Large natural groups and mandating

Preface

Negotiations with large natural groups

Mandating for negotiations

Questions and answers

Preface

The following sections, Negotiations with large natural groups and Mandating for negotiations replace the Negotiations with large natural groups section on page 39 of the Red Book and the Mandating for negotiations section on pages 39-48 of the Red Book 2018 PDF edition. 

The updated sections better reflect current Crown policy and practice in these areas. 

Negotiations with large natural groups

The Crown strongly prefers to negotiate comprehensive settlements with large natural groups. Comprehensive settlements are intended to settle all of the historical Treaty of Waitangi claims of the group, including all the claims group members have filed with the Waitangi Tribunal (Wai claims). Large natural groups are typically claimant groups with common interests (such as shared whakapapa or shared history), rather than individual claimants, hapū or whānau. The Crown’s view is that this makes the settlement process more robust. It helps claimant groups to manage interests they have in common, is more comprehensive, allows for wider redress options, and is more durable. This approach also makes negotiations easier to manage and less costly for both the Crown and claimants. 

Settlements involving large natural groups allow shared whakapapa, history, and experience of Crown wrongs to be addressed together, rather than piecemeal and with a proliferation of overlapping interests. For example, it is common for many individual claimants in a defined area to have been affected by the same Crown actions or omissions. The Crown’s view is that a shared resolution makes for durable settlement outcomes. 

Comprehensive negotiations with large natural groups allow the Crown and mandated representatives to negotiate a settlement package that includes a wide range of redress. Redress is the term we use for all the ways the Crown can make amends for the wrongs it has done. For instance, many of the options available for cultural redress (see Part 3 of the 2018 Red Book) are only workable and cost-effective for large natural groupings. Having a wide range of redress means the settlement is more likely to last because it meets a greater number of needs. 

The Waitangi Tribunal has generally supported the Crown’s preference to negotiate with large natural groups. In its Pakakohi and Tangahoe Settlement Claims Report (2000), the Waitangi Tribunal says: ‘There appear to us to be sound practical and policy reasons for settling at iwi or hapū aggregation level where that is at all possible.’  

The Mohaka ki Ahuriri Report (2004) states ‘The Crown’s policy is to settle with large natural groupings, and we support this… Settlement should be made at the hapu rather than the whanau level… Our consistent position is that individual whanau claimants should not be treated separately from the entire class of persons who suffered the particular losses.’  

Subsequent Waitangi Tribunal inquiries have reiterated support for the Crown’s preference to settle with large natural groups, but with some qualifications. In the Ngāpuhi Mandate Inquiry Report (2015), the Tribunal notes that it has, in the past, supported the goal of an iwi-wide, unified approach to settlement negotiations as likely to provide claimants with the best results. But it recognised that they might wish, and had the right, to organise themselves into smaller regional collectives, where hapū are closely related by whakapapa and shared history. In the same report, the Waitangi Tribunal says the Crown has obligations to ‘practically and flexibly apply the large natural groups policy according to the tikanga and rangatiratanga of affected groups’. 

The Crown has considered the Waitangi Tribunal’s recommendations and applies the large natural group policy flexibly and practically, depending on the context.  

A large natural group enters into comprehensive settlement negotiations with the Crown through their mandated representatives. 

In the Ngātiwai Mandate Inquiry Report, the Tribunal suggested that ‘the Crown needs to take steps to ensure 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’.  

The Crown recognises that, due to the nature of whakapapa, hapū or groups of claimants may be included in more than one large natural group. Their claims may be settled in more than one historical Treaty settlement. Shared hapū dynamics tend to be unique to the hapū and iwi involved. Finding the right approach to a large natural group should be done in a way that is consistent with the tikanga of the groups concerned. 

Distinct recognition of hapū and whānau interests through specific settlement redress options can occur as part of a wider settlement package (refer to the section Hapū or whānau interests on page 61 of the 2018 Red Book).  

Mandating for negotiations

Introduction to Mandating

What is mandating?

A ‘mandate’ is the authority a claimant group gives to representatives of the group, to represent them in historical Treaty settlement negotiations with the Crown. The process of choosing the representatives is called ‘mandating’ 

Claimant groups decide on mandates, not the Crown. To reach a mandate, the potential representatives take part in a mandating process that is consistent with the claimant group’s tikanga and in an open, transparent and informed way  

The Crown’s role is to support a claimant group through the mandating process and to recognise a mandate and begin settlement negotiations. The Crown seeks to ensure that mandating processes are, as far as reasonably possible, in accordance with the tikanga of the claimant group

The Crown will recognise a mandate if it is satisfied: 

a) the claimant group has conferred it on the representatives through an open, transparent process that is consistent with the group’s tikanga, and 

b) the contents of a Deed of Mandate meet the Crown’s requirements (what's in a deed of mandate?)

The mandating process is one of the most important stages in the Treaty settlement process. Many of the grievances of the past relate to agreements made between Māori and the Crown, where the Crown dealt with people who did not have the mandate to make those agreements. A strong mandate protects all the parties to the settlement process: the mandated representatives, the claimant group they represent, and the Crown. 

Key principles of mandating

Four principles guide the mandating process:

  1. Responsibility
  2. Accountability
  3. Transparency
  4. Flexibility

Principle of representation

The principle of representation requires that the Crown is assured that the mandated representatives represent and act on behalf of their claimant group.  

Before deciding whether to accept the proposed representatives as mandated by their claimant group, the Crown will take reasonable efforts to ensure it is informed of the levels of support for and opposition to a mandate. In the Whakatōhea Mandate Inquiry Report (2017), the Tribunal found that ‘the Crown did not sufficiently inform itself of the true levels of support for and opposition to the Pre-settlement Trust mandate prior to recognition’. 

Principle of accountability

The principle of accountability means the mandated representatives are responsible to the claimant group for their decisions and actions, as set out in the mandate strategy and the Deed of Mandate. The representatives should have processes for explaining to their members what they are doing, and members should be able to seek and receive information from their representatives. For more details, refer to the section What is in a Deed of Mandate? 

Principle of transparency

The principle of transparency ensures that mandating processes, and decisions made by the mandated representatives and the Crown, are clear and identifiable to the claimant group. Transparency includes there being early and open engagement, by the potential mandated representatives and the Crown, with those affected by the proposed mandate process. This includes Wai claimants. It is important that members of a claimant group have sufficient information to enable them to understand the basis on which the mandate is sought and to confer a mandate. 

Principle of flexibility

The principle of flexibility is about the Crown being responsive to the tikanga and circumstances of the claimant group, in relation to applying Crown policy for large natural groups and mandating. The Crown seeks to be sufficiently informed about the circumstances and tikanga of a claimant group so that it can understand where flexibility is required in mandating processes for that group.  

Each group seeking a mandate may follow a different process to be informed about, discuss and agree to a mandate. For example, while the Crown recommends a ballot of members to approve a mandated entity, the Crown may in certain circumstances agree to a group mandating through mandating hui only. 

The claimant group chooses its mandated representatives

The claimant group’s role is to decide who will be their mandated representatives, who will be able to enter into negotiations with the Crown for the settlement of historical Treaty of Waitangi claims.  

Mandated representatives are accountable to the claimant group. The claimant group needs to feel assured that the mandated representatives legitimately gained the right to represent them. This can only be achieved through a transparent process that is in accordance with the tikanga of the claimant group.  

In some cases, the claimant group may confirm the mandate of an existing representative organisation (for example, their iwi rūnanga). This mandate gives the existing representative organisation the authority to appoint negotiators on behalf of the claimant group. There is flexibility in a claimant group applying their tikanga and rangatiratanga to their representative organisation.  

Types of existing mandated representative organisations in recent times have included: 

  • an existing Māori Trust Board (eg Maniapoto)
  • a purpose-built charitable trust (eg Whakatōhea)
  • an existing trust (eg Ngāti Hāua).

Other arrangements have included: 

  • three individual negotiators reporting to hapū chairs (eg Te Whānau-a-Apanui)
  • an individual negotiator appointed by, and reporting to, a tribal parliament (eg Waikato-Tainui remaining claims).

What is the Crown's role in mandating?

The Crown’s role is to support the process and recognise a mandate, if it has been conferred in accordance with the four principles above.

The Office for Treaty Settlements and Takutai Moana – Te Tari Whakatau provides early advice to the representatives seeking a mandate, and reviews and provides feedback on the proposed mandate strategy. Te Tari Whakatau ensures there has been appropriate consultation with the claimant group and Wai claimants (this is detailed in the Submissions section). It also publishes the draft mandate strategy and Deed of Mandate, and Crown officials receive submissions and observe mandate hui.  

The Crown will take steps to develop a reasonable understanding of a claimant group’s circumstances and tikanga. In the Maniapoto Mandate Inquiry Report (2018), the Waitangi Tribunal recommended the Crown prioritise its Treaty relationship with the claimant group by having an active regard to its duty of whanaungatanga. The Crown seeks to preserve and promote relationships within the claimant group and with overlapping groups during mandating and the wider settlement process.  

At the Crown recognition stage, officials report to Ministers on whether and how the key principles underlying mandating have been met. Ministers decide whether to recognise a mandate has been duly conferred by a claimant group.

The Crown actively considers the minimum standards for mandating set out by the Waitangi Tribunal

In the Ngāpuhi Mandate Inquiry Report (2015), the Waitangi Tribunal articulated minimum standards. These ‘provide the appropriate test of the Crown’s duty of active protection’ in a mandating context. The Ngātiwai Mandate Inquiry Report (2017) re-iterated the importance of minimum standards.  

The ‘minimum standards’ encompass both: 

  • the scope of the large natural group (whether hapū are within scope of the large natural group)
  • the structure of the entity, to provide for appropriate hapū representation. 

The Crown actively considers the minimum standards throughout the mandating process to: 

  • "ensure it is dealing with the right Māori group or groups, having regard to the circumstances specific to that claimant group to protect its intra-tribal relationships.
  • practically and flexibly apply the large natural groups policy, according to the tikanga and rangatiratanga of affected groups.
  • allow for an appropriate weighing of interests of groups in any recognised mandated entity, taking account of factors including: 
    • the number and size of hapū 
    • the strength of affected hapū  
    • the size and location of the population 
  • recognise that the structure of the mandated entity must allow for hapū interests to be tested and heard 
  • on the basis of this assessment, actively protect the rangatiratanga and tikanga of hapū who are opposed to their claims being negotiated by the mandated entity and weigh this protection of hapū with that of non-hapū interests in the modern context.” 

The Crown recognises it must have sufficient understanding of the claimant group to meet its Treaty obligations. It must be sufficiently familiar with the particular circumstances and tikanga of the group (and the hapū) to make an assessment of whether to recognise a mandate. 

Importance of seeking early advice from Te Tari Whakatau

Obtaining a strong mandate that the Crown can recognise can be a demanding process. Groups will need to take different approaches, in accordance with their tikanga. This is the claimant group’s area of expertise.  

Te Tari Whakatau can provide claimant groups, or potential representatives who intend to seek a mandate, with information about processes that have worked so far. They can also explain in more detail the Crown’s specific requirements for a Deed of Mandate. Any potential representative wanting to obtain a formal mandate for negotiations is strongly advised to contact Te Tari Whakatau before starting the mandating process. To contact Te Tari Whakatau, complete the enquiry form at https://whakatau.govt.nz/contact-us(external link) or phone (04) 494 9800. A negotiation team will then contact you.

Timeframes

Mandating typically takes 12–18 months. This allows time for a group to develop a mandate and work through issues to make it as robust as possible. Investing the time and resources may make the negotiations process smoother and reduce the risk of litigation. In response to the Ngātiwai and Whakatohea Mandate Inquiry reports, the Crown agrees to work to timeframes for mandating processes that are reasonable and Treaty consistent, having regard to all the circumstances.  

Mandating process

Mandating strategy

Once a claimant group, or a potential representative, has contacted Te Tari Whakatau, the potential representative will need to submit a draft mandate strategy to Te Tari Whakatau for consideration. Te Tari Whakatau’s and Te Puni Kōkiri’s review is to support an open, transparent and informed mandate conferral process. The draft mandate strategy sets out the process the potential representative intends to follow to seek a mandate from the claimant group. For example, this could include how the potential representative intends to engage with the claimant group and a proposal for how voting on the mandate will work.  

In establishing what is good practice for a mandate strategy, the Crown has reflected the findings and recommendations of the Waitangi Tribunal. In the East Coast Settlement Report (2010), the Waitangi Tribunal recommended that any mandating strategy must include: 

  • the specific claims (Wai numbers) to be included in a proposed settlement
  • a clear definition of the claimant group on an iwi, hapū, marae and whakapapa basis
  • the specific geographical area to be covered by a proposed settlement. 

In the Ngāpuhi Mandate Inquiry Report (2015) and the Ngāti Wai Mandate Inquiry Report (2017), the Waitangi Tribunal was critical of the lack of what it considered to be a ‘workable’ withdrawal mechanism. In the Whakatōhea Report the Tribunal found the Crown breached the Treaty when it recognised a mandate with an unfair withdrawal mechanism. The Crown now considers whether there is appropriate provision for hapū withdrawal mechanisms when such a mechanism accords with the tikanga of the claimant group concerned. 

The draft mandate strategy should include a preliminary version of the information required for a Deed of Mandate including: 

  • a proposed definition of the claimant group
  • a proposed mandate resolution which the claimants will vote on – that the claimant group intends to seek a comprehensive settlement of its historical Treaty of Waitangi claims. 
  • a proposed list of the historical claims that are intended to be settled (including Wai claims) 
  • the proposed area of the claimant group’s interests for settlement negotiations 
  • the proposed mandated representatives seeking authority to represent the claimant group in negotiations with the Crown  
  • the proposed process by which the potential representatives will seek the claimant group’s authority to represent them in negotiations, in accordance with the tikanga of the claimant group
  • a statement outlining the accountabilities of the mandated representatives
  • provision, if appropriate, for hapū to withdraw from the mandate if that is their wish, setting out the process by which it is to occur, with notification to Te Tari Whakatau.  This provision is to be included if there is more than one hapū within the large natural group and if it would be in accordance with the tikanga of the claimant group. There may be exceptions to requiring hapū withdrawal provisions, for example when a group’s tikanga does not include hapū based decision-making. 

Submissions

Once a draft mandate strategy is agreed with Te Tari Whakatau and Te Puni Kōkiri, Te Tari Whakatau will: 

  • publish a summary of it and notification of the Deed of Mandate on its website for 21 days and invite submissions from the claimant group and any other submitters
  • publish information in newspapers on the claimant definition and the proposed list of the claims that are intended to be settled
  • contact members of the claimant group (in particular, relevant Wai claimants or groups) to inform them that their claims may be settled by the proposed negotiations
  • repeat the call for submissions on the draft Deed of Mandate at the end of the mandating process to help gauge levels of support for the proposed mandate. 

Te Tari Whakatau undertakes these steps to ensure there is openness and transparency to the mandating process, ensuring all adult members of a claimant group have the opportunity to have their say. This is a direct result of the findings of the East Coast Settlement Report (2010). 

Te Tari Whakatau will work with the potential representatives to resolve any issues with the draft mandate strategy that may have arisen from the submissions process. Te Tari Whakatau will seek to ensure that the potential representatives undertake adequate consultation if hapū are being added or withdrawn from a claimant definition (ie that hapū, whānau and their kaumatua are properly consulted in hui-a-hapū or other processes conducted according to their tikanga). Once Te Tari Whakatau and Te Puni Kōkiri are satisfied the draft mandate strategy meets requirements, they will endorse it as the mandate strategy for the purposes of proceeding to mandate hui.

Information and mandate hui

The mandating process involves information hui, where dissemination and consultation on the mandate occur by those seeking to be mandated representatives. The information hui provides transparency and openness about the mandate process and the opportunity for members of the claimant group to ask questions about the mandate sought. 

Mandate hui are where the claimant group have the opportunity to vote on who should represent the claimant group in negotiations with the Crown.  

Publicising of information and mandate hui 

The mandating process, and the information and mandate hui, should be well publicised to ensure that as many members of the claimant group as possible are given a reasonable opportunity to take part. Publicising by those seeking to be representatives includes: 

  • public notices in national and local newspapers (at least three weeks before each hui)  
  • notices on local radio stations 
  • information on claimant group websites and social media 
  • pānui or newsletters to those on the register of members of the claimant group.

Information and mandate hui are held in areas where members of a claimant group live, including if appropriate, areas outside the claimant group’s area of interest. This encourages participation by members of a claimant group in the mandate process, in a kanohi-ki te-kanohi manner where possible.  

Claimant groups have live-streamed hui to reach as many members of a claimant group as possible, particularly those who cannot easily leave home.  

The fullest possible participation by members of a claimant group in the settlement process in these early stages can reduce the possibility of delays to the completion of a settlement.

Conferral of mandate

The mandate process will culminate in a formal decision by the claimant group on whether to confer their mandate on the representatives seeking the mandate. Some examples of the decision-making process, depending on the tikanga of the claimant group, include:  

  • a postal ballot 
  • voting at hui 
  • hapū by hapū consensus decision making 
  • and/or decisions by existing tribal governance.  

The decision-making process is an articulation of the principles of representation as well as an expression of rangatiratanga.  

Recent examples of tikanga-based mandate decision-making processes include: 

  • vote of tribal parliament (eg Waikato-Tainui remaining claims) 
  • conferral of mandate by hapū at hui ā-hapū (eg Te Whānau-a-Apanui) 
  • postal/in-person and online voting options of one person-one vote (eg Ngāti Maru). 

One way to ensure that members of the claimant group see the mandating process as fair and open is to appoint independent and neutral observers to witness the process. Te Puni Kōkiri can perform this role. This allows Te Puni Kōkiri to advise the Minister for Māori Development, when that Minister is jointly considering with the Minister for Treaty of Waitangi Negotiations, whether to recognise the Deed of Mandate.

Deed of mandate

What is in a Deed of Mandate?

The key document in the mandate recognition process is the Deed of Mandate. This is a formal statement, prepared by the mandated representatives, that outlines what the mandate covers and how the claimant group approved it. 

A Deed of Mandate includes several components necessary to commence settlement negotiations. It: 

  • defines the claimant group – setting out who the claimant group is, its ancestors, hapū and other constituent parts, to clearly define whose claims are going to be settled under negotiations conducted by the mandated representatives and who is eligible to become beneficiaries of the settlement. 
  • states the historical claims that are intended to be settled under negotiations conducted by the mandated representatives – including the Wai claims that will be settled in part or whole and any unregistered claims (that is, all claims arising from Crown acts or omissions before 21 September 1992 that are registered with the Waitangi Tribunal or not). Any claims (in part or in whole) that are not within the scope of the claimant definition will not be settled by the negotiations. 
  • identifies the claimant group’s area of interest for settlement negotiations. This is a description of an area in which the ancestor(s) of the claimant group predominantly exercised customary rights at 1840, and to which the claims mainly relate, and within which redress may be made available to a claimant group, subject to overlapping interests being addressed to the satisfaction of the Crown. 
  • states who has authority to represent the claimant group in negotiations with the Crown (the mandated representatives) and the process by which they gained that authority.  
  • describes how the mandated representatives will make decisions and the process by which the mandated representatives will appoint negotiators. 
  • includes a statement that the claimant group intends to seek a comprehensive settlement of its historical claims 
  • includes a statement outlining the accountabilities of the mandated representatives, in particular:
    • the requirements of the mandated representatives to report back to the claimant group (including on audited accounts) and the ability of the claimant group to have input into key decisions 
    • the requirement of the mandated representatives to inform claimants when any milestone is reached in the negotiations 
    • the right of the members of the claimant group to take away authority from some or all of the mandated representatives, or replace them 
    • the duty of the mandated representatives to present the draft deed of settlement to the members of the claimant group for their consideration before entering into any binding agreements with the Crown
    • arrangements for managing claimant group funding from the Crown. 
  • includes, if in accordance with the claimant group’s tikanga, provision for hapū to withdraw from the mandate if that is their wish, setting out the process by which it is to occur, with notification to Te Tari Whakatau.   
  • describes groups who have overlapping interests. 

Once satisfied the draft Deed of Mandate addresses these matters, Te Tari Whakatau will publish the draft Deed of Mandate on its website and notify in local and national media for the purpose of receiving a further round of submissions. Following submissions, Te Tari Whakatau will work with the potential representative to resolve any issues with the draft Deed of Mandate that may have arisen from the submissions process, and where necessary to amend the draft Deed of Mandate. Submission feedback, along with the outcome of the claimant group’s decision-making process to confer the mandate, will inform Crown recognition of mandate. 

Crown recognition of mandate

Te Tari Whakatau and Te Puni Kōkiri jointly report to the Minister for Treaty of Waitangi Negotiations and the Minister for Māori Development on the Deed of Mandate and the process by which the mandate was conferred. The Ministers decide on whether to recognise the Deed of Mandate.

The report verifies that:

  • the mandated representatives have been given authority by the claimant group to negotiate the settlement of the claimant group’s historical Treaty of Waitangi claims 
  • the Crown will negotiate a settlement with the mandated representatives – that is, the representatives who have the support of the claimant group 
  • the claims to be settled are clearly defined 
  • the mandated representatives have a process in place to ensure they are accountable to the claimant group 
  • the mandated representatives have developed a process to identify as many claimant group members as possible – this usually involves establishing, if they have not already done so, a register of members 
  • the exercise of rangatiratanga is provided for in accordance with the tikanga of the claimant group, with respect to the Waitangi Tribunal’s ‘minimum standards’ 
  • the Deed of Mandate provides for hapū to formally withdraw from the mandate when such a mechanism accords with the tikanga of the claimant group concerned.

The report will also consider the claimant group’s submissions and identify the extent of the support and opposition to the Deed of Mandate. The report will consider whether and how the key principles underlying mandate have been met.  

In summary, the report will provide advice on whether the Crown can be satisfied that a mandate has been conferred on representatives by a claimant group in a transparent and informed way, with the representatives accountable to the claimant group. 

The Crown can recognise the representatives’ mandate to negotiate on behalf of the claimant group once the Ministers for Treaty of Waitangi Negotiations and Māori Development, on behalf of the Crown, are satisfied the people seeking to represent the claimant group have provided sufficient evidence to verify the above requirements.  

Mandate maintenance

Recognition of the mandate by Ministers is dependent on the representatives retaining their mandate to represent the claimant group throughout negotiations.  

The Crown requires mandated representatives to regularly provide evidence that they maintain the support of the claimant group. If this evidence cannot be provided, negotiations will cease until the Crown again has confidence the mandate is secure.  

A mandate may be secure at first but can be lost if the mandated representatives lose the confidence of the claimant group. This can happen, for example, if the mandated representatives do not keep the claimant group informed of progress and issues in the negotiations, or do not follow the processes set out in the Deed of Mandate or the constitution of the mandated entity. The result may be a challenge to the mandate or rejection of the Deed of Settlement when the time comes for ratification. Following the accountability processes set out in the Deed of Mandate and the mandated entity’s constitution (such as presentation of audited accounts, an annual general meeting and elections) can help avoid mandate disputes from arising. 

To avoid mandate disputes, the mandated representatives and the claimant group should agree, through the Deed of Mandate and before negotiations start, on matters such as: 

  • how the claimant group will be kept informed (such as pānui, hui), and how often (such as the Annual General Meeting of the mandated entity) 
  • issues or stages in negotiations when the mandated representatives need to seek approval from kaumātua and kuia, or the entire claimant group 
  • how and when groups, such as whānau or hapū with particular claims, will be kept informed, and 
  • transparent processes for claimant funding and the management/operation of the mandated entity. 

The mandated representatives must retain their mandate to represent the claimant group throughout the negotiations. If negotiations are paused for a significant period, the Crown may ask the mandated representatives to re-confirm or refresh the mandate. 

If a serious mandate dispute arises during negotiations, the Crown will encourage the members of the claimant group to work together to resolve the issue. This may include, for example, using a facilitator to identify the issues underlying the dispute and assisting the claimant group members to achieve a resolution.

Limits of mandating

A mandate to negotiate only gives the mandated representatives the authority to negotiate a draft deed of settlement. Sometimes the mandated representatives may be the negotiators but in other cases their role, once authorised, may be to appoint others to negotiate. Such negotiators must act within the instructions given by the mandated representatives and regularly report back to them. 

Figure 2.7: Links between negotiators and the groups they represent 

Mandated representatives also do not gain control and management of settlement assets. All members of the claimant group must first have a say on whether the negotiated deed of settlement is accepted or not. Control over settlement assets is known as post-settlement governance and involves setting up a legal entity for this purpose. As with the final deed of settlement, the governance entity structure is subject to approval (or ‘ratification’) by the claimant group.  

The key decision points in the settlement process that require claimant group participation are shown in Figure 2.2 on page 31 of the 2018 Red Book, and more detail about post-settlement governance entities is on pages 67 – 69 of the 2018 Red Book. 

Questions and answers on large natural groups and mandating

Why has this information been updated? 

The sections of the Red Book relating to large natural groups and mandating have been updated to provide clearer information about the Crown’s policy and practice. The updated sections are intended to provide guidance to claimant groups, Te Tari Whakatau and Te Puni Kōkiri on large natural group and mandating policy and processes.  

What specific updates has been undertaken? 

Large natural groups 

The section on large natural groups has been updated to replace page 39 of the Red Book 2018 PDF edition. Key updates to the communication of information include: 

  • Claimant groups are now described as having ‘common interests’ instead of ‘tribal interests’. The term ‘common interests’ is now used because it encompasses situations where members of a large natural group may not have identical descent lines but do share common interests.  
  • The Red Book now includes a sentence to clarify that the Crown applies the large natural group policy flexibly and practically, depending on context.  
  • The Red Book now references current policy regarding the Crown’s recognition that hapū or groups of claimants may whakapapa to more than one ancestor. For that reason, these individuals or groups will come under the claimant definition of more than one large natural group. As a result, claims may be settled in more than one historical Treaty settlement insofar as the claims relate to the claimant definition. 

Mandating 

The section on mandating has been updated to replace page 39-48 of the Red Book 2018 PDF edition. Key updates to the communication of information include: 

  • The inclusion of an explanation of the principles of representation, accountability, transparency and flexibility to guide the mandating process.  
  • The inclusion of a statement regarding that, as far as reasonably possible, processes to gain mandates should respect the tikanga of the claimant group. 
  • How the Crown actively considers the Waitangi Tribunal’s ‘minimum standards’ for mandating throughout the mandating process. 
  • Reference to the Crown’s commitment to working to timeframes for mandating that are reasonable and Treaty consistent, having regard to all the circumstances. 
  • There is a section on the mandate strategy phase to reflect that this initial step is now the norm. 
  • Clarification on the role of the Crown: 
    • in supporting the process by which an entity or group seeks to obtain a mandate to represent a large natural group in negotiations; and 
    • in recognising a mandate has been duly conferred. 
  • Clarification of the need for groups to include clear and workable hapū withdrawal mechanisms in a mandate. 

Why has the Crown not undertaken a full review of the large natural group and mandating policy? 

Over time, Te Tari Whakatau has been taking into account the Waitangi Tribunal findings related to its large natural group and mandating policies. We have updated our mandating practice to reflect key findings that align with the Crown’s policy.  

The policy outlined in the Red Book (since it was created in 2002) does not require changing at this time. The current policy can be applied consistently to ensure fairness in relation to groups who have already settled, whilst maintaining flexibility to support yet-to-settle groups to progress their mandate. 

Who will the Crown negotiate historical Treaty settlements with? 

The Crown’s strong preference is to negotiate with large natural groups rather than individual claimants, hapū or whānau. 

How strict is the large natural group policy for the Crown? 

The Crown applies the large natural group policy flexibly and practically depending on the context. For example, the Crown will accept varying forms of hapu groupings, if together they still form a large natural group. 

What if the Crown’s mandating policy conflicts with my group’s tikanga? 

The Crown seeks as far as possible to allow groups to follow their own tikanga in reaching a mandate to enter into negotiations.  At the same time, Crown policy is that the Crown must feel assured a mandate process made clear information about the process available to all members of the group, that there was a good opportunity for all members to participate in the process, and that the group as a whole is ‘on board’ with the mandate.  There is always a balancing exercise between tikanga Māori and Crown policy, however the Crown is always willing to discuss this with a group and support tikanga processes where possible.  

What is a mandate? 

A mandate is the support given by a claimant group to representatives to represent them in Treaty settlement negotiations with the Crown. In order to enter Treaty settlement negotiations, the Crown must agree to recognise the mandate – it does this by assuring itself that there was a transparent mandating process that gave all members of the group an opportunity to participate. 

Who provides the mandate for a particular group? 

The mandate is provided by the claimant group, not by the Crown. The Crown subsequently decides whether it will recognise the mandate. 

What funding is available for mandating? 

Funding from the Crown is not usually available in advance for a mandating process. This is because it could be seen as taking sides before the claimant group has decided who is to represent them in negotiations with the Crown. However, once a mandating process is underway, limited ‘pre‑mandate’ funding is available from the Crown to support a claimant group to work through the process.  

Once the Crown has recognised the mandate, claimant funding is available, up to a set amount, on the completion of agreed milestones. This can include reimbursing some of the costs of obtaining the mandate if these were not covered by pre-mandate funding. It is therefore important that a claimant group seeking a mandate keeps verifiable records of its costs (see the section on claimant funding on pages 49–51 of the 2018 Red Book). Funding to assist with mandating may also be available from the Crown Forestry Rental Trust for claims that involve or could involve Crown forest licensed land. 

How can I participate in the mandating process of a group I am part of? 

You can participate by making a submission on the mandate strategy and deed of mandate. As a registered member you can vote on who has the mandate to represent the large natural group in Treaty settlement negotiations with the Crown.  

People who are not a registered member of that group (through whakapapa/genealogy) cannot participate.  

What are my options if I object to being part of a mandate? How can my hapū withdraw from a mandate? 

The Crown seeks to bring Māori with shared experience of Crown Treaty breaches together – it can be difficult to progress groups with shared whakapapa and experiences of Treaty breach on different timelines owing to their overlapping interests. However, if you think there is a case for a group of which you are part withdrawing from a mandate, you should contact the mandated representatives to discuss and work through your concerns. The deed of mandate for the claimant group may have a withdrawal process for a hapū which will need to be followed.  

What if there is a dispute about mandate? 

The Crown recognises it is unrealistic to expect every claimant group to reach 100% agreement on a mandate, or any other issue. There is no set level of support required to ensure the Crown will recognise a mandate. It is a matter of assessing all the information available, then Ministers making a considered judgement on whether the mandate is secure enough for the Crown to start or continue negotiations. 

Sometimes there will be rival claims to a mandate, with no clear majority emerging. If two or more groups each claim a large level of support within the broader claimant group, the Crown encourages the groups to work together to resolve their differences, and to approach the Crown again when the mandate is secure.  

If the Crown is not satisfied there is sufficient support to recognise a mandate, it may: 

  • ask the group seeking the mandate to address the issues that arose during the mandating process and seek re‑approval from the claimant group; or  
  • the Crown may be open to other groups seeking a mandate from the claimant group. 

What is a conditional mandate?

There may be a clear majority of support for the mandated representatives, but a significant minority, perhaps a hapū or individual marae, may be opposed. In such cases, the Crown may give conditional recognition to the mandate. In some cases of conditional recognition, the conditions must be met before negotiations can begin. In others, the conditions must be met throughout the negotiations. Te Tari Whakatau, with support from Te Puni Kōkiri, monitors conditional mandates to ensure the conditions are met. The Crown may withdraw recognition of the mandate if the conditions are not met.