Ka Mua Ka Muri

By Maia Berryman-Kamp (Te Arawa, Mataatua)

When talking about Te Tiriti, one figure looms elusive - the Waitangi Tribunal. Featuring in the hearts and minds of Aotearoa’s more… controversial political figures, the Tribunal has been referred to variously as producers of a “socialist manifesto”, “a jacked-up, grievance mechanism funded by the taxpayer to supply ammo to the gravy-trainers for an ongoing, if not neverending, list of woe”, and “out of control”. As the Tribunal hits its 50th Anniversary in October of this year, it’s probably a good idea to do a refresh on its history, functions and processes. 

The Tribunal currently hears ~5 types of inquiries: District (all historic claims in a land area e.g. North Eastern Bay of Plenty), Kaupapa (broader contemporary issues e.g. Mana Wāhine), Urgencies (if significant prejudice is about to occur e.g. Te Aka Whai Ora), Priority (a standard inquiry which is moved up the list of importance e.g. Climate Change) and Remedies (claim made before another claim has settled e.g. Muriwhenua).

Every inquiry into a claim has between 3-7 members hearing it, of which at least one must be Māori. These are the people who decide the outcome of a claim. Members are appointed by the Governor-General and on recommendation of the Minister of Māori Affairs. Even if a member’s warrant to serve expires, they will serve on their appointed panels until the inquiry finishes.

The process for a claim is as follows:

Claimants (must be Māori) submit a claim that says they have been prejudicially affected by 

Crown action → 

Claim is registered as an inquiry: if relevant, it is grouped with similar claims  → 

Research is undertaken by the Waitangi Tribunal’s Unit’s commissioned researchers, claimants, and Crown  → 

Hearings are held, and authors of research are cross examined  → 

The Tribunal members who oversaw the hearing release their report and recommendations. The inquiry is closed and settlement is processed by the Crown.

Tribunal findings are not legally enforceable, the Tribunal can’t veto Government decisions, and the Tribunal doesn’t handle settlements. The sole power of the Tribunal is to provide recommendations on claims.

The Waitangi Tribunal exists in two different places: the first is the members themselves, who are independent from the Government aside from appointment. The second is the Waitangi Tribunal Unit of the Ministry of Justice, who serve to support the Tribunal’s processes. The members direct the Unit to facilitate inquiries and research on relevant matters - neither are representatives of Crown or Māori claimants.

Timeline

1975

The Tribunal was established under the Labour Government, led by Matiu Rata (Minister of Māori Affairs), following the 1975 Land March led by Dame Whina Cooper. Set up to cover contemporary claims and ensure future legislation is consistent with Te Tiriti.

1977

First tribunal hearing at Ōrākei Marae for Wai 001, JP Hawke and others of Ngāti Whatua concerning Fisheries. Tribunal members consisted of Judge Kenneth Gillanders-Scott (Chief Judge of the Māori Land Court), Sir Graham Latimer (Appointee of Māori Affairs), and Lawrence Southwick (Queen's Counsel)

1980

Tribunal had been operational for 5 years, had only investigated 7 claims. Tribunal membership changed reflecting a change in the Chief Judge of the Māori Land Court. Gillanders-Scott replaced with Judge Eddie Durie, and the Chief Judge becomes the de facto Tribunal Chairperson

1983

Wai 006, the Motunui-Waitara claim, and Wai 004, the Kaituna River claim, both heard  regarding the discharging of untreated waste into significant waterways. Both claims were accepted, and both schemes re-done as a result. Recommended that legislation related to the Water and Soil Conservation Act 1967 be amended to “properly take into account Māori spiritual and cultural values”, the first recommendation of legislation and policy needing to consider Māori customary law. Tribunal was extended from 3 to 7 members, of which 4 had to whakapapa Māori.

1985

Tribunal amended under the Treaty of Waitangi Amendment Act 1985.

Jurisdiction split into two categories – contemporary claims which covered breaches of te Tiriti occuring in the moment, and historical claims which covered historical breaches.

1986

First instance of the Tribunal shifting from hearing individual iwi, hapū, and whānau claims into a Kaupapa claim – issues facing Māori more broadly. Wai 011, the Te Reo Māori claim, lodged by Huirangi Waikerepuru and Ngā Kaiwhakapumau i Te Reo (The Wellington Board of Māori Language). The Tribunal recommendations led to the Māori Language Act 1987 (which made Māori an official language), and the establishment of Te Taura Whiri i te Reo Māori (the Māori Language Commission).

1987

Wai 001 is re-submitted as Wai 009, and was accepted by the Tribunal with its new historical jurisdiction in 1987. The first historic claim brought to the Tribunal, and the first historic claim heard (in 1985).

The New Zealand Māori Council asked the Court of Appeal to identify if the transfer of land to state-owned enterprises was a breach of Te Tiriti principles, leading to the first time that ‘principles’ of Te Tiriti were needed to be defined. This led to the 1988 legislation where the Tribunal could direct the government to transfer assets to iwi (under a Post-Settlement Governance Entity). The Act also boosted 

the Tribunal membership from 7 to 17.

1992

Tribunal heard Fisheries claims under Wai 307, regarding Māori fisheries rights, commercial fishing quotas, and the development of a Māori fisheries commission. The claim was accepted, leading to the purchase of 50% of Sealord fisheries for Māori and guarantee of protection of Māori fishing interests. Te Ohu Kaimoana, in charge of enacting the settlement, worked for 12 years to develop a method to allocate fisheries settlement assets.

1995

The option is given for claimants to bypass an investigation and report by the Tribunal, instead going straight to the Office of Treaty Settlements for a direct settlement without a hearing in full.

1996

Number of claims risen to 480, reflecting the interest of Māori in historical rather than contemporary claims. The majority of these were unheard, as moving through each case individually took years. Casebooks are first introduced, leading to District Inquiries where all claims within a rohe are filed and heard together. The first District Inquiry was Wai 201, 20 claims in the Mōhaka ki Ahuriri district in Hawke’s Bay.

2000

By the 25th anniversary, the Tribunal had released 70 reports on 70 different inquiries, from contemporary to historic to Kaupapa. Processes for casebook and historical claims were refined to speed up processes, focusing on bigger groups of claims and more overview issues.

2011

Wai 262 was first filed in 1991 as urgent, but took 20 years to settle. Wai 262, as known as Ko Aotearoa Tēnei, the Flora and Fauna Claim, or the Intellectual Property claim, is “one of the most significant and far-reaching claims considered by the Waitangi Tribunal”. The claim covered Māori culture and heritage, taonga species, intellectual property, and health. Filed by 5 Māori from different iwi and supported legally by Tā Moana Jackson, the claim included over 20 Government agencies and departments, and set the parameters for how much Māori could push through the Tribunal. 

2014

Te Paparahi o te Raki (Wai 1040), aka the Northland claim, is an ongoing claim regarding Māori and Crown understandings of both Te Tiriti and He Whakaputanga o te Rangatira, and encompasses ~415 claims in the region. The Stage 1 report, filed in 2014, found that Ngāpuhi chiefs did not cede their sovereignty when signing Te Tiriti.

2015

As the Tribunal began to finish off the backlog of historical claims, amalgamated into District Inquiries, focus shifted to generic and thematic issues - Kaupapa Inquiries.  In April 2015, Chief Judge Isaac filed a memorandum outlining the Kaupapa Inquiry programme. 11 inquiries are being investigated.

2023

First wāhine Māori appointed as Chairperson and Chief Judge – Caren Fox.

Across 2023-2025, the Tribunal heard a series of urgent claims in response to the National, NZ First, and ACT coalition’s policies – including claims on te reo Māori in the public sector, Māori health, Oranga Tamariki, smoking, Māori wards, regulatory standards, and foreshore and seabed.

2024

The Tribunal released a report in response to urgent claim Wai 3300 on the Treaty Principles Bill, finding that “if this bill were to be enacted, it would be the worst, most comprehensive breach of the Treaty … in modern times”.