The first Te Arawa Mandate Report, released August 2004, inquired into and reported on claims concerning the Crown’s decision to recognise the mandate of Nga Kaihautu o Te Arawa Executive Council (the executive council) to negotiate the settlement of all Te Arawa historical claims. In it, the Tribunal found that there were flaws in the Crown’s monitoring of the mandate process, but that none of those flaws amounted to a breach of Treaty principles. It made a series of suggestions by which the Crown and the executive council could reconfirm the executive council’s mandate. Accordingly, the executive council carried out a process to reconfirm its mandate, which was monitored and ultimately accepted by the Crown.
The Te Arawa Mandate Report: Te Wahanga Tuarua reports on claims about this reconfirmation process, including that the Crown and the executive council did not follow the Tribunal’s suggestions when implementing it.
The Tribunal has found that the Crown did not breach the principles of the Treaty of Waitangi in its monitoring of the reconfirmation process, and in its acceptance of the outcome. Ten of the original Arawa groups reconfirmed the mandate, while three withdrew from it. Those Te Arawa groups which reconfirmed their support for the council’s mandate have exercised their tino rangatiratanga, and they will now negotiate their claims with the Crown.
However, in a few important areas, the reconfirmation process departed from the Tribunal’s August 2004 suggestions. This has left a minority of claimant groups in an unsettled position. These hapu need to be given the opportunity to properly and formally confirm their support or otherwise for the executive council’s mandate. The Tribunal expects their positions to be resolved after the executive council reviews its rules and accountability in May 2005, and establishes a process for doing so.
Two Te Arawa groups, Ngati Makino and Waitaha, were not part of the reconfirmation process, as they had never mandated the council. In respect of their claims, the Tribunal found that the Crown rejected its August 2004 suggestion that it negotiate with Ngati Makino at the same time as with the executive council, and that it accord priority status to negotiations with Waitaha. These two groups have special circumstances, and have agreed to negotiate their claims together. The Tribunal found that the Crown was in breach of the Treaty principles of partnership and of equal treatment of tribes, when it recognised Ngati Makino’s mandate back in 1997 but never negotiated with them, and still would not negotiate with them today alongside the executive council. Again, it recommended that the Crown commence negotiations with Ngati Makino, and accord priority to negotiations with Waitaha.
The Tribunal then turned to the situation of those Te Arawa groups which had not reconfirmed the executive council’s mandate – Ngati Whakaue, Ngati Wahiao, and Ngati Rangiwewehi. The effect of the withdrawal of these groups, in combination with the non-participation of Ngati Makino, Waitaha, and Tapuika, is that almost half of Te Arawa have now resolved to stand outside the executive council mandate.
The Tribunal believes that the drop in support for the executive council mandate among the iwi/hapu of Te Arawa will create a new set of problems for the Crown. There will be very significant overlaps between core Te Arawa claims, some of them inside the negotiations, some of them outside. The Tribunal is concerned that the Crown’s proposed process for managing these overlapping claims, as set out in the terms of negotiation, will in fact put groups outside the executive council at a significant disadvantage.
Therefore, the Tribunal believes that to proceed with negotiations with just over half of Te Arawa, while leaving the other groups waiting (for an unspecified time) for an opportunity to negotiate and settle their claims, would be inconsistent with Treaty principles. It believes that Treaty breaches and prejudice will inevitably arise. Instead, the Crown should consider entering contemporaneous negotiations with groups outside the executive council mandate, such as the Ngati Whakaue cluster and Ngati Makino/Waitaha, in order to act consistently with the Treaty.
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