KEY POINTS:
The Waitangi Tribunal has handed down trenchant criticism of the Crown for withholding documents from an urgent inquiry into a proposed settlement of Ngati Whatua o Orakei's Auckland land claims.
Judge Carrie Wainwright rejected the Crown's excuse that it viewed the suppressed documents, including a 2003 report by the Crown's most senior historian challenging the historical account used in the settlement agreement, as not relevant. "We think that judgement has been exercised poorly."
She was "astounded" that Office of Treaty Settlement memos, which surfaced two weeks ago about Ngati Whatua o Orakei's unwillingness to consult with cross claimants, were also deemed unimportant and withheld.
"The question of early engagement with non-settling parties is at the centre of this inquiry. How could documents bearing on this question not be relevant?"
Judge Wainwright said the Crown had not answered the tribunal's questions to its satisfaction and appeared reluctant to do so.
"We consider that the Crown's provision of documents and evidence on matters central to this inquiry has been unsatisfactory, and the stance of the Crown Law Office in defending that performance is most unfortunate."
Paul James, Office of Treaty Settlements director, admitted there was an error of judgement in the assessment of the relevance of some documents.
"The Crown accepts that documents released on April 18 should have been provided to the Tribunal and parties in advance of the hearing."
To ensure the integrity of the process, he said Settlements and counsel would re-examine all files by May 25 to ascertain whether there may be more relevant documents.
The interchange highlights an increasingly dysfunctional relationship between the Office of Treaty Settlements and the the tribunal, and the problems of having two separate paths to Treaty settlements.
The Auckland hearing came about because six claimants are contesting Settlement's direct negotiations with Ngati Whatua o Orakei which they say prejudice their own claims.
Judge Wainwright said until now the tribunal had relied on parties co-operating to prepare evidence and put in documents in time for everyone to come to hearings adequately informed and prepared. But the Crown's reluctance and behaviour in the Auckland inquiry meant a review of that process was required.
She said while the Crown was entitled to give its own interpretation of the negotiation process, but its lawyers were also obliged to provide all documents about the process including those that didn't support its views.
Judge Wainwright said the tribunal had considered reconvening the hearing to find out if further relevant documents are being withheld, but decided to finish its report on the Tamaki Makau Rau settlement process without another hearing.
Mr James said the Crown would be grateful to the tribunal for any observations about the process for engagement with overlapping claimants in the next stages of the settlement negotiations.
