Rapua ngā tuhinga ruku tātari

The report He Pāharakeke, he Rito Whakakīkinga Whāruarua: Oranga Tamariki Urgent Inquiry is the result of an urgent inquiry into allegations concerning the contemporary actions of Oranga Tamariki. In October 2019, the Waitangi Tribunal had granted an application for urgency and had confirmed that the inquiry would focus on three issues:

• Why had there been such a significant and consistent disparity between the number of tamariki Māori and non-Māori children being taken into State care under the auspices of Oranga Tamariki and its predecessors?
• To what extent would the legislative policy and practice changes introduced since 2017, and then being implemented, change this disparity for the better?
• What (if any) additional changes to Crown legislation, policy, or practice might be required in order to secure outcomes consistent with Te Tiriti/the Treaty and its principles?

The panel for the inquiry consisted of Judge Michael Doogan (presiding), Professor Rawinia Higgins, Kim Ngarimu, and Professor Pou Temara. The hearings commenced in July 2020 and continued in October, November, and December, with closing submissions convened in February 2021.

The Tribunal came to the view that the disparity between the number of Māori and non-Māori entering care could be attributed, in part, to the effect of alienation and dispossession, but also because of a failure by the Crown to honour the guarantee to Māori of the right of cultural continuity embodied in the guarantee of tino rangatiratanga over their kāinga.

The Tribunal’s primary recommendation was that the Crown step back from further intrusion into what was reserved to Māori under te Tiriti/the Treaty and allow Māori to reclaim their space. In addition, the Tribunal recommended that a Māori transition authority be established. The primary function of this authority would be to identify the changes necessary to eliminate the need for State care of tamariki Māori.

On Tuesday 30 June 2020, the Waitangi Tribunal released The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry: Stage 1 Report in pre-publication format.

The inquiry was accorded high priority, reflecting the importance of the customary rights at stake and the immediacy of the Marine and Coastal Area (Takutai Moana) Act's alleged impacts on Māori.

The Act replaced its controversial predecessor, the Foreshore and Seabed Act 2004. Under the Marine and Coastal Area (Takutai Moana) Act, Māori can obtain legal rights recognising their customary interests in the form of either customary marine title or protected customary rights. Two application pathways are provided: Māori can either engage directly with the Crown or apply to the High Court for a recognition order. They can also choose to do both. In either pathway, applications for customary rights had to be filed by the statutory deadline of 3 April 2017.

The Tribunal’s report concludes stage 1 of a two-part inquiry. The first stage has considered whether the procedural and resourcing arrangements put in place by the Crown to support the Act are Treaty-compliant and prejudicially affect Māori. The Tribunal received 92 claims for the inquiry, and a further 75 parties were granted interested party status. Hearings were held from 25 March 2019 to 2 August 2019 before an inquiry panel comprising Judge Miharo Armstrong (presiding), Ron Crosby, Dr Hauata Palmer, and Professor Rawinia Higgins. Stage 2 of the inquiry will examine whether the broader statutory and policy issues relating to the Act itself breach Treaty principles and prejudice Māori.

In its report, the Tribunal found that the Crown did act reasonably, in good faith, and consistently with its Treaty obligations in implementing some aspects of the Act’s supporting regime. The Tribunal was also encouraged to hear that the Crown would be conducting a comprehensive review of the funding regime, with input from applicants.

Notwithstanding these positive signs however, the Tribunal found that many aspects of the Act’s supporting procedural and resourcing arrangements fell well short of Treaty-compliance and cause Māori significant and ongoing prejudice.

The Tribunal therefore recommended that the Act’s procedural and resourcing arrangements be amended to give effect to Treaty principles. Further recommendations included,urgently addressing a policy vacuum that continued to impede both the operation of the Crown engagement pathway itself and the cohesion of the two pathways and addressing funding arrangements for claimants.

The report concludes by noting that Māori would continue to be prejudiced until the Crown took steps to make the Act’s supporting procedural and resourcing arrangements fairer, clearer, more cohesive, and consistent with the Crown’s obligations as a Treaty partner.

The Report on the Crown’s Review of the Plant Variety Rights Regime, released in May 2020, is the Tribunal’s stage 2 report for the Trans-Pacific Partnership Agreement inquiry (Wai 2522).

The original claims for this inquiry were lodged in June 2015 by Dr Papaarangi Reid, Moana Jackson, Angeline Greensill, Hone Harawira, Rikirangi Gage, and Moana Maniapoto. Negotiations for the Trans-Pacific Partnership Agreement (TPPA) were underway when the claims were lodged.

The Tribunal decided to hear the claims in stages, and the stage 1 report, the Report on the Trans-Pacific Partnership Agreement, was released on 5 May 2016.

For stage 2, the Tribunal considered whether the Crown’s process for engagement over the plant variety rights regime and its policy on whether or not New Zealand should accede to the Act of 1991 International Union for the Protection of New Varieties of Plants were consistent with its Tiriti/Treaty obligations to Maori. The panel comprised Judge Michael Doogan (presiding), David Cochrane, Tā Hirini Moko Mead, Kim Ngarimu, and Tania Simpson, and the hearings took place from 4 to 6 December 2019.

The claimants said that the Crown’s process for engagement over the plant variety rights regime, and its policy on how to address UPOV 1991, were not consistent with its Tiriti/Treaty obligations of partnership and protection. The Crown argued that its engagement process, consistent with its CPTPPA obligations, was Tiriti/Treaty compliant. The Crown further argued that the outcomes of the review met, and exceeded, the relief originally sought by the claimants in this inquiry and that it has implemented the relevant Tribunal guidance as to what is necessary to meet its Tiriti/Treaty obligations.

The Tribunal found that the claims of Tiriti/Treaty breach in relation to these issues were not made out, and it supported certain aspects of the Crown’s policy. The Tribunal welcomed Cabinet’s decision to not only implement the relevant findings and recommendations of the Tribunal’s 2011 Ko Aotearoa Tēnei report but go further and provide additional measures to recognise and protect the interests of kaitiaki in taonga species and in non-indigenous species of significance.

The Maniapoto Mandate Inquiry Report was originally released in pre-publication form on 11 December 2019. It was the outcome of 10 claims made on behalf of individuals, whānau, hapū and hapū collectives. The central issue in this inquiry was whether the Crown breached the Treaty of Waitangi in recognising the Maniapoto Māori Trust Board’s mandate to negotiate the Ngāti Maniapoto settlement of historic Treaty claims with the Crown.

The hearings, held under urgency, took place in Hamilton in July 2019 with closing submissions heard in September 2019. The panel appointed to hear the claims was comprised of Judge Sarah Reeves (presiding officer), Professor Pou Temara and Dr Aroha Harris.

In December 2016, the Crown officially recognised the Maniapoto Māori Trust Board as having secured a mandate from the people of Ngāti Maniapoto to enter settlement negotiations on their behalf. The claimants alleged that the Crown’s actions, in particular the implementation of the ‘Broadening the Reach’ strategy and insufficient opportunities to voice opposition, prevented the claimants from asserting their tino rangatiratanga.

Another central theme of opposition to the Maniapoto Māori Trust Board’s mandate was that its deed of mandate did not make appropriate accommodation for hapū rangatiratanga, in contrast to the structure and approach of the entity originally established to seek the mandate, Te Kawau Mārō. Furthermore, some claimants took specific issue with either the absence or inclusion of their whānau, hapū and Te Rohe Pōtae historical claims in the claimant definition set out in the deed of mandate.

In the report, the Tribunal’s overall finding was that the Crown’s recognition of the Maniapoto Māori Trust Board’s mandate was reasonable given the Trust Board’s level of support, infrastructure and extensive involvement in previous settlements. It was also reasonable given that, prior to September 2016, the Crown had conducted lengthy discussions in good faith with Te Kawau Mārō.

However, the Tribunal found that aspects of the process to recognise the Maniapoto Māori Trust Board’s mandate were not fair nor undertaken in good faith. In particular, the Crown’s implementation of ‘Broadening the Reach’ and its fluctuating position concerning the inclusion of Ngāti Apakura in the deed of mandate breached the principles of partnership, reciprocity and equal treatment. The Tribunal concluded that ‘Broadening the Reach’ in particular prioritised the Crown’s political objectives to complete settlements within a shorter timeframe over its Treaty relationship with Ngāti Maniapoto.

The Tribunal also found that the Maniapoto Māori Trust Board deed of mandate was largely adequate for the purpose of negotiations, provided that the Crown made some amendments to the claimant definition and withdrawal mechanism.

The Tribunal did not recommend a halt to negotiations. Instead it recommended that the Crown provide distinct recognition in the deed of mandate for certain hapū, give serious thought to post-settlement governance entity options to manage and distribute the Ngāti Maniapoto settlement, adjust the resourcing and quantum for the settlement to account for the re-inclusion of Ngāti Apakura, amend the remedies clauses in the deed of mandate, and actively have regard to its whanaungatanga obligations to Ngāti Maniapoto Māori in the Treaty settlement process.

The Hauraki Settlement Overlapping Claims Inquiry Report was originally released in pre-publication form in December 2019. It made findings on four claims. The main issue for the inquiry was whether the Crown breached the Treaty of Waitangi through the overlapping claims policies, processes and practices it adopted when negotiating collective and individual settlement deeds with Hauraki iwi. A related but distinct issue was whether one Hauraki iwi, Ngāti Porou ki Hauraki, were themselves prejudiced by the Hauraki negotiation process. 
 
The hearings, held under urgency, took place in April 2019. The panel appointed to hear the claims consisted of Judge Miharo Armstrong (presiding officer), Professor Rawinia Higgins, Dr Ruakere Hond, and David Cochrane. 
 
The Pare Hauraki Collective Redress Deed, which awards shared redress for the collective interests of the 12 iwi of Hauraki, was signed in August 2018. Along with some individual Hauraki deeds, it contains redress that falls within rohe of Ngāi Te Rangi and Ngāti Ranginui (both Tauranga Moana iwi), and Ngātiwai (whose rohe extends from the Bay of Islands to Matakana in Mahurangi and includes several offshore islands). All three iwi alleged the Crown failed to undertake a proper process to resolve overlapping interests in the areas at issue, and as a result, wrongly allocated redress to Hauraki iwi.
 
The three iwi shared key grievances. One was that the Crown failed to properly consult and share information with them about redress it was proposing to Hauraki iwi. Another was that the Crown did not adequately support the use of a tikanga-based process to resolve redress disputes and to test claimed interests. Yet another was that redress the claimants had agreed to later appeared in initialled or signed deeds in an expanded or changed form. 
 
This last issue was key for Tauranga Moana iwi in particular, who objected to a provision in the collective deed allowing Hauraki iwi to participate in the Tauranga Moana Framework – an innovative co-governance mechanism for managing and protecting the Tauranga Moana harbour. Ngāi Te Rangi and Ngāti Ranginui argued that the provision granted Hauraki iwi rights in Tauranga Moana and over the framework that were not previously agreed, and that were incommensurate with their interests. 
 
The central allegation by Ngāti Porou ki Hauraki was that the Crown failed to treat them equally to other Hauraki iwi, in both their collective and iwi-specific settlement negotiations. They claimed they were denied funding and access to the Crown, among other things, leaving them without an effective voice in the negotiations, and ultimately, without a fair redress offer from the Crown. They were particularly aggrieved at the Crown’s removal of some cultural redress from their individual settlement following an overlapping claims process they alleged was biased and unsound.
 
The Tribunal found the claims of Ngāti Porou ki Hauraki were not well founded, and as such, made no recommendations in respect of them.
 
The Tribunal found the claims of Ngāi Te Rangi, Ngāti Ranginui and Ngātiwai to be well founded. It found the Crown had breached its Treaty obligations to these iwi by failing to properly consult them, failing to communicate openly, failing to share information with and between overlapping groups, adding redress after reaching initial agreements, and damaging relationships. Further, it found the Crown had breached the Treaty by failing to properly promote, allow for, and facilitate tikanga-based processes at the appropriate times, especially at the start of negotiations. Finally, the Tribunal criticised the Crown’s public guide to settlement policies and processes, Ka tika a muri, ka tika a mua (the Red Book). Echoing previous Tribunal reports, it found the book to be vague, unhelpful, and unfit for purpose.  
 
Accordingly, the Tribunal recommended that legislation giving effect to the Pare Hauraki Collective Settlement Deed, and the individual Hauraki iwi settlement deeds, not proceed until the contested redress had been through a proper overlapping claims process as set out in the report.
 
It also recommended that the Crown, when dealing with overlapping interests during settlement negotiations, fully commits to and facilitates consultation, information sharing, and tikanga-based resolution processes that reflect the Treaty principles identified in the report; and that it amend the Red Book accordingly. Chapter 5 of the report details substantive recommendations about the use of tikanga-based processes to resolve overlapping interests.

The Mana Ahuriri Mandate Report was released in pre-publication form on 20 December 2019. The report addresses a claim brought on behalf of the Ngāti Pārau hapū about the Crown’s acceptance of the ratification vote for the Ahuriri Hapū deed of settlement, and the proposed post-settlement governance entity – the Mana Ahuriri Trust.

In 2009, Mana Ahuriri Incorporated received a mandate from seven Ahuriri hapū to negotiate their historical claims. Negotiations were interrupted from September 2011 to February 2013 by a period of dysfunction among the komiti members. After the negotiations resumed in mid-2013, an agreement in principle was signed in December of that year, followed by the initialling of a deed of settlement in June 2015. A ratification process was then held for the deed of settlement and post-settlement governance entity, with a ratification vote taking place from 17 July 2015 to 21 August 2015.

The claimants argued that the ratification process for the deed of settlement was flawed. In particular, they claimed that the negotiating entity, Mana Ahuriri Incorporated, had lost its mandate and the Crown should not have proceeded with the settlement. In the claimants’ view, the Crown breached Treaty principles by failing to monitor the mandate sufficiently and by signing the deed of settlement despite a flawed ratification process and loss of mandate.

The hearings were held in Napier in February 2019, with closing submissions filed in May and June 2019. The Tribunal consisted of Chief Judge Wilson Isaac (presiding), Prue Kapua, Dr Grant Phillipson, and Dr Monty Soutar. In its report, the Tribunal agreed that the process was flawed and the Crown’s decision to proceed with the settlement in those circumstances was in breach of the Treaty principles of partnership and active protection. However, while the Tribunal found that the Crown was in breach of Treaty principles for accepting the ratification results for the Manu Ahuriri Trust, it did not find that the Crown’s acceptance of the deed of settlement was a breach.

The Tribunal recommended that, before introducing settlement legislation, the Crown obtain an undertaking from the Mana Ahuriri Trust to hold an election for all nine trustee positions, with an independently monitored voting process. It further recommended that the Crown should pay the costs of the election.

The Tribunal made further recommendations to prevent recurrence of similar prejudice in future settlement.