claimants in Wai 85 still want the Settlement Trust to negotiate an iwi-wide settlement from which their shareholders could benefit, but ‘redress for claims concerning Pouākani needed to go exclusively to the Incorporation’.77 Despite Kingi Smiler’s communications with the Crown requesting that it negotiate directly with him about the Wai 85 claim, the Incorporation did not challenge the Settlement Trust’s mandate directly nor ask that the Wai 85 claim be removed. Similarly, the Crown says that the Wai 429 claimants have not challenged the settlement. The way the Crown understood it was that by making their application for resumption to the Tribunal, they withdrew their mandate from the Settlement Trust to the extent that it related to the Ngāumu whenua. Claimants in Wai 429 confirmed this when they made closing submissions on their resumption application before this Tribunal.78 In the hearing, Crown counsel said that when the Waitangi Tribunal found in its preliminary determination that Ngāi Tūmapūhia-ā-Rangi was not a suitable recipient of Ngaumu Forest, the Wai 429 claimants had failed in their resumption proceeding and the mandate reverted to the Settlement Trust.
55. The Crown has consistently questioned whether the claimants in Wai 429 represent the hapū they purport to represent.79 Mr Irwin cautioned against the Wai 429 claimants being allowed to rely too heavily on what the Supreme Court said in Haronga about a claim for resumption being evidence of a group withdrawing its mandate.80 Counsel said that the Crown looked at Ngāi Tūmapūhia-ā-Rangi’s processes to see whether the hapū had swung in behind the Wai 429 claimants or not. In an appropriate and careful way, counsel said, the Crown had concluded that the answer was ‘no’. But this was in December 2019. Mr Irwin said that the Crown’s view has changed in light of the evidence filed this week about the hapū-by-hapū breakdown of the ‘approval vote’ of the 2021 version of the Deed of Settlement. 56. Mr Irwin depicted the Crown as constantly assessing what it was appropriate for the Crown to be doing after we issued our preliminary determination in March 2020. The context changed again after the High Court judicial review decision in March 2021. The Crown asked itself whether the Tribunal’s decision had been quashed in its entirety. It was satisfied that all of the preliminary determination on what ‘relates to’ means was quashed, but our reasoning on the suitability of Wai 429 and Wai 85 as recipients of resumable land survived. Appeals to the Court of Appeal and the Supreme Court were in prospect, but the Crown thought that Wai 429 and Wai 85 claimants would have a hard job taking their resumption applications any further.81 (a) It was entirely appropriate for the Crown to move to negotiate an enhanced agreement with the Settlement Trust. The Minister told the Wai 85 and Wai
77
Wai 3058, #3.3.2 at [53.7]. Wai 3058, #3.3.2 at [40]. 79 Wai 3058, #3.3.2 at [38]. 80 Wai 3058, #3.3.2 at [43]; Haronga v Waitangi Tribunal [2011] NZSC 53 at [98]. 81 Wai 3058, #3.3.2 at [61]. 78
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