A recent Waitangi Tribunal report finding that the Crown should not have recognised the mandate of an Iwi Trust Board to negotiate their iwi’s historical Treaty claims demonstrates again that those responsible for their iwi’s Treaty negotiations must get their mandate processes right.

The Tribunal found that the Crown had breached the Treaty in recognising the Board’s mandate. The Tribunal made a similar finding in relation to another Iwi Trust Board late last year.

Here the Crown had improperly prioritised its goal of concluding Treaty settlements by mid–2020 over a process that was fair to the iwi, despite being aware that the iwi was divided over Treaty settlement issues. The Crown had also ignored evidence that a large number of the iwi had not participated or voted in the mandate process.

According to the Waitangi Tribunal, the Crown had preferred the Board’s mandate because it facilitated the Crown’s priority of quick settlement over hapū tikanga and rangatiratanga. The Crown failed to insist on a process that would enable the iwi to indicate support for the mandate on a hapū basis, and failed to inform itself of the levels of support and opposition to the mandate. The Tribunal recommended a process to enable the iwi to decide how to proceed and to correct the issues with the Trust Board’s voting processes.

For those involved in the Treaty settlement mandating process, this is another lesson from the Tribunal that it is vital to get your mandate processes right. Failure to do so risks a challenge in the Tribunal, further delay while mandate process issues are resolved and, in the worst case, a recommendation from the Tribunal that your mandate be withdrawn by the Crown.

Peter Johnston
Maori Issues Lawyer