Crown and Treaty group failed hapu¯
A Napier Treaty group made a ‘‘secret deal’’ with the Crown, failed to disclose accounts to hapu¯ , did not hold elections as required, and took out a large loan without informing members.
Despite being alerted to concerns by hapu¯ , the Crown signed a deed of settlement with the group in 2016.
Now the Waitangi Tribunal has found the Crown breached Treaty principles and has recommended a raft of measures it should take to address the failures, as well as ways it should prevent similar failures in future.
The breaches relate to the Wai2573 claim, brought by Nga¯ ti Pa¯ rau, one of seven hapu¯ whose historical claims are being settled through the Ahuriri Hapu¯ Deed of Settlement.
In 2009, the hapu¯ gave a mandate to Mana Ahuriri Incorporated (MAI) to negotiate their claims.
MAI experienced years of dysfunction before 2015, when a ratification process was held for the deed of settlement and formation of the post settlement governance entity, Mana Ahuriri Trust.
Pa¯rau and two other hapu¯ raised concerns with the Crown about the legitimacy of MAI, but in November 2016 the Crown signed the deed of settlement, which involved financial and commercial redress of $19.5 million, and vesting of some properties to the hapu¯ .
In the weeks before the deed was signed Pa¯ rau leaders filed Wai2573. They said the ratification process had been flawed and that MAI had lost its mandate because it had failed to hold elections or present audited accounts to annual general meetings.
They also said the Crown had failed to monitor MAI properly and by signing the deed it had breached the Treaty.
An urgent Waitangi Tribunal hearing was held in Napier in February, 2019. The tribunal released its report yesterday.
The report said MAI’s constitution and the dead of mandate clearly required an election of MAI’s nine committee members every two years from 2011, with a rotation election in alternate years to ensure the whole committee could not go out of office at once.
But just one election had been held since 2011; a 2013 election for just two members. When the 2015 election date came around, the committee refused to hold an election.
Their decision was overturned at MAI’s annual general meeting in December 2015. That resulted in a facilitation process by Sir John Clarke that ended with MAI offering the Crown a ‘‘secret deal’’ – elections of only two positions after the deed was signed.
The tribunal found that Crown’s decision to accept the secret deal, without the mandate of the Ahuriri claimant community, was a breach of Treaty principles and it should have taken account of MAI’s breach of its constitution and deed of mandate.
MAI had failed to present any accounts to its annual general meetings for the 2012/13, 2013/14 and 2014/15 financial years until that meeting in December 2015.
The MAI committee had taken out a $500,000 loan in 2013 but hadn’t told the claimants, who only became aware of the loan, and MAI’s ‘‘substantial deficit’’ of more than $500,000 at that meeting.
The tribunal said it did not wish to understate the Crown’s flaw in failing to monitor the mandate, but it did not find this a breach of Treaty principles.
It found the Crown’s acceptance of the deed of settlement was compliant with Treaty principles but it had breached Treaty principles by failing to pick up on MAI’s flawed and unfair process used to verify the whakapapa of members who voted for ratification.
MAI had disqualified one fifth of all special voters, all bar one of whom had been entitled to register and vote. If their votes had been counted, it meant just 56 per cent of voters were in favour of the post settlement governance entity. A vote that low would have required the Crown to rerun the ratification of the entity.
By characterising those who had raised concerns as ‘‘a small number of disaffected and articulate Ahuriri Hapu¯ members’’ the Crown had discounted the weight of opinion in the claimant community, the tribunal said
The tribunal recommended that the Crown obtain an undertaking from Mana Ahuriri that an election for all nine trustee positions before settlement legislation was introduced, with an independently monitored voting process to be completed.
It also recommended that an election for nine positions on Mana Ahuriri Trust. These should be paid for by the Crown and occur before settlement legislation is introduced, the tribunal said.
In order to prevent similar faults in future settlements, the tribunal also recommended other changes around how the Crown undertakes monitoring of accountability in mandates and constitutions. It also recommended the Crown provides or funds governance training for committee members of mandated entities and that it considers funding and assistance to mandated entities in the enrolment of members.
Piri Prentice, who chaired MAI and now chairs the post settlement governance entity Mana Ahuriri Trust, said MAI had done nothing wrong, and he didn’t think the report raised any concerns about it.
‘‘The tribunal thing was against the Crown . . . It doesn’t raise any issues with MAI because MAI completed its objectives as an incorporated society,’’ he said.
Prentice said MAI gave good reasons for not holding elections and ‘‘it had all been properly explained’’.
Spokesperson for Nga¯ ti Pa¯ rau, Matthew Mullany, said the hapu¯ was delighted that the tribunal has finally determined its Wai 2573 claim to be well-founded.