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Te Rōpū Whakamana i te Tiriti o Waitangi

by Mark Derby

The Waitangi Tribunal has had its detractors, but it stands as a unique attempt to redress colonial injustices. Research into Crown breaches of the Treaty of Waitangi has produced a rich historical record – and some reparation for past wrongs.


Forming the Waitangi Tribunal, 1970s

The Waitangi Tribunal’s main roles are to inquire into claims by Māori of Crown breaches of the Treaty of Waitangi between Māori and the Crown (represented by the New Zealand government), and make recommendations for settling them. The tribunal has no close parallels anywhere in the world.

Growing protest

The Waitangi Tribunal was set up at a time of growing protest over the current and historical treatment of Māori in society. From the late 1960s a ‘Māori renaissance’ movement called for greater legal and social equality with non-Māori, the revival of Māori culture (including the Māori language) and a halt to sales of remaining Māori land. At first many protesters denounced the Treaty of Waitangi as a ‘fraud’, but later they called on the Crown to honour its obligations under the treaty. This protest movement culminated in the 1975 Māori land march to Parliament.

For more than a century Māori had tried to resolve grievances with the Crown through petitions, court cases and by other legal means, but without significant success. By 1975 some Māori were turning to more extreme actions such as land occupations. Matiu Rata, the Labour government’s minister of Māori affairs, urged his cabinet colleagues to address Māori grievances by setting up a special tribunal. This would provide a legal process for investigating Māori claims of prejudice due to Crown breaches of the treaty and, it was hoped, help to resolve outstanding issues between Māori and Pākehā.

Tribunal set up

The government was advised that there was a lack of historical evidence to hear early Māori grievances dating back to the 1840 signing of the Treaty of Waitangi. Rata therefore aimed to compromise by giving a new Waitangi Tribunal the power to hear claims dating from 1900. His colleagues rejected that proposal and the Treaty of Waitangi Act 1975 set up the Waitangi Tribunal with the power to investigate claimed breaches of the treaty from 10 October 1975, the date the act was passed. The act also made the tribunal the only official body with the authority to determine the meaning and effect of the Treaty of Waitangi, taking into account both its English and Māori versions. The opposition National Party did not oppose the act and one of its MPs commented that ‘the tribunal’s responsibilities appear minimal’.1

Tame option

The Waitangi Tribunal began as a very small organisation with a modest role. Political scientist Andrew Sharp believes, ‘It was instituted in 1975 as a way of avoiding rather than confronting the continued Maori demand that the Treaty should be “ratified”’.2 Historian Bill Oliver adds that the tribunal ‘was not expected to hear many claims, to meet often or to cost much.’3

First tribunal claim

The original Waitangi Tribunal comprised the Chief Judge of the Māori Land Court (Kenneth Gillanders-Scott), an appointee of the minister of Māori affairs (Graham Latimer) and an appointee of the minister of justice (Lawrence Southwick QC). The first claim heard by the tribunal was lodged by Joe Hawke of Ngāti Whātua and concerned his rights to tribal land at Ōrākei, Auckland. In 1977 the tribunal rejected Hawke’s arguments.

For its first few years the Waitangi Tribunal made little impact on New Zealand life. It could only investigate present-day claims, yet most Māori land alienations and other grievances had occurred much earlier, mainly in the 19th century. Further, it could only make recommendations to the government on its findings and had no power to enforce them. Many Māori therefore regarded the tribunal as a token gesture to appease the protest movement, a way of avoiding Māori demands.

Footnotes
    • Quoted in Janine Hayward, ed., The Waitangi Tribunal: Te Rōpū Whakamana i te Tiriti o Waitangi. Wellington: Bridget Williams Books, 2004, p. 3. Back
    • Andrew Sharp, Justice and the Maori. 2nd ed. Auckland: Oxford University Press, 1997, p. 74. Back
    • W. H. Oliver, Claims to the Waitangi Tribunal. Wellington: Department of Justice, 1991, p. 10. Back

Developing the tribunal, 1980s

Bicultural process

In 1980 Judge Gillanders-Scott was replaced as chair of the tribunal by Eddie Taihakurei Durie (Rangitāne, Ngāti Kauwhata, Ngāti Raukawa) and in 1982 Lawrence Southwick was replaced by lawyer Paul Temm. By that time only seven claims had been investigated and when Temm was first asked to join the tribunal, he had never even heard of it. However, the tribunal then began to hear more claims under a bicultural process that aimed, according to Temm, to ‘marry informality with fairness’.1 Sittings were often held on the claimants’ marae and those who wished to give evidence in the Māori language could do so, with translation facilities provided so all present could understand.

Sea and life

In 1982, for the first time, the Waitangi Tribunal held a hearing on a marae belonging to a claimant tribe – the Te Āti Awa people of Taranaki. The tribe’s spokesperson, Aila Taylor, and other witnesses gave evidence that their tradition of gathering shellfish on offshore reefs was essential to providing hospitality and for tribal mana. The tribunal condemned the planners of a proposed industrial waste outfall for failing to consider the Māori cultural approach to water as a source of food.

Investigating historical claims

The 1984 Labour government significantly extended the authority of the Waitangi Tribunal, which was given retrospective power to investigate claims from the date of the signing of the Treaty of Waitangi in 1840. The number of tribunal members was increased from three to seven, with at least four being required to be of Māori ancestry. Another seven were appointed as deputy or alternate members. The tribunal gained research and administrative staff. However, it remained an advisory body, with no power to enforce its recommendations to the government.

Landmark claims

From 1983 a series of landmark cases brought the tribunal to the forefront of public and political life.

  • The Taranaki synthetic fuel plant, which was partly Crown-owned, planned to discharge untreated outfall into the sea. Local Te Āti Awa people had gathered shellfish from the affected area for generations and feared pollution of these traditional food sources. In 1983 the tribunal upheld their objections and successfully recommended channelling the outfall to a sewage treatment plant.
  • Māori traditional fishing rights were again upheld in 1984. Claimants objected to a proposal to discharge Rotorua’s treated sewage into an eel fishery in the Kaituna River. The scheme was stopped as a result of the tribunal’s findings. In a later outcome, all new legislation or proposed government policy had to conform to the principles of the Treaty of Waitangi.
  • In 1984 the tribunal issued its report on historical aspects of the claim over Ōrākei, in Auckland. This was the first claim it had heard, in 1977, when only contemporary issues could be considered. This time the tribunal recommended that Bastion Point should remain public open space, but be administered jointly by Ngāti Whātua and the Auckland City Council. It also recommended an award of $3 million to Ngāti Whātua – the first cash payment recommended as part of a treaty settlement. The government accepted all the tribunal’s findings.
  • In 1985 the tribunal reported on a claim on behalf of the people of the Manukau Harbour. It concerned pollution of seafood resources and loss of surrounding land from confiscations after the New Zealand wars and for public works. The tribunal’s findings helped bring about the Resource Management Act 1991, which makes statutory allowance for Māori environmental concerns. Two local tribes were named as consultant guardians of Manukau Harbour.
  • The tribunal’s 1986 report on te reo Māori – the Māori language – recommended that Māori should become an official language of New Zealand, and that a newly created body should supervise and foster its use and preservation. These recommendations resulted in the Māori Language Act 1987 (which made Māori an official language), the establishment of Te Taura Whiri i te Reo Māori (the Māori Language Commission), and increased Māori-language broadcasting.
  • The Ngāi Tahu treaty claim addressed land transactions between 1844 and 1864 that resulted in the tribe losing almost all South Island land. The tribunal released a report in 1991 recommending substantial compensation. In 1998 Ngāi Tahu agreed to compensation valued at $170 million, including the tribe’s ownership of pounamu, rights to sites of significance, a role in managing conservation estate resources and restoration of some original place names.
  • The claim by the tribes of the Muriwhenua region in the Far North included their traditional fishing rights. Before it was fully heard, the Ministry of Agriculture and Fisheries began issuing commercial fishing quotas. An urgent Waitangi Tribunal hearing found that this process breached treaty rights to fishing resources, and the quota allocation was halted. A subsequent 1992 tribunal report led to a settlement that gave iwi throughout New Zealand assets equivalent to 20% of total commercial fishing rights. This was the first tribunal settlement to affect all iwi.
Footnotes
    • Paul Temm, The Waitangi Tribunal – the conscience of the nation. Auckland: Random Century, 1990, p. 11. Back

Tribunal changes, 1988 onwards

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 further 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 critical 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.

Fiscal envelope

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 one billion dollars 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.

Claim backlog

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.

Casebook system

In 1996 the tribunal launched a new system for hearing claims. All the claims in a single district were researched together and their research was compiled into a casebook. The combined claims were then heard by one 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.

Rise up

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.

Direct negotiation

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 settlement of claims without first requiring a detailed Waitangi Tribunal report. Claimants could therefore choose either to have their claims heard in full by the Waitangi Tribunal or proceed more directly to settle with the Crown.

‘New Approach’

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 remaining issues 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.

Footnotes
    • Quoted in Janine Hayward, ed., The Waitangi Tribunal: Te Rōpū Whakamana i te Tiriti o Waitangi. Wellington: Bridget Williams Books, 2004, p. 13. Back

Researching Waitangi Tribunal claims

Who can submit a claim?

In 2011 any Māori (including any descendant of a Māori) could submit a claim to the Waitangi Tribunal. Claimants usually employed lawyers to help prepare their claims and present evidence, and often qualified for legal aid to meet those costs.

Historical and contemporary claims

Claims were classified by the tribunal as historical if they dealt with Crown policy or practice prior to 21 September 1992, or contemporary if after that date. Under the Treaty of Waitangi Amendment Act 2006, the tribunal stopped registering new historical claims from 2 September 2008.

Researching a claim

Once a claim was accepted by the Waitangi Tribunal, tribunal staff decided what research would be necessary to fully investigate it. That research was likely to include the traditional history of the claimants’ iwi, hapū or whānau; and surviving oral traditions about the impact of Crown actions and their prejudicial effects on claimants. Research was carried out by the tribunal itself and by the claimants. Claimants could apply to fund their research through the Crown Forestry Rental Trust (which collected fees from Crown-licensed forestry land which might be returned to claimants). The Crown also commissioned research into the claims.

The books

Research for Waitangi Tribunal claims was carried out by tribunal staff and by independent researchers. Much of this research was detailed and complex, and resulted in new discoveries or interpretations of New Zealand’s race-relations history. Sometimes the claims research was later published in book form. Books partly based on tribunal research include: Encircled lands: Te Urewera, 1820–1921 by Judith Binney, The beating heart: a political and socio-economic history of Te Arawa by Vincent O'Malley and David Armstrong, and This is my place: Hauraki contested 1769–1875 by Paul Monin.

Written and oral research

The resulting research covered a wide range of evidential material. It included technical reports written by professional historians. These were publicly available, often of great historical value and in some cases published in book form. However, the tribunal also welcomed research in the form of eyewitness accounts of historical events, visual demonstrations of places and their significance, oral traditions, ceremonial songs and orations. At times the Crown also delivered some of its research in oral form, for example through the testimony of former civil servants.

Research casebook

Since 1996 the full body of research prepared for a particular inquiry has been compiled into a casebook that formed the basis for the tribunal’s hearings into those claims. The casebooks from tribunal inquiries over many years amount to a comprehensive study of land loss or alienation and other forms of Pākehā–Māori interaction since 1840. It is likely that no comparable country has so fully researched its colonial history as has New Zealand through the tribunal inquiry process.


Hearing and reporting on claims

Tribunal members

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.

Tribunal’s roles

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.

District inquiries

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 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.

Tribunal reports

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.

Footnotes

External links and sources

More suggestions and sources

More links and websites


How to cite this page: Mark Derby, 'Waitangi Tribunal – Te Rōpū Whakamana ', Te Ara - the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/waitangi-tribunal-te-ropu-whakamana/print (accessed 20 June 2019)

Story by Mark Derby, published 20 Jun 2012