakapiko hapu as an active hapu (allowing the NTB to overlook the need for hapu representation for Te Whakapiko)

Te Whakapiko hapu have never given its support of mandate to the NTB

Inadequate engagement and consultation during the pre-mandate phase

The Crown did not require NTB to conduct hui in a way that allowed participants to participate freely and openlyWhen concerns were raised with the Crown they were advised to raise these concerns with the NTB directlyOTS have allowed the NTB to withhold relevant mandate information from claimants, creating an environment of mistrust undermining kotahitangaSlide8

Wai 745

Jared Pitman, Dr Guy

Gudex

and Ani

Pitman

The claimants say that the Crown has failed in its duties to act fairly and in good faith by:

Failing to act impartially in its recognition of the NTB’s Deed of Mandate

Failing to adequately address and respond to the claimants’ concerns over the application of the Crown’s large natural grouping policyFailing to address or resolve concerns relating to the Ngatiwai mandating process, including hui and voting processesFailing to have due regard to the opposition of the claimants to the mandate process, and their inclusion in the NTB’s Deed of Mandate; andFailing to carry out a fair process leading up to its recognition of the NTB’s Deed of Mandate, and failing to ensure that the mandate was not pre-determined.Slide9

Wai

2181 Michael Beazley & William Kapea

The claimants note that Te Uri o

Makinui

tribes are of the

Kawerau

confederation and submit that the Crown seeks the settlement of Ngatiwai claims within the

Kawerau tribal rohe, and does so without consulting the Kawerau people including the claimants.The claimants also submit that the NTB DoM:Fails to acknowledge the existence of Kawerau interest in the area where Ngatiwai claims are to be settledWrongly includes Kawerau hapu as historic hapu of Ngatiwai; andWas developed without consultation with the claimants or Kawerau people.Slide10

WAI 2337 Mira

Norris, Marina Fletcher &

Tamihana

Paki

The claimants submit that the Deed of Mandate includes Whangarei Harbour and

P

arawhau

lands. The claimants note that the Deed of Mandate includes Wai 688, which they submit is a Parawhau claim, and should not be included. Slide11

Wai 2545 Deirdre

Nehua

The claimant submits:

That the Crown’s essential requirement for mandate to be accepted is that the process undergone is open, fair and robust. However the claimant alleges that the Crown has not upheld that standard.

The Crown has not allowed her to decide who will hold the mandate to settle her claim without interference. Instead the Crown has dealt directly with the NTB, and has not resourced any other group to develop an alternative model, or model more appropriate for Ngatiwai.

That she has raised concerns with the NTB through written correspondence, at hui and in submissions on the DoM. However nothing eventuated from her input and her concerns were ignored.

The process used to consult with Ngatiwai has not been consistent with tikanga and has not allowed Ngatiwai to freely express their concerns in an open forum.

The Crown has encouraged NTB to claim areas which are not within the mana whenua of Ngatiwai. Slide12

Wai 2546

Mylie George, Carmen

Hetaraka

, Mike

Leuluai

&

Ngatio McGeeThe claimants allege:That the Crown’s recognition of the NTB DoM will significantly and irreversibly prejudice their whanau and Ngatiwai generally. The claimants allege that the Crown has and will cause them prejudice by recognising a mandate which:Does not have adequate accountability measuresIs not representative of NgatiwaiDoes not allow for hapu to exercise rangatiratangaTreats Ngatiwai hapu disparately; and Fundamentally misapplies Ngatiwai tikangaSlide13

Wai 2549

Pereri

Mahanga

,

Mitai

Paraone-Kawiti, Violet Sade, Ngaire Brown and Winiwini KingiThe claimants assert: That they are not a hapu of Ngatiwai, and that their three hapu (Te Waiariki, Ngati Takapari and Ngati Korora) maintain a defined manawhenua which is exclusive, autonomous and independent of Ngatiwai. It is contrary to the genealogical, geographical and geopolitical facts of history in that the claimants are not Ngatiwai; andThe claimants for those claims did not consent to their inclusion in the NTB’s DoMSlide14

Wai 2549

Pereri

Mahanga

,

Mitai

Paraone-Kawiti, Violet Sade, Ngaire Brown and Winiwini Kingi (Con’t)The claimants assert that they have suffered and will continue to suffer the following significant and irreversible prejudice:The Crown’s disregard of the hapu rangatiratanga of Te Waiariki, Ngati Korora and Ngati Taka Pari hapuThe Crown’s attempt to acheieve, though the Ngatiwai mandate, what it was unable to achieve through the Ngapuhi mandateThe Crown being a party to the re-writing of the whakapapa of Te Waiariki, Ngati Korora and Ngati Taka Pari hapuThe potential loss of the ability to seek binding recommendations from the Tribunal with regards to Glenbervie Forest and The deterioration of relationships between the claimants’ hapu and NgatiwaiThe claimants note that there are no other remedies available to themSlide15

Wai 2550

Ruiha

Collier &

Haki

Mahanga

The claimants, who whakapapa to Te Waiariki and Ngati Korora hapu , assert that these hapu are not Ngatiwai hapu. Rather the claimants assert that these hapu are hapu of Ngapuhi. The claimants submit that they have suffered and will continue to suffer significant and irreversible prejudice because of the Crown’s failure to consult and adequately engage with the claimants, and the Crown’s failure to remove Wai 620 from the NTB Deed of MandateSlide16

WAI 2557

Elvis

Reti

The claimant alleges that the Crown has breached the principles of the Treaty of Waitangi by failing to actively protect his

taonga

and other interests.

The claimant alleges that he is suffering significant and irreversible prejudice as a result of the Crown’s recognition of the NTB’s Deed of Mandate.Slide17

Tribunal Decision 2 May 2016

The Tribunal noted a number of similarities with the Ngapuhi mandate where it identified a “

central theme”

:

“…that the Crown had breached the principles of the Treaty of Waitangi by failing to protect actively the ability of hapu to exercise their

rangatiratanga

in determining when and how they would settle their claims.”

The Tribunal also noted a series of claims which diverge or depart from the central theme that were more concerned with relationships within kin groups, within marae administration, or in some cases, personal disputes rather than matters that would lead the Tribunal to grant urgency.“…an example is the requirement in the DoM that nominees for election must be endorsed by the Chairperson of the appropriate marae, who may not be acting properly…”Slide18

Tribunal Decision 2 May 2016

What is central and telling for this application is that the mandate is said to be granted on the Ngatiwai iwi register on the basis of ‘one person one vote’ and it can not be ascertained which, or if any hapu have given their mandate to the NTB. (Para 292)

I apprehend that the central proposition for most claimants is that the confirmation and guarantee contained in Article 2 of Te

Triti

was to the rangatira, the hapu, and to all of the people, and that is the way that the matter should be dealt with. The Crown should not attempt to go over the head of the hapu without hapu consent. (Para 298)

)Slide19

Tribunal Decision 2 May 2016

It is suggested that the claimants are a small but

v

ocal minority

80 signatures against the mandate in August 2013

525 signatures gained in a petition against the mandate in February 2016

However, in these circumstances it would be difficult indeed for me to find that the present applications are simply an expression of dissatisfaction from a small and vocal group of dissidents. (para 300)

I consider it better the problem be addressed at this stage. There is clearly considerable support for the claims. The matter of hapu rangatiratanga is an important issue… (para 311)Slide20

Tribunal Decision 2 May 2016

…the matter to be heard is:

Are the claimants themselves, or any group of Maori of which they are a member prejudicially affected or likely to be prejudicially affected by a policy or practice, act or omission of the Crown that is inconsistent with the principles of the Treaty?

The policy, practice, act or omission alleged is that Crown’s recognition of a mandate held by the NTB in relation to the hapu referred to in the NTB’s Deed of Mandate without the support and consent of those hapu. Slide21

Tribunal Decision 26 May 2016

Further decision on “Framing of the Central Theme”

The central issue relates to the Treaty relationship between the hapu and the Crown and not other groups.

The question upon which I have allowed urgency specifically excludes internal processes as a central issue.

The issue as currently framed does not restrict claimants and does not restrict hapu except to the extent that they must be named in the Deed of Mandate. The intention is that all claimants and any hapu referred to in the Deed of Mandate may be heard. Slide22

Workshop Questions

What makes a hapu and what makes an Iwi?

What does being Ngatiwai mean to you and what makes us Ngatiwai collectively?

Do you agree with one collective Ngatiwai Settlement or should there be several separate settlements?

How do we know who are the representatives for each Hapu so that we can seek their consent?