KEY POINTS:
The morning of April 18 doesn't bode well in the Wellington offices of Treaty Settlements and Crown Law. Under siege by disgruntled iwi, and with a Waitangi Tribunal judge turning up the heat, senior officials in both government departments decide to come clean. One imagines a very deep
in-take of breath as the email "send" button is pressed to release a tranche of documents that had been buried for four years.
As the attachments wend their way through cyberspace and across town to the Treaty of Waitangi Tribunal, few know how explosive their contents are. Within a day tribunal officials resend the previously undisclosed documents to interested parties contesting a $90 million cash and land settlement in Auckland for Ngati Whatua o Orakei.
Reaction is swift. "There is a serious question as to whether there has been misconduct on the part of Crown officials," writes Paul Majurey, legal counsel for Marutuahu iwi, including Ngati Paoa, on April 20. "It also raises the issue whether those officials have acted honourably and with the utmost good faith towards their Treaty partners," adds lawyer Stephen Clark, representing Te Kawerau a Maki, two days later. "There is no excuse for the failure by the Crown to file relevant documents," says Grant Powell, for the Hauraki Maori Trust Board, later the same day.
What's got the lawyers so riled is evidence that shows the Office of Treaty Settlements suppressed advice from a respected Crown Law historian questioning the merits of Ngati Whatua o Orakei's Auckland land claim. Plus it turned a blind eye to internal concerns about the iwi's refusal to consult with overlapping claimants - a refusal that runs counter to Treaty Settlement's policy on cross-claimants and that poses legal risks the settlement could be overturned.
Worse still, the evidence comes to light just as the tribunal is preparing to release its report on the Tamaki Makau Rau urgent inquiry held in March and sought by six Auckland iwi alleging unfair Crown practices which have seriously undermined their own Treaty claims.
Tribunal judge Carrie Wainwright is not impressed by the late revelation. Or the excuse that the material was withheld because it was not deemed relevant. On May 1 she sends a terse memorandum and directions stating the belatedly filed documents leave significant unanswered questions.
"We do not understand how they came to be overlooked until after the hearing; why there was no mention in evidence of Ngati Whatua o Orakei's disinclination to engage with the other tangata whenua groups, notwithstanding questions that should have elicited such mention ..."
She asks, too, why several historical assessments and internal memos, including those by Crown Law historian Don Loveridge and Settlements' senior policy analyst Peter Hodge, were withheld - especially when during the March inquiry, there had been plenty of questions about such matters.
That's a not-so-veiled reference to both Crown Law and Settlements behaviour during the four-day hearing when the manager of the policy, strategy and legal team for Treaty Settlements Rachel Houlbrooke answered questions evasively. As a letter from Houlbrooke to Crown Law's Virginia Hardy clearly shows, both departments were aware in May 2003 of the Loveridge assessment and yet it has never been mentioned. More astonishingly, had it not been for the meticulous work of the tribunal which figured out after the Auckland hearing that crucial evidence was missing, the documents may never have seen the light of day. It was only after a direction by Judge Wainwright on April 13 that Settlements decided to flush out its archives.
Reading what Loveridge says, it's easy to see why Settlements wanted the assessment kept secret. He is scathing of historian Bruce Stirling, who Ngati Whatua o Orakei commissioned to provide reports in support of their claims on the Auckland isthmus and the North Shore. "He [Stirling] is highly selective in his use of evidence and example, and highly partisan in his arguments and conclusions ... Stirling contributes nothing of substance to the debate with respect to Ngati Whatua and we still know relatively little about sales by other iwi."
Loveridge says there is ample evidence that Ngati Whatua understood the land sales it entered into around 1840 meant "permanent alienation." But he also picks out several areas - Judges Bay, pre-emption waiver purchases of 1844-45, and land between Hobson Bay and Onehunga - where further investigation is required.
Loveridge is dismissive, too, of Ngati Whatua's so called special relationship with the Crown. "The cordiality of their relationship with the Crown and settlers can probably be explained in part by the fact that they were never taken to be a serious military threat of any description."
The mystery here is that after specifically asking for Loveridge's considerable expertise, Treaty Settlements ignored his advice about further research, more or less binned his assessment, and proceeded to negotiate an agreement in principle with Ngati Whatua o Orakei. Tellingly, when questions are later raised about the quality of Settlement's historical research and Professor Tom Brooking, from Otago University's History Department, is called in to provide a review of the sources, he is not given Loveridge's report.
The question that has to be asked is why. Was Settlements so blinded by its zeal to settle with Ngati Whatua o Orakei that it forgot about due process? As well as being under pressure from the Government to get an Auckland Treaty settlement under its belt, a possible explanation for Settlements' loss of judgment is the influence of the late Sir Hugh Kawharu whose considerable mana may have swayed officials. The architect behind Ngati Whatua's o Orakei's various settlements with the Crown, Sir Hugh was highly respected in government circles and was uncompromising about getting the best deal possible for his people.
Treaty Settlements' secrecy throughout its negotiations with Ngati Whatua o Orakei has been a major bone of contention among claimant iwi who find it hard to accept that historical research should be deemed commercially sensitive. But since 2003 the department has refused to release historical reports - and on one occasion was backed up by then Ombudsman Mel Smith.
The released documents show that decision may have been ill-informed and that Settlements has very likely breached the Official Information Act. Following a preliminary Tribunal hearing in September 2006, Te Kawerau a Maki's lawyer Stephen Clark asked for "the research commissioned by the Crown in relation to the claims of Ngati Whatua o Orakei". Although some previously unavailable research such as the Stirling reports was provided, the Loveridge assessment and a report by a Settlements commissioned historian David Haines into Te Kawerau a Maki's own historical research was withheld.
Settlement's lack of transparency about its research of iwi wishing to settle is baffling. When Te Kawerau a Maki requested a 2003 memorandum by Settlements' Tony Sole, it eventually received the document but with paragraphs excised on grounds of "legal privilege" or "negotiation sensitive" or "negotiation strategy".
An exasperated Clark filed the following with the tribunal last week: "It is difficult to see how the material excised could compromise 'negotiation strategies' when the Crown have steadfastly refused to negotiate with Te Kawerau a Maki. The short point is as there are no negotiations in place, there never has been a negotiation to compromise." Nor does it look like there ever will be. Sole's memo concludes that the iwi "will not be able to negotiate with the Crown for at least a decade, if ever."
Clark points out that when an uncensored memorandum was - at the tribunal's insistence - finally released, it contained nothing that could "compromise relationships" with the iwi. "Indeed the tone and recommendations of that memorandum are positive and supportive of Te Kawerau a Maki entering into negotiations. What disappoints Te Kawerau a Maki more is the fact that these recommendations were not taken up."
Although Settlements' machinations and hiding of information are damaging, more damning are the internal memos of its senior policy analyst Peter Hodge who, in May 2003, after terms of negotiation with Ngati Whatua o Orakei had been established, wrote: "Ngati Whatua's lack of commitment to conferring with cross-claimants is a serious concern. It runs counter to the Crown Policy on cross-claimants and to recent tribunal findings on cross-claims." Hodge talked about the need to convince Ngati Whatua that it was in their best interests, as well as the Crown's, to initiate discussion with cross claimants. "To do otherwise would involve considerable legal risk for both parties [ie a successful cross-claims challenge to the settlement] and would establish an undesirable precedent for negotiations with other claimant groups." The refusal to engage seems to stem from the iwi's view that it's the Crown's job to deal with cross-claimants.
But by December 2003, Ngati Whatua wasn't giving an inch. "They have so far resisted engaging in dialogue with cross-claimants. We may find ourselves in a situation where an agreement in principle is signed before any real dialogue has taken place between Ngati Whatua and the cross-claimants." Hodge goes on to suggest an argument to convince Ngati Whatua to talk with cross-claimants - that in doing so the tribe would demonstrate its mana, rangitiratanga and leadership. He points out, too, that claimants' funding, which Ngati Whatua o Orakei had received, is partly provided to cover the costs associated with talking with cross-claimants.
But Hodge's pleas fell on deaf ears and an agreement in principle was signed in June 2006 without any real dialogue. And, as all the claimant iwi - Marutuahu, Ngati Te Ata, Ngai Tai, Te Kawerau A Maki and Te Taou - have repeatedly told the tribunal, Ngati Whatua o Orakei have continued to refuse proper dialogue about cross-claims.
Meanwhile, the tribunal awaits the Crown's response.
In the face of process that, in the words of Judge Wainwright, "leaves claimants insulted and disregarded", Ngati Whatua o Orakei's agreement in principle with Crown looks destined to disintegrate.
