Decision of the Waitangi Tribunal

Ratification (a) The nature of the vote that the Settlement Trust conducted in July-August 2021 was in form and substance a ratification vote, but there was confusion right up to the time of our hearing last week about its status vis a vis the 2018 ratification vote; (b) In context the 2021 vote was the more relevant vote, and the Crown’s motives for characterising the 2018 vote as the ratification vote despite all that had happened since and the package being different in 2021 are unclear. However, it may be that the Crown wanted to rely on the 2018 vote because the numbers then were slightly better. If so, this depicts the Crown as trying to put a positive spin on levels of support about which it ought to have been genuinely concerned; (c) The information that the Settlement Trust provided to voters at a time proximate to their exercise of their vote said that ending the litigation would allow settlement to proceed without further delay, but did not explain what was happening in the courts, the interests at play, and the potential outcomes; (d) A pānui a year earlier did give much more information about this, but in order to properly inform voters at the time of the vote, it would have needed to be explained in the context of the vote that the Settlement Trust was asking voters to cast; (e) The information that the Settlement Trust provided in various materials at the time of the vote, including the video that was played at hui, was more in the nature of advocacy for the settlement rather than dispassionate information for voters to assess; (f) The process requirements set out in the 2011 and 2017 deeds establishing the Settlement Trust and the Deed of Mandate were convoluted and contradictory; (g) It was not apparent which process was the relevant one for the Settlement Trust to follow in 2021, but it appears that – to the extent that any was followed – they followed the one in the 2011 deed that gave the Settlement Trust a let-out clause in the event that the required level of approval was not reached; (h) The 2021 approval vote did not meet the levels of approval specified in the deeds (variously 70 per cent and 75 per cent). It is not apparent that the Crown and the Settlement Trust entered into the kind of process that the letout clause envisaged for agreeing between them that nevertheless the level of approval was adequate; (i) Given the other aspects of poor process, the Settlement Trust’s approval vote of 2021 attracted too few eligible voters (a turnout of 31 per cent) and 51