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Dr Muriel Newman

The Future of the Waitangi Tribunal

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WaitangiTribunalThe Waitangi Tribunal was established by the Kirk Labour Government in 1975 through the Treaty of Waitangi Act as a permanent commission of inquiry into alleged breaches of the Treaty of Waitangi by the Crown. In 1985, as a result of intense lobbying by the iwi elite, the Lange Labour Government extended its jurisdiction to cover historic claims going back to 1840. The Clark Labour Government introduced a September 2008 deadline for the lodgement of all historic claims, and with the settlement of those claims now coming to an end, surely it is time to seriously consider winding up the Tribunal.

Associate Professor Elizabeth Rata of Auckland University has long observed the power held by the Waitangi Tribunal and the influence it has had on our constitutional arrangements. As she explains in Marching through the institutions, once the iwi elite ‘captured’ the Tribunal, they were able to significantly influence public affairs in New Zealand: “E. T. Durie’s long tenure as chair of the Waitangi Tribunal is a good example of an influential brokerage position within a pivotal government institution. His strategic plan for the cultural change required for a constitutional ‘arrangement’ incorporating ‘the Treaty as a basic tenet’ demonstrates the political aspirations of a broker in an institutional position with real driving power. The Tribunal played a major role in shifting the interpretation of the Treaty from its role as a grievance settlement mechanism to its role in justifying political, even constitutional, partnership”.

Not only has the Tribunal played a major role in the manipulation of the agenda to legitimise the aspirations of the iwi elite, but it has also played an central part in the re-writing of New Zealand history. As Professor Rata explains, “Their control of the main brokerage site, the Waitangi Tribunal, was pivotal in establishing, then naturalising, the concepts of treaty partnership and principles. Mason Durie has referred to the Tribunal’s role in ‘rewriting New Zealand’s history’. The Tribunal intentionally and actively undertook this task. Oliver describes how E. T. Durie, chair of the Tribunal from 1981 to 2000 ‘made clear his belief that the Tribunal should help to rewrite New Zealand history from a Maori point of view’”.

The re-writing of history by the Waitangi Tribunal is still occurring today. It has a sinister side in that young school children are regularly indoctrinated with what is effectively anti-colonisation Tribunal propaganda. Meanwhile, governments continue to apologise for fabricated historical events that did not take place.

The former Waitangi Tribunal Chairman Justice E.T. Durie even admitted that history was being distorted by the Tribunal in a paper Ethics and Values that he wrote in 1999. He attempted to justify the Tribunal’s position in allowing such distortions of history: “Tribunal members may describe the research required or may refer to particular issues and source materials that they would like to see covered. However the members must observe protocols not to influence a researcher’s conclusions.”

He then raised serious concerns about the reliability of some of the research evidence presented to the Waitangi Tribunal.  He said that some claimant groups asked their researchers to change findings that they thought would be unhelpful to their cause, while other researchers were told they would not be paid unless they changed their conclusions. Some claimants required biased claims to be presented, by leaving out evidence that should have been included. While other claimant groups restricted who their researchers could and couldn’t consult with. The fact that most of the research evidence presented by claimants was not generally available for public scrutiny served to further undermine confidence in the Waitangi Tribunal process.

This week’s NZCPR Guest Commentator is Independent Constitutional Review Panel member and NZCPR Research Associate Mike Butler, who has long been investigating the Treaty claims process. In his article Seven reasons why the Waitangi Tribunal must go, Mike notes that that by the early 1990s the Waitangi Tribunal’s appointed members had gradually became advocates for Maori rather than independent assessors of the claims put before them:

“When ‘Maoridom’, in the 1980s, took claims related to State-owned enterprise land, and fisheries quota to the Waitangi Tribunal, they stumbled upon a strategy to twist the treaty to grab money and power. Tribal opportunists will take a claim to the Waitangi Tribunal in the knowledge that they will get an extensive document that will report in their favour. Next step is the High Court where they will either succeed or go to the Appeal Court, and if unsuccessful there, on to the Supreme Court.

“While the claim is going through the different legal levels, claimants will repeat their outrageous claim until it becomes embedded in the public consciousness as a fact. The claim does not necessarily have to succeed because at any point a spineless government could cave in and grant a concession.

“Once the Waitangi Tribunal was perceived as an advocacy body rather than a commission of inquiry, such a strategy appeared infallible. This strategy has been used successfully in relation to state-owned enterprises and fisheries, and is currently in use for water rights and the electromagnetic spectrum.”

If the Waitangi Tribunal is disbanded, any remaining claims could be dealt with either by direct negotiation with the Crown – which more and more claimants are doing anyway – or by recourse to the courts. While activists would argue that it is their ‘right’ to have the Tribunal investigate contemporary claims, the reality is that not only are there plenty of other avenues by which citizens can challenge the actions of their government, but there is no justification for giving any group of citizens special rights to better justice than any other group of New Zealanders. 

The Waitangi Tribunal consists of a chairman and up to 20 members who are appointed for a three year term by the Governor-General – on the recommendation of the Minister of Maori Affairs. The chairman must be either a judge or a retired judge of the High Court, or the chief judge of the Maori Land Court.

The present chairman of the Waitangi Tribunal is Chief Judge Wilson Isaac, the chief judge of the Maori Land Court, who is Ngati Porou, Tuhoe, and Ngati Kahungunu. The deputy chairman is Judge Stephanie Milroy, who is also a member of the Maori Land Court. Listed on the Waitangi Tribunal website are 21 more Tribunal members: Dr Robyn Anderson, a former iwi researcher; John Baird, a company director; Dr Angela Ballara, an authority on Maori customary history; Tim Castle, a barrister and Maori advocate; Ronald Crosby, a resource management lawyer; Dr Aroha Harris, a lecturer and iwi researcher; Prof Richard Hill, director of Victoria University’s Treaty of Waitangi Research Unit; Hon Sir Douglas Kidd, a former Minister of Maori Affairs; Prof Sir Hirini Moko Mead, a tribal negotiator and former head of Maori Studies at Victoria University; Joanne Morris, the Broadcasting Standards Authority chairman; Basil Morrison, former president of Local Government New Zealand; Kihi Ngatai, a kaumatua adviser; Dr Ann Parsonson, a University of Waikato Maori Studies associate and iwi researcher; Dr Grant Phillipson, a former Tribunal researcher; Prof Sir Tamati Reedy, a former Department of Maori Affairs chief executive; Tania Simpson, a Maori consulting company chief executive; Dr Monty Soutar, a Maori researcher; Prof Pou Temara, a University of Waikato professor of Maori and Tribunal claims mediator; Keita Walker, a Maori language advisor; Prof Ranginui Walker, a Maori academic; and Kaa Williams, a Maori language expert.

The Waitangi Tribunal has 60 staff and this year will cost $11 million to run. The Crown will spend over $2 million preparing documentation and evidence on the claims that will come before the Tribunal.

The Office of Treaty Settlements, which has 130 staff and manages the claims process – taking care of the almost $400 million of surplus Crown property that has been placed in the ‘landbank’ for settlement purposes – spent almost $30 million in the nine months to 31 March 2013.

This year’s Budget contains a multi-year appropriation of $1.4 billion for the next five years to cover the redress of cash and assets needed for the settlement of claims. In addition, Vote Treaty Negotiations has been allocated $60 million for the management of the claims process of which $8 million is earmarked for claimant funding. Claimant funding for the Treaty settlement process is a significant cost to taxpayers. With four main sources of claimant funding – legal aid, the Office of Treaty Settlements, the Crown Forestry Rental Trust, and direct appropriations from the Crown – there are serious concerns on the record about the risk of claimants ‘double-dipping’.

A 2011 report by the Legal Services Agency highlighted concerns about the levels of Treaty claims legal aid funding: “The total cost of legal aid for Waitangi Tribunal matters and associated settlement negotiations has increased markedly, from $11.7 million in 2008/09 to $16.4 million in 2009/10. The average cost of legal aid for Waitangi Tribunal cases finalised in 2009/10 was $108,492. During the same period the average cost of legal aid for finalised criminal cases was $1,343; for family court cases it was $1,876 and; for other civil cases it was $3,474. As this shows, Waitangi Tribunal cases are high cost, relative to other types of cases. There are currently more than 800 active Waitangi Tribunal legal aid cases.”1

An expensive Waitangi Tribunal claim that hit the news recently was the Maori Council’s claim for the ownership of fresh water. Lodged in February 2012, by October the cost had blown out to over $1.2 million – $191,000 for the cost of the Waitangi Tribunal, $323,000 in claimants’ legal aid, $671,000 in costs for Crown lawyers, and a further $55,000 for the cost of Crown consultation.2

Another avenue of claimant funding is the Crown Forestry Rental Trust, an entity established by the government in 1989 to collect and invest the rental fees from Crown forests awaiting settlement. The interest earned from investments is available to help claimants prepare their claims to the Waitangi Tribunal and negotiate with the Crown. This year the Trust expects to disburse some $30 million in claimant funding.

If you are thinking that the country would be better off without the Waitangi Tribunal grievance industry, then the government’s constitutional review gives you the opportunity to say so. While the terms of reference of the review specify that ‘Crown-Maori relationship matters’ will be investigated, the Waitangi Tribunal is not mentioned. However, the submission page explains, “You can make a submission on other aspects of New Zealand’s constitution. If there is sufficient interest in a constitutional topic outside the terms of reference, the Panel may report on it.” If you encourage others to have their say HERE on the future of the Waitangi Tribunal, then its abolition could become part of the future political agenda.

One final matter – as a condition of the Maori Party’s 2008 coalition deal with National, Crown ownership of the foreshore and seabed was repealed in favour of private tribal ownership and control under the Marine and Coastal Area Act. The first tribal claim is now underway, and the Office of Treaty Settlements is seeking feedback from East Coast recreational users, commercial operators and the general public, on whether Ngati Porou can successfully argue that they have “occupied” the coastal area continuously and exclusively since 1840.

Ngati Porou has already received many millions of dollars in taxpayer funding for the coast as a result of an agreement they entered into with the government under the old Foreshore and Seabed Law. The ‘spoils’ are now much greater, of course – under the new law ownership rights and private title are on offer, instead of the management rights available under the old law. Fishermen, boaties, surfers, and all recreational and commercial users of the coast should take an active interest in this claim, as it will no doubt set a precedent for other claims for coastal areas around New Zealand that will be lodged ahead of the 1 April 2017 deadline. For more information on the Ngati Porou claim including details of consultation meetings, click HERE.