Wananga Claim Filed In Waitangi Tribunal
Aotearoa Institute Te Kuratini o Nga Waka Trust Board
Wananga Claim Filed In Waitangi Tribunal
Harold Maniapoto and Dr Tui John Adams, on behalf of the Aotearoa Institute, have today filed a claim in the Waitangi Tribunal alleging that the Crown has breached the Treaty of Waitangi in its recent dealings with Te Wananga o Aotearoa, primarily through its pursuit of racially divisive policies.
“We are seeking an urgent hearing because the appointment of Crown Manager is ongoing at the cost of about $90,000 per month to the Wananga, the Minister of Education’s preliminary decision to dismiss the Council and appoint a Commissioner is still pending, and the renegotiations of the Wananga’s Charter are ongoing. Depending on the outcome of those Crown actions, the Wananga could suffer significant and irreversible prejudice”.
“The Crown has made a mockery of the Treaty of Waitangi and the principle of partnership and is squarely to blame for the financial predicament and negative publicity that has hounded the Wananga this year. It should have paid most of the suspensory loan by now as required by the Deed of Settlement. Instead, the Crown has reneged on its promise to provide adequate capital funding to TWOA, appointed a Crown Manager, and tried to sack the Council. It has pursued a relentless and ruthless campaign to downsize the Wananga in election year. Those are not the actions of a Treaty partner acting in good faith.”
“To make matters worse, the Crown’s efforts to impose an illegal quota of 80% Maori on the Wananga, which has always been a racially inclusive institution as required by the law, was the real reason why the suspensory loan was not paid. There is absolutely no place for racially divisive policies in New Zealand education, and there is no way we could stand by and allow that to continue.”
Mr Maniapoto and Dr Adams say they have brought the claim in the interests of all New Zealanders and that Aoteroa Institute is not seeking any relief for itself: “If we are successful in our Claim, then the Wananga, its students, and the communities it serves will benefit, not the Aotearoa Institute.”
Aotearoa Institute has received numerous letters supporting the Wananga from various prominent individuals and organisations. Briefs of evidence in support of the claim have been filed by the New Zealand Maori Council, the Mayors of Gisborne and Waipa District, the CEO of Te Kohanga Reo National Trust, the President of the Maori Women’s Welfare League, and a Senior Lecturer in Maori Education at Victoria University.
Aotearoa Institute has been forced to bring the claim “because the Wananga has been victim of a calculated plan of action by the Crown to gain control over the Wananga and turn it into a significantly smaller institution for Maori only.”
“It is bad enough that the Crown has blatantly tried to impose ‘by Maori for Maori’ on the Wananga when it knows it is illegal, but its aggressive actions have been so successful that the Council of the Wananga cannot bring a claim itself, because it is now controlled by the Minister of Education.”
The reduced Council of the Wananga now has five members, three of which are appointed by the Minister.
“The Minister of Education has been very conspicuous in a public campaign of allegation and speculation against the Wananga, so now it is time for the truth about the Crown’s conduct to be told in a fair and independent forum, where the Wananga won’t be treated as a political football like it has all year.”
“We are saddened that the Crown has forced us to go to the Waitangi Tribunal again. The suspensory loan was meant to be a remedy for the Crown’s past failures to provide adequate capital funding for wananga, in breach of the Treaty of Waitangi, and it is disgraceful that the Crown is compounding past breaches with new breaches”.
“However the real tragedy is that the Wananga is a wonderful opportunity for iwi throughout New Zealand and the Crown to work constructively together to provide tremendous educational outcomes for all New Zealanders regardless of race. This transcends individuals and petty politics. The diversity of the Wananga’s roll is a credit to all New Zealanders and reflects their desire to learn in an environment that advances Maori culture and tradition. Why on earth would the Crown want to destroy that by cutting the Wananga’s capital funding off at the knees and making it for Maori only?”
“We expect that the Tribunal will be equally disappointed that the Crown has failed to fully implement the Tribunal’s recommendations in the WAI 718 Report. In that report the Tribunal said that ‘if wananga fail because of undercapitalisation, then the Crown has done a disservice, not only to Maori, but to New Zealand society as a whole’”.
“Unfortunately for tens of thousands of students enrolled at the Wananga, both Maori and non-Maori, the Crown has not learned its lesson, and history is repeating itself”.
Q&A: aotearoa institute waitangi tribunal claim
What is this claim generally about?
The Crown has failed to honour its promise, as recorded in a Deed of Settlement, to pay monies due under a suspensory loan. That has significantly contributed to TWOA’s financial difficulties, which has allowed the Crown to take steps to gain control over the governance and management of TWOA, including dissolving the Council and appointing a commissioner, and to downsize TWOA.
The Crown’s actions in this respect have breached numerous Treaty of Waitangi principles.
What specific grievances have been alleged?
There are numerous specific grievances against the Crown, focussing on its actions and omissions in the period from October 2004 to present. In summary, they are:
Breach of the Deed of Settlement signed by TWOA and the Crown in November 2001. Essentially, the conditions for payment of the suspensory loan were met, and the Crown failed to agree terms and conditions and pay monies due under the suspensory loan by the end of December 2004, as required by the Deed of Settlement;
Frustration of negotiations of a performance agreement for the suspensory loan throughout November and December 2004 by insisting on an illegal 80% Maori quota, that was impossible for TWOA to meet, before payments were made;
Backtracking on all negotiations on the suspensory loan in February 2005 by saying that the conditions for payment of the suspensory loan had not been met. However, the conditions relied on by the Crown do not exist under the Deed of Settlement;
TWOA proceeded with important capital developments in reliance on payment of the suspensory loan, to its detriment;
Breach of TWOA’s legitimate expectation that payment would be made given past payments under the Deed of Settlement being made, the Crown’s apparent acceptance that the conditions for payment of the suspensory loan were met, and the Crown’s assurances during negotiations over November and December 2004 that payments would be made;
The Crown’s actions in unjustifiably refusing to pay monies due under the suspensory loan created or were a significant factor in TWOA’s financial difficulties;
Failure to pay the suspensory loan enabled the Crown to take control of TWOA through the following steps:
Appointment of a Crown Manager/Crown Observer in March 2005, to take control of TWOA’s finances;
A $20 million Crown advance in May 2005 imposed further controls over TWOA’s operations. The Crown used the $20 million appropriated for the suspensory loan to make that advance;
The Hon Trevor Mallard making a preliminary decision in June 2005 to dissolve the Council and appoint a commissioner under section 195D of the Education Act 1989;
Following indications from the Hon Trevor Mallard that drastic changes to Council membership was required to avoid the appointment of a Commissioner, the Council was reduced from 14 to 5 members, 3 of whom are appointed by the Crown;
The Minister clearly did not have power under the Education Act 1989 to dissolve the Council and appoint a Commissioner;
Failure to consider remedial approaches other than the appointment of a Crown Manager and the appointment of a Commissioner, which are interventions of last resort;
Rendering TWOA incapable of taking any action to protect itself due to the reduced Council dominated by Crown appointees, meaning any resolutions adverse to the Crown cannot be taken;
Requiring a revision of the TWOA Charter to include an illegal 100% Maori quota by the end of 2008;
Insistence on the Maori quota in negotiations of the suspensory loan and Charter was in breach of TWOA’s right not to be discriminated against on the basis of race;
Making public comments which caused significant damage to the reputation of TWOA. The Crown has been unsupportive publicly, and has remained silent about its role in creating the financial difficulties through its failure to adhere to the terms of the Deed of Settlement, and its failure to properly fulfil its statutory monitoring role; and
The above actions have resulted in and will cause future serious prejudice to the integrity and viability of TWOA and to its right to exercise tino rangatiratanga over its taonga.
What breaches of Treaty principles and other causes of action have been alleged?
The statement of claim deals with the urgent matter of the suspensory loan and the possible appointment of a Commissioner and a dissolution of the TWOA Council. In particular, the causes of action cover the Crown’s:
Failure to carry out its contractual obligations to pay monies due under the suspensory loan by the end of 2004;
Breach of the Treaty principles of partnership and good faith by:
failing to enter a partnership agreement as required by the Deed of Settlement;
acting inconsistently with its obligation to work constructively with TWOA to create a strong, sustainable wananga at a time when it knew that failing to do so would create significant financial pressure;
allowing the public to believe that the difficult financial situation faced by TWOA was a result of financial mismanagement and misuse of public monies; and
making public statements effectively condemning the Council and senior management of TWOA without due process.
Breach of TWOA’s legitimate expectation that the suspensory loan would be paid, based on the Crown’s past conduct in paying monies due under the Deed of Settlement and specific assurances given in late 2004 that an agreement would be entered and payment made;
Breach of the Article 2 obligation to guarantee Maori the right to exercise rangatiratanga over its taonga. In the WAI 718 Report, the Waitangi Tribunal held that the Maori communities that created TWOA have a right to exercise rangatiratanga over their taonga, which at the very least means that they are able to exercise authority and control over the taonga;
Failure to actively protect a taonga under Article 2. In the WAI 718 Report, the Waitangi Tribunal held that vigorous action was necessary by the Crown to protect TWOA and that TWOA was in need of special protection;
Failure to allow the right of development of a taonga under Article 2 by effectively punishing TWOA for growing and developing to a greater extent than was anticipated when the Deed of Settlement was signed. The Crown took an unjustifiably narrow and incorrect approach to interpreting the Deed of Settlement, when its Treaty obligations required it to focus on substance over form;
Breach of Article 3 of the Treaty to not subject TWOA to racial discrimination. Northland Polytechnic, Wanganui Regional Polytechnic and Taranaki Polytechnic have been in equally serious if not more serious financial positions than TWOA in the past and have not been subjected to the same interventions as TWOA ; and
Breach of obligations of proper governance or Kawanatanga under Article 1. The Crown has failed to exercise its right to govern with due regard to TWOA’s rights and the Crown’s obligations under the Treaty of Waitangi.
What relief is sought?
The remedies sought by Aotearoa Institute are for the benefit of TWOA, its students, and the communities it serves. Aotearoa Institute will not gain anything from this claim apart from protecting the interests of TWOA.
Aotearoa Institute is seeking recommendations that the Crown:
Immediately cease the statutory process to dissolve the Council and appoint a Commissioner;
Enter negotiations with TWOA to convert the Crown loan into a suspensory loan;
Compensate TWOA for the loss its has suffered as follows:
The difference between interest paid on the Crown loan and what would have been paid under the suspensory loan, and the Crown Manager’s fees;
Loss of a chance to maximise enrolments;
Punitive damages for the Crown’s outrageous conduct in attempting to avoid its obligations under the Deed of Settlement;
Compensation for damage to TWOA’s public reputation as a result of the Crown’s public statements; and
Compensation to Aotearoa Institute for their expenditure in taking this claim.
Work in partnership with the Council to bring TWOA back on track financially, to establish a governance structure that includes Council members and a Tumuaki who represent the communities that set up TWOA, and to balance the Crown’s governance concerns against the need of Maori communities to exert te rangatiratanga over their taonga;
Make suitable media statements supporting TWOA;
Acknowledge that if in the future it is not satisfied that a funding condition is not met, it should, consistent with its duty of active protection, actively seek to find a remedy to ensure the condition is met.
What is the suspensory loan?
The Deed of Settlement established three categories of payment to meet the full capital funding requirements of TWOA over the period 2002-2006:
Initial redress of $25 million, which was paid soon after the Deed of Settlement was signed in late 2001;
$15 million dollars in “additional redress” ($10 million in 2002 and $5 million in 2003), conditional upon the “material achievement” of certain performance targets. The Crown paid the “additional redress” in four instalments over 2002 and 2003; and
The suspensory loan. The parties agreed that if TWOA achieved a higher growth path in student numbers (i.e. 10,900 EFTS), it would require an additional $20 million in capital funding for 2004-2006.
The suspensory loan operated at two levels. First, conditions which would trigger the payment of the loan had to be met. The conditions for payment were that TWOA achieve 10,900 EFTS by 2003 subject always to the achievement and maintenance of high quality standards. If those conditions were met, the supensory loan of $20 million had to be paid ($10 million in 2004, $5 million in each of 2005 and 2006).
At a distinct and separate second level, the Crown and TWOA had to agree the terms and conditions of the loan and the future performance criteria that had to be met for the conversion of the loan to equity (in 2007). These agreements had to be completed before the first payment was due by the end of 2004.
Were the conditions for payment of the suspensory loan met?
Yes. TWOA had easily achieved the requisite number of EFTS by 2003. It had 29,000 EFTS by the end of 2003. It had also maintained high quality standards.
What is the Maori quota, and what would it mean?
Throughout negotiations in November and December 2004, the Crown insisted that a Maori quota be included as a performance criteria for payment of the suspensory loan and/or for its conversion to equity. It constantly changed its position on what the quota should be, but by early December it indicated that a quota of at least 80% was required. It has also tried to impose a quota in TWOA’s Charter, which would reach 100% by 2008.
Meeting a Maori quota would require TWOA to significantly downsize. That is because Maori only make up 12% of the general population so to achieve an 80% quota TWOA would have to turn away non-Maori students. TWOA has around 29,000 EFTS, so it was being asked to have 21,600 EFTS, a requirement that could not possibly be achieved. At the time 15,000 Maori EFTS were enrolled, which is much more than the parties anticipated when the Deed was signed, which projected 10,900 EFTS in total.
How did the Crown know that the Maori quota was illegal?
The Crown had received Crown Law advice in 2003 that the Maori quota was illegal.
Additional redress under the Deed of Settlement (i.e. the second category of payment) was payable if certain performance criteria set out in the Deed of Settlement were “materially achieved”. One of those performance criteria was an 80% Maori quota. All of the additional redress was paid even though TWOA did not meet the 80% threshold, because the Crown had been advised it was illegal.
How has the Crown attempted to justify the Maori quota, even though it is illegal?
The Crown says that the Maori quota is required to ensure that TWOA meets the characteristics of a Wananga under the Education Act 1989 and to reflect the intentions of the Deed of Settlement.
That is wrong. First, a wananga is about ways and methods of teaching – not whom is taught. Section 162 of the Education Act 1989 states that:
A wananga is characterised by teaching and research that maintains, advances, and disseminates knowledge and develops intellectual independence, and assists the application of knowledge regarding ahuatanga Maori (Maori tradition) according to tikanga Maori (Maori custom).
This is exactly what TWOA does, for the benefit of all New Zealanders, whatever their race. As noted by the Waitangi Tribunal in the WAI 718 report:
… although Wananga are iwi based and iwi-initiated institutions, wananga are open to everybody, regardless of ethnicity. Wananaga, like their cousins – universities, polytechnics and colleges of education – are providers that teach all who wish to learn.
Second, TWOA enrols significant numbers of Maori students. At the end of 2004, it enrolled about 15,000 Maori EFTS, which equates to one third of all Maori EFTS enrolled in New Zealand. As acknowledged by the Hon Trevor Mallard in a press release in June 2005, the number of Maori students at TWOA is far in excess of what was anticipated by the parties when the Deed of Settlement was signed.
What was the WAI 718 claim about?
On 19 May 1998 Rongo Wetere filed claim Wai 718 with the Waitangi Tribunal on behalf of TWOA, Te Wananga o Raukawa and Te Whare Wananga o Awanuiarangi, alleging that the Crown had breached the Treaty of Waitangi by failing to provide adequate capital funding for the wananga in comparison to other Tertiary Education Institutions.
What were the findings and recommendations in the WAI 718 report?
The Waitangi Tribunal found that the Crown had breached the Treaty of Waitangi by failing to provide adequate capital funding for wananga and recommended that a one-off payment of a capital sum be made to each wananga.
The specific findings were that:
the claim was well founded;
the Crown had breached the principles of the Treaty of Waitangi in failing to honour its obligation actively to protect Maori rights in matters relating to tertiary education and in particular by failing to provide wananga with capital establishment grants in a similar manner to mainstream TEIs;
a wananga is a taonga that is inextricably linked with te reo Maori and matauranga Maori;
the Crown failed to adequately protect and support its Treaty of Waitangi partner through the EFTS system of funding, which did not adequately cater for the specific needs of Wananga; and
after 1990 the Crown provided capital injections to some TEIs but refused to do so for wananga, thereby prejudicing wananga.
The specific recommendations were as follows:
We recommend that a one-off payment of a capital sum be made to each of the Wananga sufficient to cover the following objectives:
(a) to compensate the claimants, as a matter of urgency, for the expenditure of capital and labour that they have invested in the land, buildings, plant, and equipment on the various sites that they occupy, and on which they operate their teaching programmes and provide accommodation and other necessary amenities for their staff and students;
(b) to make a payment to each of the claimants that will be sufficient to cover the real cost of bring the buildings, plant, and equipment of the various establishments up to a standard comparable to other TEIs and commensurate with the needs of their existing and anticipated rolls over the next three years; and
(c) to meet the proper costs and disbursements of the claimants incurred in the preparation and presentation of their claims.
What happened after the WAI 718 report?
On 5 September 2000 the Crown wrote to TWOA and accepted the Waitangi Tribunal’s findings and recommendations, and stated that Cabinet:
a. Accepts that the Crown has breached the principles of the Treaty in the circumstances and for the reasons set out in the Tribunal’s Wananga Capital Establishment Report;
b. Accepts in particular that the Crown has failed to adequately protect and support its TEI Wananga Treaty partners;
c. Accepts that this failure has compromised the financial viability of the three Wananga and their integrity as a significant Maori education initiative;
d. Acknowledges that redress should follow and is committed therefore to implementing the Tribunal’s recommendations in consultation with the Wananga, and thereby provide them with a stable capital base; and
e. Wishes to establish a partnership with the Wananga focusing in particular on how the capital provided to meet future needs will be used to develop institutional capacity and ability to sustain educational programmes of a consistently high standard.
The first Deed of Settlement was signed on 20 December 2000 and implemented recommendations (a) and (c) of the WAI 718 Report.
This claim concerns the second Deed of Settlement entered on 6 November 2001, which was designed to implement recommendation (b) of the WAI 718 Report.
Why is Harold Maniapoto and Dr Tui Adams on behalf of Aotearoa Institute bringing the Claim, and not the Wananga?
Aotearoa Institute brings this claim in the belief that that TWOA has effectively been prevented from bringing its own claim by the actions or omissions of the Hon Trevor Mallard. The Council of TWOA has been reduced to five, three of whom are appointed by the Minister, and therefore cannot take any resolution adverse to the Crown. Aotearoa Institute believes that no other person will bring a claim to challenge the actions
Aotearoa Institute represents the Maori who set up TWOA as a wananga in the first place and therefore has kaitiaki responsibilities over TWOA, notwithstanding that it has been constituted as a TEI under the Act. Given its unique and special links with TWOA, Aotearoa Institute believes it is best placed to bring this claim on behalf of the iwi and students who are affected by the Crown’s actions.
Who else supports the Claim and why?
Briefs of evidence in support of the Claim have been filed by:
Sir Graham Latimer, Chairman of the New Zealand Maori Council;
Meng Foon, Mayor of the City of Gisborne and Gisborne City Council;
Alan Livingston, Mayor of Waipa District;
Kitty Bennett, President of the Women’s Welfare League;
Natana Ihaka, Chief Executive Officer of Te Kohanga Reo National Trust;
Wally Penetito, Senior Lecturer in Maori Education at Victoria University of Wellington and Kaihautu (Director) of He Parekereke, the Victoria University Institute for Research and D evelopment in Mÿori and Pacific Education.
Letters of support have been received from numerous other individuals and organisations, but it is not possible for all of them to file briefs of evidence.
All of these people support the Claim because of the importance of the significant contribution TWOA makes to Maori education and the specific educational needs of the communities that its courses are tailored to serve. They believe that the Maori quota is contrary to the essential nature of a wananga and are worried that non-Maori will be denied the unique educational benefits that TWOA provides. They are also concerned that TWOA has been unfairly singled out for heavy-handed Government intervention in its affairs.