The elements of fair process

80. ownership the resumable land at Pouākani (including the Maraetai Dam) and the Ngāumu Forest. We said the recipient of the redress should represent all of the claimants of Ngāti Kahungunu Wairarapa ki Tāmaki Nui-ā-Rua descent. We said that for a number of reasons the Incorporation and Wai 429 were not suitable recipients. We indicated that the Settlement Trust had many of the attributes of a suitable recipient although there would need to be a further process to ensure that it was the entity that the claimants chose for this purpose. We reserved this and a number of other matters for future decision.

We described the litigation that ensued briefly at the beginning of this decision. We do not think it necessary to say more at this point about the litigation but will refer to particular aspects of the courts’ decisions where they bear on our reasoning.

Analysis

81.

When the Crown urged upon us its view that ‘in all the circumstances of this case there is no breach of Treaty principles’, it described the parameters of this Tribunal’s task. There is a good deal in what the Crown said about that with which we can agree:117

15.1 There is a high threshold for Tribunal intervention in matters concerning mandate, but that does not mean the Crown can avoid its Treaty obligations.

15.2 The Tribunal should not interfere in mandate decisions except in clear cases of error in process, misapplication of tikanga Māori, or apparent irrationality.

15.6 Minority groups do not have a power of veto over the settlement process.

15.7 The Crown acts properly in settling claims without the consent of claimants, so long as it exercises caution and there may be a need to consult affected claimants.

15.8 Those challenging settlements should demonstrate the evidence of the level of support to [sic] their claims.

15.9 Those seeking resumption on behalf of others should also demonstrate the support to [sic] their application.

66.1 The Tribunal needs to weigh the interests of the collective and the reality that all Treaty settlements proceed in the context of extant litigation…Treaty settlements would be impossible if settlements could not proceed wherever there is a resumption application…

66.2 The Tribunal also needs to weigh the Wai 429 and Wai 85 chosen litigation pathway with the reality that that pathway is by its nature speculative

117 Wai 3058, #3.3.2; Wai 429, #2.61; & Wai 3068, #3.3.2 at [15] and [66]. 24