Treaty of Waitangi (State Enterprises) Act
The Waitangi Tribunal’s powers and resources were further extended in response to the State-owned Enterprises Act 1986. That act raised the possibility that Crown land subject to treaty claims could pass out of Crown ownership and therefore out of the jurisdiction of the tribunal. In 1987 the New Zealand Māori Council took a case to the Court of Appeal, which ruled that the government needed to consider the treaty when dealing with state-owned enterprises.
That finding resulted in the Treaty of Waitangi (State Enterprises) Act 1988. Under this act, the tribunal could direct the government to transfer certain state-owned-enterprise assets to iwi as part of claim settlements. The act increased the tribunal’s membership to 17, and provided it with a director and increased administrative support. The Waitangi Tribunal had become one of New Zealand’s most prominent public institutions.
Criticism of the tribunal
The high public profile of the tribunal and its work generated a backlash. Some people felt that historic grievances were best forgotten. The tribunal’s work was said to divert attention from the real problems of Māori. Opposition leader Robert Muldoon suggested that the tribunal should be abolished and his party’s spokesperson on Māori affairs, Winston Peters, warned of race riots in the future. In the late 1980s the tribunal’s chair, Judge Eddie Durie, received so many abusive telephone calls that he made his number confidential.
Many critics of the tribunal were especially concerned at the possible cost of settling treaty claims. Some thought the eventual cost of these settlements might cripple the economy. In 1994 the government introduced a new policy on claims settlement known as the ‘fiscal envelope’. This proposed that each iwi’s claims would be settled without the transfer of state-owned natural resources or the conservation estate, and set a maximum of $1 billion to cover all past and future historical treaty claims. The fiscal envelope was strongly opposed by Māori nationally on the grounds of inadequate consultation and denial of natural justice, and it was dropped.
By 1993 a backlog of several hundred claims waited to be heard. Even supporters of the Waitangi Tribunal acknowledged that it was falling seriously behind in its work. With the aim of streamlining research into these claims, the tribunal undertook the Rangahaua Whānui (researching broadly) project. This was a series of general research reports on the main historical treaty grievances in each district, and on nationally important issues. However, the project did not significantly reduce the tribunal’s workload. In 1995 its first director, Buddy Mikaere, resigned, expressing frustration at the lack of resources available to him and his staff.
In 1996 the tribunal launched a new system for hearing claims. All the claims in a single district were researched together and the research was compiled in a casebook. The combined claims were then heard by a tribunal panel which released its findings in a single large report. The first tribunal inquiry under this system was for the Mōhaka ki Ahuriri district in Hawke’s Bay.
As a law student in the 1980s Joe Williams was singer and lead guitarist for the reggae band Aotearoa. The band had a hit in 1985 with the single ‘Maranga ake ai’, a call to Māori youth to rise up and take pride in their identity. Judge Williams continued to perform occasionally when chair of the Waitangi Tribunal, and later a High Court judge.
To advance the negotiation of treaty settlements, in 1989 the government set up a policy unit within the Department of Justice to examine treaty settlement issues. In 1995 this became the Office of Treaty Settlements (OTS), which had the power to negotiate the settlement of claims without first requiring a detailed Waitangi Tribunal report. Claimants could choose either to have their claims heard in full by the Waitangi Tribunal or proceed directly to settle with the Crown.
In 2000, the 25th anniversary of the Waitangi Tribunal, its new chair, Judge Joe Williams (Ngāti Pūkenga, Te Arawa), introduced a ‘New Approach’ to further reduce the time taken to hear claims. By clarifying beforehand any claimants’ issues that were accepted by the Crown, hearings could focus on matters on which the parties disagreed. The primary purpose of the tribunal’s work was ‘to get the claimant and the Crown to settle’, said Williams.1 The first New Approach inquiry was in the Tūranga (Gisborne) district. The report of this inquiry was released in 2004.