litigation is pointless, then there is no risk to the Crown of removing Wai 85 from the claims to be settled.
16. The ratification of the Deed of Settlement is flawed because: (a) the Crown relies on the 2018 ratification vote, which has been overtaken by events and should not be relied on as evidence of approval for the 2021 version of the deed;15 (b) there is no more recent ratification upon which the Crown can rely, as it says the vote in August 2021 was not a ratification; (c) in fact, however, the Settlement Trust and the Crown did rely on the August 2021 vote as if it were a proper ratification.16 They did so without properly explaining: i.
the options that the voters were choosing between (a settlement worth $110 million or resumption litigation that could potentially deliver considerably more, and the relative risks and benefits);
ii.
the preliminary determination and the challenges to it; and
iii.
whether the Crown would be relying for ratification on the 2018 or 2021 votes.
(d) the confusion about the status of the August 2021 vote makes it unreliable as an indication of approval. Unanswered in the process are these important questions: if it wasn’t a ratification vote, what was it? Why do it? And what influence did it have, and should it have had, on the process?17 (e) the numbers who supported the deed both in 2018 and 2021 were inadequate – both as to the numbers who participated in the vote, and the percentage of those that voted in favour;18 (f) for the Crown to safely rely on a ratification vote, there must be a sound process leading up to the vote, a suitable number of eligible voters participating in the vote, and a suitable number of those participating voting in favour.19 In this case, none of these requirements are satisfied. 17.
Although the Tribunal’s preliminary determination did not find that the Maraetai dam and associated land should go back to the Incorporation, the
15
In 2018 when that ratification vote took place, the resumption application had not been heard, the Waitangi Tribunal had not yet produced its preliminary determination, the different emphasis in this revised deed of settlement on the Crown’s Treaty breaches at Pouākani and the new apology for those breaches. 16 Wai 3058, #3.1.7 at [1.5] & [74] – [77]. 17 Wai 3058, #3.3.3 at [133]. 18 Wai 3058, #3.3.3 at [117] – [118]. 19 Healing the Past, Building a Future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown (the Red Book) (Office of Treaty Settlements, Wellington, March 2015) at 65.
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