​WAI 2840: Hauraki Overlapping Claims Inquiry While working through the MACA Stage 1 hearings, the Board was also preparing to appear again at the Waitangi Tribunal hearings from 8 – 12 April in Wellington. These hearings (WAI 2840) are an urgent inquiry into the Crown’s Treaty Settlement policy regarding overlapping claims and the proposed redress in relation to the Hauraki Collective, Marutūāhu Collective and individual Hauraki iwi settlements.

A pōwhiri for the hearings took place on Sunday 7th April at Waiwhetu Marae, Lower Hutt and the hearings began on Monday 8th April.

The Board’s representatives, witnesses and supporters including our whānau from Aotea, attended the hearings at Waiwhetu Marae in unison. Whānau based in Wellington also attended in support. Ngātiwai presented a very strong presence at the hearings together with Ngāti Manuhiri.

Kiri Tahana from Kahui Legal set the stage for Ngātiwai witnesses with compelling opening submissions. Ngātiwai Trustee for Matapouri Aperahama Edwards and Ngātiwai Chairman Haydn Edmonds were cross-examined and at the last minute the Crown and counsel for Hauraki chose not to cross-examine Ngātiwai Treaty Claims Manager Tania McPherson.

Treaty Claims Committee Chairman, Aperahama Edwards says, “It was great to have the Ngātiwai presence seen and heard, we really appreciated the tautoko from our whānau in Wellington and from across the motu that were able to attend."

“Going through these two hearings simultaneously has had huge impact on our Board and our wider iwi.”

“The time, effort and costs that has gone into defending our Mana is huge, but we cannot sit back and watch our Mana Moana and Mana Whenua be given away by the Crown without anyone having a conversation with us on our marae first.”

 “So we had to travel, we had to fight this injustice and we had to defend the Mana of our people.”

“We would like to thank Kiri and all the team from Kahui legal who presented our case so professionally and ensured that the mana of our iwi was upheld.”

The timetable for the hearings was constantly changing up to and throughout the hearings but live-streaming links to the hearings were provided on a daily basis for claimants and was also screened at the Trust Board's offices.

Although the kaupapa was not a happy one feedback received included:
• Ngātiwai has the strongest case both in terms of poor Crown process and severity of redress, particularly on Aotea.
• Ngātiwai and Ngāti Manuhiri provided a united front with our legal counsels tag teaming in the cross-examination.
• The Crown admitted it had made a number of mistakes in relation to the Ngātiwai involvement in the overlapping claims processes.
• The Tribunal’s questioning of the witnesses demonstrated it was alive to the Ngātiwai case.
​
Next steps:
• Claimants closing submissions are due on 8th May 2019
• Crown and interested parties closing submissions are due on 5th June 2019.
• Claimants reply submissions are then due on 17th June 2019.
• The Tribunal's report is likely to take several months to complete given the complexity of the claimants cases.

MACA Stage 1 – Week 1 Hearings
This first week of the Marine and Coastal Area Act (MACA) Waitangi Tribunal hearings were held in Wellington from Monday 25th March to Friday 29th March 2019.

Ngātiwai were represented at these hearings by Treaty Claims Committee Chairman and Trustee for Matapouri – Aperahama Edwards, Treaty Claims Manager, Tania McPherson and our Legal Counsel, Stuart Henderson and Paula Wilson of Henderson Reeves, Whangarei.  Our Ngātiwai whānau who presented their case at these hearings on behalf of their whānau and hāpu did a great job with their time in the witness stand, and upheld the mana of Ngātiwai proudly.

Ngātiwai were given the opportunity to present evidence on the Tuesday afternoon with Tania McPherson presenting our evidence with our legal counsel, and then continuing to stand to answer cross examination questions.  The Ngātiwai evidence focused solely on the procedural and resourcing issues.

Ngātiwai presented a very comprehensive evidence and this was acknowledged by the Tribunal panel, and also by Crown counsel and senior staff of Te Arawhiti (formerly known as the Office of Treaty Settlements).

The procedural and resourcing issues that Ngātiwai focused on became more evident as the week progressed.  A high court registrar under cross examination conceded that the High Court was clearly not prepared for the tsunami of applications that they were to receive, they had little preparation, no practice notes or guidelines.  They were challenged as to whether the Crown could and should have been better prepared given other large public interest proceedings they have previously been involved in.

Other procedural issues were uncovered with senior Te Arawhiti staff conceding under cross examination that they could have done better with communicating with the effected groups.
As a result of this Waitangi Tribunal Inquiry, Te Arawhiti will undertake a review of the funding amounts and policy for High Court applications, and will contact each of the High Court MACA applicants to participate in the process.

Treaty Claims Committee Chairman, Aperahama Edwards says, “It has been a long week, but I feel we presented our case with mana for all of Ngātiwai.”

“Our Treaty Claims Manager, Tania McPherson, did a great job answering questions accurately and succinctly during her time on the stand.  She did brilliantly in representing this case for our iwi.”
“I would also like to acknowledge our legal team from Henderson Reeves.  Paula Wilson and Stuart Henderson have been fantastic to work with, and presented our case professionally and totally on point, as acknowledged by the Tribunal and others.”

From here, dates for closing submissions for Stage 1 of the MACA Inquiry (WAI 2660) will be announced.  Ngātiwai will shortly decide if we attend the hearings for closing submissions or whether we ask our legal team to present our closing submissions at the hearings on our behalf.
​
Aperahama says, “Being involved in these processes comes at huge cost and time.  So the iwi will consider its next steps, while being mindful of how we best use our resources and manage costs.”

Meeting with Minister Little at Waitangi

On Saturday 2nd of February, the Board’s Treaty Claims Committee (TCC) met with Treaty Settlement Minister Andrew Little in Waitangi to discuss the Ngatiwai Mandate Report recommendations and in particular mediation.

At this meeting the TCC signalled to the Minister on behalf of the Ngātiwai Trust Board its intention to meet with hapū to discuss a mediation process.

The Minister requested that a plan be provided to Te Arawhiti (previously the Office of Treaty Settlements) once it is agreed. The TCC committed to doing this.

MACA Update

Ngātiwai Trust Board Chief Executive Office Kris MacDonald and Treaty Claims Manager Tania McPherson have prepared Evidence which was filed in the Waitangi Tribunal on Friday 18 January 2019.

The issues that Kris and Tania covered in their evidence concerned the lack of funding and resources to advance MACA application under the Act.

The TCC have confirmed to control the ongoing costs of the MACA process, only Kris and Tania will be required to attend the hearings to be held in Wellington from 25-29 March 2019 for cross-examination (if required).

This evidence is available on our website in the MACA resources folder.

Dismay after rushed signing of Hauraki Settlement

The Ngātiwai Trust Board are dismayed that the Crown signed another iwi up to the controversial Pare Hauraki Collective Settlement on Thursday last week.

Ngātiwai sought an assurance from Minister Little in November 2018 that the Crown will pause the Hauraki Settlements until the Waitangi Tribunal have held an urgent inquiry concerning overlapping
claims. The Minister provided that assurance in December, but the recent signing with Ngāti Paoa flies in the face of the Minister’s assurance.

Ngātiwai Treaty Claims Committee Chairman, Aperahama Kerepeti-Edwards, says, “We are confused by the actions of the Crown last week.”

“Technically speaking the Minister said he would not introduce any settlement legislation into Parliament but to continue to progress signings indicates the Crown’s dogged focus on inching the Hauraki settlements closer and closer to the line.”

“In determining to hold the urgent hearings, the Tribunal pointed out that the Crown had failed to provide any real evidence to refute the applicants and that was part of the reason why that Tribunal
granted the hearings. It seems that the Crown have been more focused on inching the Hauraki settlements closer to completion than putting together any decent evidence for the hearings which is
a real worry.”

“The Crown need to stop rushing through these signings when they know there are many unresolved issues. We have a Waitangi Tribunal hearing coming up in April, so to me it would have made sense for the Crown to wait.”

“Mid last year we had a hui on our marae in Whananaki with the then negotiator for Ngāti Paoa. At this hui we agreed to continue to have ongoing korero to understand their interests for which they claimed, and this was to be done on the marae, guided under tikanga Māori. We were delighted with the initial meeting, and both parties were committed to completing the process.”

“We are dismayed that the Crown have now taken this step while we are waiting for the Hauraki overlapping claims inquiry to get underway.”

“We are extremely disappointed with the Crown’s actions.”

The first week of hearings are scheduled to take place in Wellington from 8-12 April 2019.
All those who have filed affidavits will be asked to make themselves available to attend the hearing if required for cross-examination.

Ngātiwai Trust Board Ask The Crown To Pause Hauraki Settlement
Recently the Ngātiwai Trust sent a letter to Treaty Settlement Minister, Hon. Andrew Little, requesting confirmation that several Hauraki Settlements will be paused pending the outcome of an urgent inquiry.
 
The Ngātiwai Trust Board submitted an urgent hearing application to the Waitangi Tribunal in July 2017 to ask the Tribunal to look into the Crown’s flawed overlapping claims processes and redress offered to various Hauraki groups within the Ngātiwai rohe and particularly in relation to Aotea (Great Barrier).
 
Ngātiwai Treaty Claims Committee Chairman, Aperahama Edwards says “We have asked the Crown to confirm that they have put a pause on the Hauraki Settlements while our claims are being heard under urgency by the Waitangi Tribunal.”
 
“As a result of this inquiry we would expect that no further steps are taken by the Crown to advance any of the Hauraki settlements involved until the Waitangi Tribunal has completed the inquiry and presented their report.”
 
“Some of our whānau that have logged their own individual applications for urgency unfortunately had their requests dismissed.   We encourage them to work with our team to ensure their voices are still heard.”
 
Through the hearing process it is hoped that the Tribunal can give some definitive recommendations on an improved process consistent with tikanga and what mana whenua and ahikaa means and how that impacts on the Crown’s behaviour and decisions.

Stage One of the MACA Kaupapa Inquiry about to get underway
The Ngātiwai Trust Board filed a statement of claim with the Waitangi Tribunal on 4 July 2018 in relation to the Marine and Coastal Area (MACA) inquiry.  The MACA inquiry is targeted at the legislative framework and applications process established under the MACA Act.
 
The inquiry will address two main questions:  
1)  To what extent, if at all, are the MACA Act and Crown policy and practice inconsistent with the Treaty in protecting the ability of Māori holders of customary marine and coastal area rights to assert and exercise those rights
2)  Do the procedural arrangements and resources provided by the Crown under the MACA Act prejudicially affect Maori holders of customary marine and coastal area rights in Treaty terms when they seek recognition of their rights?

Aperahama Edwards says “The Board has been forced to make applications under the MACA Act by a statutory deadline or otherwise allow Ngatiwai rights in the takutai moana to be extinguished as a matter of Law.”

“Once our applications were lodged we became trapped in a procedural process that does not provide sufficient resources to allow us to protect our customary rights in the takutai moana from being extinguished.”
“Substantive issues set out in our Statement of Claim have yet to be addressed in Stage Two and this will come with considerable costs that are unlikely to be properly funded based on our experience to date”
 
The hearings for this inquiry have been scheduled to take place in Wellington from 25 to 29 March 2019 and again from 27 to 29 May 2019.  The Board is currently preparing evidence for stage one of this inquiry.
 
Marine and Coastal Area (Takutai Moana) Act - High Court Process
The Board filed Ngātiwai wide “blanket” applications with the High Court and the Crown before the deadline of 31 March 2017.  This was done to protect Ngātiwai rights in the coastal marine are from being extinguished as a matter of law.
 
Aperahama Edwards says “The test in the Act requiring exclusive occupation to be proven are inappropriate in the Northland context as we do not all fit into the nice tidy boxes that the Crown expects of us.  The number of overlapping applications demonstrates this which is why we are looking closely at the idea of shared exclusivity that was discussed in the first ever case determined in the High Court”
 
“Even if you can meet the exclusive occupation test under the MACA Act the rights available in this legislation are weak by comparison to what the Crown can do. For example, the Crown can still put a Marine Reserve over an area without permission from Maori rights holders.”
 
“The Board has supported all Ngātiwai whanau, hapū and marae applications in principle.  This is because the issue of who should be the holders of any rights is yet to be determined through the prescribed High Court processes. It will be very interesting to see how the High Court or the Maori Land Court deals with representation issues as compared to the Crown or the Waitangi Tribunal in relation to mandating issues”
 
The High Court hearings are not expected to commence before 2021 on Ngātiwai applications as there are a number of prioritise applications that need to be worked through first.
 
Mandate Mediation
The Board’s Treaty Claims Committee have been working on gathering information and developing a mediation options as recommended by the Waitangi Tribunal in its report on the mandate.
 
The Board’s Treaty Claims Committee have also requested kaumātua participation on the committee and a name change to better reflect this change.
 
With the MACA Kaupapa hearings and Hauraki hearings taking place in the first quarter of next year the committee have a lot of work ahead of them, but it is hoped that mandate related mediation can get underway in the New Year if a mediation process can be agreed with affected hapū.

Ngātiwai Trust Board Treaty Committee Restructure

The September meeting of the Ngātiwai Trust Board approved a restructure of the Treaty Claims Committee, with the Board appointing new Trustees to the Committee and a new Chairman.
The new members endorsed by the Board are:

• Gary Reti (Ōtetao Marae), Kathleen Caldwell (Whananaki Marae), Ropata Diamond (Tuparehuia Marae) and Aperahama Kerepeti-Edwards (Matapouri Marae) are appointed to the committee, and
• Aperehama Kerepeti-Edwards is appointed as the Chairman of the Committee.

Board Chairman Haydn Edmonds also stood aside as the Board appointed negotiator.  With the pause that has been applied to our current Settlement, the Board feel that this position can be reconsidered and an appointment made in the future.

The new Committee then requested an opportunity to update the Ngātiwai Kaumātua Rōpū which took place on 29 October 2018 at the Trust Board where the following matters were discussed:

• The restructure of the Trustees on the committee (as above) which received unanimous endorsement;
• Request for kaumātua participation on the committee and a name change to better reflect this as well as the essence of the committee which is to be further discussed by kaumātua;
• Push back on the Crown’s proposed protocol areas for Hauraki Iwi within the Ngātiwai rohe and research to get underway to support the Ngātiwai position on a range of Treaty related matters which also received unanimous support; and
• Support to initiate hui with hapū to discuss an agreed mediation process as recommended by the Waitangi Tribunal in its Ngātiwai Mandate Inquiry Report. 

Ngātiwai Trust Board explore Court Action

On the 17th of September the Supreme Court of New Zealand released its ruling in favour of Ngāti Whātua Ōrākei and confirmed that the transfer of land as part of proposed Treaty of Waitangi settlements can be judicially reviewed.

This is a very significant decision as the ruling confirms the concerns that the Ngātiwai Trust Board has had for a long time now about the way the Crown approaches overlapping claims, the lack of respect the process has for tikanga Māori and the impact it has on the relationships we have with other iwi.

For the past sixteen months the Ngātiwai Trust Board has been waiting for the Waitangi Tribunal to make a decision on an application for an urgent hearing into the Crown’s overlapping claims policy and practice as well as the redress it proposes to provide to Hauraki iwi as part of their Treaty Settlements within our rohe.

As a result of the Supreme Court’s decision, the Ngātiwai Trust Board is now exploring the possibility of taking a case to the High Court.  The Ngātiwai Trust is currently in discussions with its legal counsel Kahui Legal to assess the potential of going down this path.
​
Aperehama Kerepeti-Edwards, Chair of the Treaty Claims Committee says “We acknowledge the mahi that Ngāti Whātua ki Orākei have done, as this now paves the way for ourselves and other iwi who have for a long time now been battling the Crown’s approach to overlapping claims.”

On 23 and 24 March 2018, the Trust Board held a hui-ā-iwi at Tuparehuia Marae, Bland Bay. This hui was facilitated and supported by the Ngātiwai rōpū kaumātua.  The purpose of the hui was to discuss the findings and recommendations set out in the Tribunal’s report on the Ngātiwai mandate. The outcomes from the hui-ā-iwi were agreement that:

1. There should be a hohourongo between the Trust Board and Patuharakeke first and before anything else happened;
2. There should then be a series of wānanga on the common topics identified from the workshop sessions held at the hui-ā-iwi or in the mandate report; and
3. Then mediation.

Following the hui-ā-iwi, communications were had to establish a date for the hohourongo, but due to unforeseen circumstances outside of the Ngātiwai Trust Board’s control, various proposed dates had to be postponed. The rescheduled date is now set for 18 November 2018.
The first in the series of wānanga-a-iwi was hosted by Ngātiwai Marae, Ngaiotonga on 31 August through to 2 September 2018.

Although an agenda had been set, the main day Saturday tended to roll out spontaneously, as people felt motivated to share their knowledge, their versions of the history of Ngātiwai and their own hapū stories which touched on the whakapapa associated with their stories.

Acknowledgements must go out to the amazing speakers, who willingly shared their experiences and knowledge and to the Taumata for their kōrero.

Ngaiotonga Marae Chairman and Ngātiwai Trust Board Trustee, Merepeka Henley said “All those present shared their positive kōrero about the wānanga, compliments about the kai, the venue and the positive atmosphere.  The whole wānanga was premised on our tikanga, wairua and manaakitanga, which was openly expressed.”

“Everyone present felt honoured to have great orators recite whakapapa and link the links back to the whare (Ngātiwai Marae). For a number of participants the day’s kōrero was awe inspiring.”
​
The second wānanga-a-iwi in the series has been scheduled for the 16th and 17th of November 2018 at Ngunguru Marae, and whānau and hapū are strongly encouraged to attend and participate.
A further wānanga-a-iwi may take place in January or February 2019.

Unresolved overlapping claims with Pare Hauraki – The Latest

• On the 2nd August 2018 the Crown proceeded with signing the Pare Hauraki Collective Redress Deed which sets the scene for significant redress within the Ngātiwai rohe, particularly around and on Aotea Great Barrier Island.
• Ngātiwai have not been involved in any discussions, negotiations or agreements with the Pare Hauraki Collective or their negotiators whatsoever, yet the Crown proceeded to sign the Deed.
• Ngātiwai have been seeking a tikanga based process on our marae to resolve the overlapping issues with iwi of Hauraki.
• Only three of these iwi met with us to discuss these issues; Ngāti Paoa, Ngāti Hako and Ngai Tai ki Tamaki. These were positive and all parties committed to further discussions to resolve these matters.
• Ngātiwai advised the Prime Minister, Jacinda Ardern, and the Treaty Settlement Minister, Andrew Little, that it is crucial that these hui are allowed to happen under tikanga Māori before any Settlements are signed off.
• Ngātiwai have still not been approached for any tikanga based hui by a number of the Hauraki Negotiators.
• Ngātiwai will continue to fight what it considers as a Mana and Land grab in the Waitangi Tribunal with 15 other applicants.

Who is being offered what Redress by the Crown on and around Aotea

1. The Name change of Great Barrier Island
The Pare Hauraki collective redress deed allows the Hauraki Collective to officially change the geographic name of “Great Barrier Island” to “Aotea / Great Barrier Island”, if their legislation is given effect before the Ngāti Rehua Ngātiwai ki Aotea settlement legislation comes into effect.  This redress effectively gives Pare Hauraki naming rights and is an indication of mana whenua that is inconsistent with tikanga Māori.
 
2. Exclusive Cultural Redress - Statutory Vesting
This redress will give ownership of the following properties to Ngāti Maru and Ngāti Tamaterā.
The Ruahine Scenic Reserve (26.57 ha) will be vested to Ngāti Maru
The Rangitawhiri site (16.25 ha) and Te Rohu (0.28 ha) will be vested to Ngāti Tamaterā
 
3. Exclusive Commercial Redress (Rights of First Refusal)
Otherwise known as Right of First Refusal (or RFR’s), this redress gives Hauraki iwi the right purchase the following Crown owned properties if they become surplus to the Crown’s needs within the next 177 years:

Exclusive RFR to Ngāti Whanaunga to purchase the Tryphena Hall Local Purpose Reserve (Land Only) (1.1750 ha)

Shared RFR’s with Ngāti Maru, Ngāti Tamaterā and Te Patukirikiri to the following properties; Komahunga Conservation Area (7.6760 ha), Harataonga Scenic Reserve (264.4292 ha), Wairahi Forest Sanctuary (477.1587 ha), Okupu Conservation Area (14.6015 ha), Oruawharo Creek Recreation Reserve (0.6076 ha), Oruawharo Creek Government Purpose Reserve (6.1629 ha), Pa Point Recreation Reserve (2.6450 ha), Ruahine North Conservation Area (57.7863 ha), Ruahine South Conservation Area (32.3748 ha), Shoal Bay Conservation Area (0.2053 ha), Tryphena Scenic Reserve (428.0561 ha),  Medlands Wildlife Management Reserve (9.7842 ha), Te Atamira Scenic Reserve (0.8093 ha), Oruawharo Marginal Strip (27.1000 ha), Rosalie Bay Marginal Strip (1.4080 ha), Sandy Bay Marginal Strip (0.8050 ha)

​4. Statements of Association, Statutory Acknowledgements and Deeds of Recognition
These types of non-exclusive redress can be offered to multiple iwi including Ngātiwai.  This redress applies to sites of significance such as rivers, lakes, mountains, wetlands and coastal areas etc, where land is owned by the Crown.  This type of redress acknowledges the Hauraki iwi statements of association on and around Aotea.
 
It is the Board’s view that this type of redress gives Hauraki iwi a modern form of mana whenua status in that this redress enhances their ability to participate and influence Resource Management and Department of Conservation management processes within the Ngātiwai rohe.

One example is that Ngāti Tamaterā and Ngāti Maru will have influence over the Whangapaoa Conservation Area, despite not being hau kainga on the island.
 
The Board feels this undermines the mana whenua status of the hau kainga of the Island and gives Hauraki recognition, status and influence over Aotea that is inconsistent with tikanga.

There are also other redress options being offered to Hauraki such as protocols and fisheries quota right of first refusal.  An example of a protocol redress is the establishment of a process for determining ownership or export of any taonga tuturu found on or around Aotea.

Essentially all of this cultural redress gives the iwi of Hauraki legal rights and influence at a Crown and local Council level, that they do not hold under tikanga māori.  In the world of Te Ao Maori, this effectively gives them mana whenua status which Ngātiwai say has never existed for the iwi of Hauraki on Aotea.

Ngātiwai are not alone in dealing with overlapping claim disputes with tribes from Hauraki and Marutuahu. The Ngatiwai Trust Board (the “Board”) has been calling for a tikanga Māori process on the Marae to resolve overlapping claims but only a few of the iwi involved have come forward and some have never responded.
​
Successful hui held with Ngāti Hako and Ngāti Paoa
Last month the Board facilitated two initial hui with Ngāti Hako and Ngāti Paoa from Hauraki to begin a process for resolving overlapping claims with them. Both of these hui went extremely well under the guidance of the Marae taumata who maintained a respectful exchange of views and facilitated agreed outcomes to be revisited at further hui yet to be arranged.

Ngātiwai Trust Board Chairman, Haydn Edmonds says, “We would like to thank both Ngāti Hako and Ngāti Paoa for meeting with us on our Marae.  We are grateful for them taking the time to travel North to sit down and kōrero with us. We were all clear at both these hui that it was important that we came together to discuss the issues, but to also reaffirm our connections. At these hui, not all matters were resolved immediately and were never expected to be.  However, all parties took away things to consider, and have committed to further hui to work towards a resolution.”

Lessons learnt from Ngai Tai ki Tamaki overlapping claims engagement
In mid-July 2017, the Board met with Ngai Tai ki Tamaki to discuss overlapping claims. Shortly after, the Board provided a written submission to the Office of Treaty Settlements objecting to the proposed redress.  The Crown then introduced the Ngai Tai ki Tamaki settlement legislation into the house for its first reading. The Board then made further submissions to the Maori Affairs Select committee and in late March 2018, the Committee reported back to the house. The Committee said:
“Based on advice we have received from the Office of Treaty Settlements, we do not recommend any changes to the bill on this matter. Any agreements to amend the protocol areas could be implemented without an amendment to the bill.”

In early-April 2018, the Board made an urgent request for direct reengagement with Ngai Tai ki Tamaki to discuss overlapping claims. The response was that they would be overseas and would not be able to respond until June or July 2018 – approximately three to four (3-4) months later. It is clear to the Board that leaving unresolved matters until after settlements have been finalised provides no incentive for these groups to come to the ‘table’ to resolve these matters in earnest.

Why is it important to have a tikanga Māori process?
Hui on the Marae is not only our natural way, it provides a far more transparent and robust way for resolving claims concerning mana whenua, mana moana and appropriate redress because you cannot hide from scrutiny on the Marae.  

The Crown’s process on the other hand involves writing submissions to the Office of Treaty Settlements and puts the Crown in between iwi and in the position of decision-maker over Māori matters. It allows those groups who refuse to engage to hide behind the Crown’s flawed policy and exploit other iwi by not fronting their claims with the people most affected by them.
​
What is the new Labour Government and Minister for Treaty negotiations doing about it?
In July 2017, the Board filed an urgent hearing application in the Waitangi Tribunal along with nine other claimant groups objecting to the Crown’s overlapping claims policy. The application also objected to the redress provided to Hauraki iwi under this policy within the Ngātiwai rohe. Despite the application, the new Government and Minister Little continue with the Crown’s overlapping claims policy unchanged and without any requirement that overlapping groups come together to discuss and resolve disputed redress.
​
The Crown are also aware of the growing concern among iwi Māori including Tauranga Moana who raised an army and marched on Parliament last month in protest and Ōrākei who have taken a case to the supreme court in addition to the Tribunal.

The Minister appeared in Māori news media, to defend the Crown’s current policy by saying it is not the Crown’s place to ‘interfere with tikanga’. Yet the Minister has put all objecting iwi on notice that he intends to sign-off on the contentious Pare Hauraki settlement. Ironically the Minister appears to be ‘blind’ to the fact that to sign off without any genuine efforts to resolve overlapping claims in a tikanga Māori way with Ngātiwai would be ‘interfering with tikanga’ as it would undermine the tikanga process by removing any incentive for Hauraki groups to come to the ‘table’.

Who is not coming to the table to talk with Ngātiwai?
There are three iwi and two collectives in particular who have never responded at all to the Board’s request for hui. They are:

• Ngāti Maru
• Ngai Tamatera
• Patukirikiri
• The Hauraki collective
• The Marutuahu collective
  
• Ngāti Whānaunga did respond at one point but then cancelled the hui at the last minute due to ill health but never followed up.

While we appreciate that these iwi or collectives may well have been in negotiations for some time we implore them to come forward and do the right thing.
​
Board Chairman, Haydn Edmonds says, “There are only three iwi from Hauraki that have engaged with us to date, and we need to have the same kōrero with the other iwi that make up these collectives. It is crucial that these hui are allowed to happen under tikanga Māori, before any Settlements are signed off by the Treaty Negotiations Minister Andrew Little. We have a long history with many but not all of these iwi of Hauraki, and our recent hui with Ngāti Hako and Ngāti Paoa has re-affirmed that.  We accept that there may be some historical interests that they have, however those interests must be determined through a tikanga process, and not a Crown process.  Our position is simple and requires any redress offered must not erode the mana whenua and mana moana of Ngātiwai within our rohe.”

​Ngātiwai Trust Board will hold the first Hui-a-iwi of 2018 on the 23rd and 24th March at Tuparehuia Marae. The main topic for discussion will be the findings and recommendations set out in the Waitangi Tribunals report, “The Ngātiwai Mandate Inquiry”, which was released by the Waitangi Tribunal on 31st October 2017. 

​​Ngātiwai Trust Board Chairman, Haydn Edmonds said, “This is a very important hui for all of us and I hope we can all come together to kōrero about a pathway forward. It is pleasing for me that our Kāhui Kaumātua are supporting this hui and we are working with them to put the kaupapa for this hui together. I would like to invite you all to come out to this hui, bring your tamariki, bring your Kaumātua and your wider whānau, and let’s come together as Ngātiwai.”

"Nau mai, piki mai e ngā iwi e"

On the 19th February the Ngātiwai Trust Board attended the Māori Affairs Select Committee hearings in Auckland to discuss the Board’s concerns with the Ngāi Tai ki Tāmaki Settlement Bill which are in the final stages of completion.
 
The key concerns raised with the committee related to:

• the lack of due process the Crown has followed and in particular the lack of engagement with Ngātiwai at an early stage in the Tāmaki negotiations; and
• the non-exclusive redress that the Crown has offered Ngāi Tai ki Tāmaki in the form of protocols and statutory acknowledgements in the southern end of the Ngātiwai rohe.  

Chairman, Haydn Edmonds said, “The Ngātiwai Trust Board absolutely supports a Treaty Settlement for Ngāi Tai Ki Tāmaki. However, we do not support some aspects of the Settlement at this point which we would like to discuss further with Ngāi Tai ki Tāmaki. It is our preference that we meet kanohi ki te kanohi and without pressured Crown timeframes to come to some kind of resolution of these matters.” 
​
“In the meantime the Māori Affairs Select Committee will be asking some questions of Crown officials in relation to due process and I am hopeful that our opposition to the components of the Ngāi Tai ki Tāmaki settlement that directly impact the mana of Ngātiwai has been heard, and the adjustments are made accordingly to the Ngāi Tai Settlement.”

Please go to the Ngātiwai Trust Board website under the ‘Resource Centre’ to read the NTB full submission to the Maori affair Select Committee –  www.ngatiwai.iwi.nz/resources
​

On the 31st October 2017 the Waitangi Tribunal released its report on the Ngātiwai Mandate Inquiry. 

The report makes the following findings:

• The Crown improperly pressured the Trust Board into responding to the Government’s timetable and settlement policies.
• The process of determining the claimant definition was unsatisfactory and incomplete at the time the Deed of Mandate was recognised by the Crown.
• The Crown recognised a Deed of Mandate that:
  • Does not include mechanisms for individual hapū to consent to the mandate, nor to withdraw from it.
  • Does not include mechanisms for individual hapū to consent to the mandate, nor to withdraw from it; empowers an entity, the Ngātiwai Trust Board, that as presently structured is not ‘fit for purpose’ to represent the hapū named in the Deed of Mandate, including the shared hapū; and
  • Proposes supporting structures or advisory bodies that do not provide meaningful representation of hapū.
• There has been unequal treatment of hapū. Some were settled separately or released from the Deed of Mandate, as compared to other hapū who remain within the Deed of Mandate and have no mechanism to withdraw.
• There is no clear and robust Crown policy for dealing with the range of interests, including ‘shared’ interests that need to be accounted for in Treaty Settlement Mandates.
• Crown policy has had the effect of sharing hapū claims among mandated entities without ensuring that hapū are able to exercise tino rangatiratanga.
• In recognising the mandate of the Ngātiwai Trust Board to negotiate a settlement of the historical claims of Te Iwi o Ngātiwai without the support or consent of the hapū named in it, the Crown has breached the Treaty principle of partnership and the active duty of protection by failing to protect actively the tino rangatiratanga of the hapū included in the Deed of Mandate.  
• The Crown also breached the principle of equal treatment in relation to the hapū who remain within the mandate and have no realistic prospect of being able to withdraw, vis a vis those hapū earlier allowed by the Crown to settle separately or that have been released from the mandate without explanation.

The report makes the following recommendations:
Mediation

• Mediated or facilitated discussions take place to debate the unsatisfactory elements of the Deed of Mandate (see “matters to be resolved” below).
• An agreed number of hui involving all parties, including the Trust Board, conducted by an agreed mediator, mediators, or facilitators, to seek agreed formulae or acceptable solutions.
• The Crown fund this reconciliation process.
• If agreement is reached on a pathway forward, then re-engagement with the Crown will be required to seek the Crown’s agreement to any change proposed to the Deed of Mandate.  
• If successful, the Deed of Mandate should then be amended and re-submitted to the parties, including the twelve hapū listed in the Deed of Mandate (at section 12) for endorsement or rejection.

The longer route

• In the event of rejection by the parties, the Tribunal recommend withdrawal of the mandate and the setting up of a new entity such as a rūnanga or taumata, named and organised more inclusively and able to represent all hapū and groups in the inquiry district, whether or not they are Ngātiwai.
• The Crown should also fund this second process.

Matters to be resolved
In either case, the matters to be resolved through debate would be as follows:

• the claimant definition,
• an acceptance by the negotiating body that it represents Ngātiwai and other iwi or hapū of the takiwā,
• the representation of hapū including kaumātua on the negotiating entity,
• decision-making powers for hapū/kaumātua representatives,
• a non-exclusive name for the revised negotiating body,
• an agreed withdrawal mechanism for single hapū or groups of hapū,
• a disputes resolution mechanism, and
• a generally accepted model for the post settlement governance entity.

Suggestions

• The report suggests that the Trust Board could investigate the option of applying to the High Court for directions, or for a variation of the trust deed, to facilitate agreed changes to their structure where the thresholds for approval are unrealistically high.
• The report also suggests that any hapū or group of hapū that has participated in the process in good faith, and still wishes to withdraw at the end of it, should be assisted by the Crown to settle their Treaty claims as soon as possible, including assistance to collectivise into large natural groups and to obtain mandate(s) from their members.

Finally

• The report goes on to say that the Crown needs to take steps to ensure that its policies concerning ‘shared interests’ in negotiations are robust enough to avoid the situation that has arisen in this inquiry, where hapū claims are shared among mandated entities without ensuring that hapū are able to exercise tino rangatiratanga within any mandate.
• They also say that the Crown needs to ensure that the application of its settlement policies meets its objective which is to achieve a robust, durable, and fair settlement, and a restoration of its Treaty relationship with Maori.

Next Steps

The Ngātiwai Trust Board made a decision to pause its Treaty Settlement over a year and a half ago while the urgent hearing into its mandate took place and while we waited for the tribunal to release its Report.

Ngātiwai Trust Board Chairman, Haydn Edmonds says, “The Report from the Waitangi Tribunal has been out for over a month now, and we will continue to remain in this holding phase with our Settlement as we work through it.  We are going to take as much time as we need, and early in the new year we will hui with our people about what this report means for us, and listen to what our people say is the pathway forward for a Ngātiwai Settlement.”

“We are very excited that we now have a new Government, who has promised a fresh approach. I have advised the Minister of Treaty Settlements, that respectfully, I do not want to meet with him right now about the pathway forward for a Ngātiwai settlement until we have taken the time to understand what our whānau, hapū and iwi want.  However long that takes, we will take that time to ensure we understand what that pathway forward looks like for our people.”

“We hope that the new Minister, Andrew Little, will look closely at the issues we have been struggling with in relation to the previous Government’s overlapping claims process which were creating divisions between iwi. On that matter the Board has had to resort to filing an urgent hearing application of its own against the Crown, particularly in relation to redress the Crown has offered some of the Hauraki iwi on Aotea (Great Barrier Island).”

HAURAKI URGENT HEARING APPLICATION - WAI 2666
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The Ngātiwai Trust Board’s urgent hearing application into the “Hauraki Settlements” was filed with the Waitangi Tribunal and served on the Crown on Monday, 24th July 2017. The Crown responded to the application on 6th October 2017. In summary the Crown’s response is the Board’s application for urgency, more specifically:

• The process the Crown has followed in dealing with overlapping claims has been fair, robust and in accordance with its overlapping claims process, whilst being Treaty compliant.  The Crown say that although Ngātiwai is not satisfied with the outcome, they have no basis for challenging the process;
• Ngātiwai has not provided any information as to how the urgency criteria apply to each of the various Treaty settlements or redress deeds from which prejudice is said to arise;
• Ngātiwai is unlikely to suffer prejudice because the redress is:
  1. not exclusive redress; or
  2. not within the Ngātiwai area of interest; or
  3. is exclusive redress that does not prevent the Crown from providing redress to settle the claims of other iwi such as Ngātiwai in the same area.

The Board now have until Monday, 6th November 2017 to respond to the Crown’s submissions after which it is anticipated that the Tribunal will make a determination whether an urgent hearing will be granted.

OVERLAPPING CLAIMS ENGAGEMENT

Hauraki Iwi Settlements
Despite the Board’s best efforts, there has been no progress with the Crown in establishing hui to discuss the disputed redress as offered to Hauraki.  The Board sent a letter to the then Minister for Treaty of Waitangi Negotiations, Chris Finlayson, in August 2017 including a letter to the then Prime Minister, Bill English, in early October 2017 seeking facilitation of a tikanga-based process to resolve the disputed redress, however no response has been received.
With the new Government now in place, the Board is pleased with the appointment of Andrew Little as the new Treaty Negotiations Minister.  With Mr Little’s background, we believe that he will take a positive and fair approach to negotiations. The Board are very optimistic that Mr Little and new Attorney-General, David Parker, will provide a fresh approach to how they handle Treaty Settlements and overlapping claims.  We look forward to working with them both over the next three years.

Ngāti Whātua Settlement
The Board received a letter from the Crown on 31st August 2017 setting out the proposed redress for Ngāti Whātua and the timeframes for overlapping claims engagement, with written feedback due to the Crown by 13th October 2017.
On 4th October 2017 the Board responded to the Crown that from its experience in dealing with the Crown’s overlapping claim process to date (i.e. the Hauraki and Marutūāhu experience), the process has not worked and consequently the Board would not engage in such a process again. 
Instead the Board made direct contact with Ngāti Whātua to discuss and work through any issues together. Since then two very constructive hui have occurred with more to follow.