It is widely accepted that hapū – not iwi were the primary vehicles of Māori political organisation at the time of the signing of Te Tiriti o Waitangi. The Te Paparahi o Te Raki Tribunal found that:
“the fundamental unit of economic and political organisation was the hapū…Hapū were not simply large whanau but political and economic groupings based on a combination of common descent and interest.”
Recently the central role of hapū in the social and whanaungatanga structure of Māori communities has once again begun to flourish and be recognised, such as in the Ngāpuhi Mandate Inquiry, the Whakatōhea Mandate Inquiry and the hapū-driven Te Whānau a Apanui agreement in principle signed this year.
Despite the mana of hapū, the policy guiding the Crown in settling historical Tiriti claims is focused on negotiating with large natural groups of tribal interests. The Crown justifies this approach in terms of making the negotiation process easier to manage, helping to deal with overlapping interests, reducing costs and providing scope for a wider range of redress. Ultimately, however, the underlying rationale for the policy is expedience and minimising expenditure to reach a full and final settlement of historical Tiriti grievances.
However, over the years claimants, politicians and Waitangi Tribunal panel members have raised many important concerns in relation to the implementation of the large natural grouping policy.
Most importantly, the Crown, in choosing to negotiate almost solely with iwi-sized groups or larger, has chosen a process that is inconsistent with tikanga and has been subsumed by political rather than Tiriti-compliant priorities. The policy risks leaving some hapū out in the cold when it comes to the distribution of settlement redress by the large natural group. This could allow for unresolved issues for those hapū and other smaller groups to come bubbling back up after settlement, for example in the form of applications for judicial review over the legal structure, membership rules and benefit distribution implemented by the mandated large natural group. This has already been foreshadowed for some years by the number of urgent inquiries into challenges to various mandates and the processes used in achieving them and defining the settling group.
Encouragingly, the Waitangi Tribunal in the recent urgent mandating inquiries has recommended a paradigm shift towards a flexible application of the large natural grouping policy, particularly through asking the Crown to take into account the Tiriti principle of active protection and its extension to the preservation of hapū rangatiratanga. The Ngatiwai Mandate Tribunal in 2017 found that:
Where hapū are central to the social organisation of the community, the active protection of the rangatiratanga of the hapū is the primary Treaty responsibility of the Crown.
The Ngāpuhi Mandate Tribunal concluded that:
It is essential that hapū are empowered to make the choice according to the cultural preferences underpinning the exercise of tino rangatiratanga, kaitiakitanga, mana and Maori social organisation.
The Waitangi Tribunal has made clear that the Crown has a duty to act wherever possible to ensure that amicable tribal relationships are maintained and empowered. Consequently, in situations where there is a strong hapū structure, the Crown cannot apply the large natural grouping policy in a manner that would override the rangatiratanga and tikanga of the hapū with whom the Crown is attempting to restore its Treaty relationship.
The Ngatiwai Mandate Tribunal in 2017 and the Whakatōhea Mandate Tribunal in 2018 have both endorsed a 5-step guide on the minimum standards for active protection during the mandating process.
5-Step Guide on the Minimum Standards:
- The Crown needs to ensure it is dealing with the right Māori group or groups, having regard to the circumstances specific to that claimant community so as to protect its intra-tribal relationships;
- The Crown is to practically and flexibly apply the large natural group’s policy according to the tikanga and rangatiratanga of affected groups;
- Allow for an appropriate weighing of interests of groups in any recognised mandated entity, one that takes into account factors including the number and size of hapū, the strength of affected hapū, and the size and location of the population;
- Recognise the structure of the mandated entity must allow for hapū interests to be tested and hear; and,
- On the basis of this assessment, actively protect the rangatiratanga and tikanga of those hapū that 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.
Waitangi Tribunal recommendations point towards the need for a flexible, practical and natural approach to be taken when applying the large natural grouping policy. This will avoid the marginalisation of hapū and the risk of settlements being revisited by future Governments.
For More Information
Te Tiriti o Waitangi team at Morrison Kent is experienced in undertaking urgent applications regarding mandating processes to the Waitangi Tribunal.
We can assist your hapū in assessing mandating issues, meeting the Waitangi Tribunal’s criteria for an urgency inquiry and working with you in the development of evidence and presentation of your claim in the hearing process.
Wai 1040, He Whakaputanga me te Tiriti – The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (2014) at 30.
Office of Treaty Settlements, Healing the past, building a future – A Guide to Treaty of Waitangi Claims and Negotiations with the Crown (2018) at 27.
Birdling M, Healing the Past or Harming the Future? Large Natural Groupings and the Waitangi Settlement Process, New Zealand Journal of Public and International Law, (2004), at 265.
Wai 1150, Te Arawa Mandate Report (2005) at 124.
Birdling M, at page 274
Wai 2561, The Ngatiwai Mandate Inquiry Report (2017) at 35.
Wai 2490, The Ngāpuhi Mandate Inquiry Report, (2015), at 23.
Wai 2662, The Whakatōhea Mandate Inquiry Report, (2018), at 24 – 25.
Wai 2490, The Ngāpuhi Mandate Inquiry Report, (2015), at 26.
The Ngāpuhi Mandate Inquiry Report originally recommended the 5-step guide of minimal standards for active protection during the mandating process at page 31 of the Wai 2490 Report.