In 2011 the Waitangi Tribunal comprised its chair, Judge Wilson Isaac (Ngāti Porou, Tūhoe, Ngāti Kahungunu), its deputy chair Judge Stephanie Milroy (Tūhoe, Ngāti Whakaue) and 20 other members. These were appointed by the governor-general on the recommendation of the minister of Māori affairs, in consultation with the minister of justice. Their professions and backgrounds included law, history, anthropology, business and community development.
The tribunal’s roles included inquiring into and making recommendations on Treaty of Waitangi claims, reporting on proposed legislation and making recommendations or determinations on Crown forest land, railways land, state-owned-enterprise land and land transferred to educational institutions.
Types of tribunal inquiry
Once claims were accepted by the tribunal, they were generally grouped into either district, generic or urgent categories for inquiry. District inquiry claims relate to a particular land block or locality. In 2011 these included the Te Paparahi o te Raki (Northland) and Te Rohe Pōtae (King Country) inquiries. Generic inquiries are not specific to a particular inquiry district and often deal with matters of national significance. In 2011 these included the Flora, Fauna and Intellectual Property (Wai 262) inquiry, a claim to rights in respect of mātauranga Māori (Māori knowledge) and indigenous flora and fauna. Urgent inquiries are only held under exceptional circumstances, when claimants can demonstrate significant and irreversible prejudice as a result of current or pending Crown actions or policies. Each inquiry is allocated a panel of from three to seven tribunal members so that several inquiries can take place at once.
A district inquiry included a series of hearings, usually held on a marae or other agreed venue within that district. Each hearing followed the protocol of the local people and was open to the public. After a formal opening ceremony, claimants presented their evidence, both in writing and orally, and in either Māori or English. There were many dramatic, moving and historically significant moments as local kaumātua gave oral evidence. The tribunal panel often visited sites of significance to the claimants such as pā sites or wāhi tapu (places of spiritual significance to Māori). The Crown then presented its evidence in response. All hearings were recorded by the tribunal on audiotape.
After hearing all the evidence on a claim from both parties, the tribunal panel was required to decide whether, on the balance of probabilities, that claim was well founded. If so, it often produced a written report summarising its findings and recommending ways the Crown could compensate the claimants, remove the prejudice or prevent similar prejudice happening in the future. This report could then become the basis for negotiations between a claimant group and the Crown, although the Crown did not necessarily accept all of the tribunal's findings.
By March 2009 the tribunal had produced over 100 reports ranging from one-page statements to multi-volume reports on district and regional inquiries involving many separate claims. These were supplied to the minister of justice and the claimants, and published in hard copy and on the Waitangi Tribunal website.
A certain grandeur
In 1984 international law expert Professor Quentin Quentin-Baxter wrote that New Zealand’s record of race relations, including the work of the Waitangi Tribunal, gave it an important and unique place in the world. ‘If New Zealand has a destiny as a separate nation … it will be principally because these islands were a meeting-place of two great races, and because – even in the worst times – their dealings with each other never lacked a certain grandeur. It is of course a flawed record, but the world has no better record and can ill afford to lose this one.’1
Impact of the tribunal
The Waitangi Tribunal has helped to put the treaty at the centre of debates about New Zealand’s past and also about its future. It has aimed to investigate and report on the Crown’s failures to live up to its promises to Māori since 1840, and has also attempted to map out a path for the future of both peoples. The tribunal has said that if Māori can be appropriately acknowledged and compensated for past grievances, New Zealand need not repeat the mistakes in its history. Instead it can establish more just and harmonious relationships based on the concept of partnership, which the tribunal has described as a fundamental principle of the treaty.