KEY POINTS:
Documents were withheld from a Waitangi Tribunal inquiry into a proposed Auckland Treaty settlement because the Crown decided they were "peripheral" or of "marginal significance".
Responding to a direction by Judge Carrie Wainwright to explain why a bundle of documents was not provided earlier to the Tamaki Makau Rau hearing in March, the Office of Treaty Settlements said the material came from an early stage of the negotiation process with Ngati Whatua o Orakei.
"While the tribunal appears to take a broader approach to the question of relevance, Crown officials sought in good faith to identify those documents which were regarded as materially relevant to the inquiry," said Crown Law lawyers.
The explanation was rejected by lawyer Paul Majurey representing Marutuahu iwi, one of six claimants contesting the $90 million cash-and-land deal with Ngati Whatua o Orakei. "It is disingenuous in the extreme for the Crown to effectively say 'we are the best and sole arbiter of relevance'," he said yesterday.
The sequence of the documents was not the issue.
"Access to these documents was crucial because it would have allowed the claimant groups and the tribunal to chart the evolution of the agreement-in-principle process and confirm the various points where it went off the rails."
The 2003 documents, which surfaced last month, show discrepancies in the process followed by the office when it was negotiating with Ngati Whatua o Orakei. The material highlights legal risks about Ngati Whatua o Orakei's refusal to talk to other Auckland iwi and brings into the open previously unseen historical research critical of Ngati Whatua's claim.
The Crown said it never sought to conceal the information, gained no benefit from withholding the documents and rejected suggestions that its officials had misled the tribunal.
The lawyers said the material showed the Crown was aware of the need to encourage Ngati Whatua o Orakei to engage with overlapping claimants and the assessment by Crown Law historian Donald Loveridge showed it did not uncritically accept the research put forward by the iwi.
But the process by which the "agreed historical account" between Ngati Whatua o Orakei and the Crown was arrived at has been critical to the Auckland inquiry.
In his review of the historical sources relied upon - which did not include the withheld Loveridge assessment - history professor Tom Brooking concluded: "Until a properly convincing and accurate historical account is produced, it will be difficult to achieve a settlement which is fair and capable of compensating for the Crown's acknowledgments of Treaty breaches."
Judge Wainwright will decide what happens next. Her options include reconvening the hearing and recalling witnesses.
