Frequently Asked Questions
When was the Waitangi Tribunal established?
The Waitangi Tribunal was established as a permanent commission of inquiry under the Treaty of Waitangi Act 1975.
Why was the Tribunal established?
In November 1974, the Honourable Matiu Rata introduced the Treaty of Waitangi Bill. He said its purpose was to provide for the observation and confirmation of the principles of the Treaty of Waitangi and to determine claims about certain matters that were inconsistent with those principles:
While the Treaty can be regarded as the possession by the whole of our nation of an instrument of mutuality that has endured for the past 134 years, to the Māori people it is a charter that should protect their rights. The Bill is primarily aimed at satisfying honour. It will also give physical and lawful sustenance to the long-held view that the spirit of the Treaty more than warrants our country's continued support.
Is the Tribunal a court of law?
The Tribunal is not a court of law, it is a permanent commission of inquiry. This means it can order witnesses to come before it; order material or documents to be produced before it; and actively search out material and facts to help it decide on a claim (courts are limited in their ability to do this).
What does the Waitangi Tribunal actually do?
The Tribunal can examine any claim by a Māori or group of Māori who may have been prejudiced by laws and regulations or by acts, omissions, policies, or practices of the Crown since 1840 that are inconsistent with the principles of the Treaty of Waitangi.
The Tribunal makes findings on whether a claim is well founded, and outlines if and how the principles of the Treaty have been breached. The Tribunal aims to add value to the settlement of claims by conducting a robust inquiry, identifying all parties and their representatives in a public and transparent process that clarifies key issues, resolves points of contention where possible, and delivers parties ready to negotiate a settlement. It publishes its findings in an official report to the Minister of Māori Affairs, and may recommend to the Government what could be done to compensate the claimant (or claimants) or to remove the harm or prejudice that they have suffered. These recommendations must be practical.
From 1975 to 1985, the Tribunal could inquire only into grievances that had happened since 1975, but in 1985 the law was changed to allow the Tribunal to hear claims dating back to 1840, when the Treaty was signed. In 2006, the Treaty of Waitangi Act 1975 was again amended to set a closing date of 1 September 2008 for the submission of new historical claims or historical amendments to contemporary claims.
Who makes up the Tribunal?
The Tribunal may have up to 20 members, including a chairperson and a deputy chairperson. The membership of the Tribunal reflects the partnership inherent in the Treaty of Waitangi through an equal representation of Māori and non-Māori. Appointments to the Tribunal are made by the Governor-General on the recommendation of the Minister of Māori Affairs, who will have consulted with the Minister of Justice. As at April 2009, the Tribunal has 19 members.
Under the Treaty of Waitangi Act 1975, the Ministry of Justice is charged with providing support and other services necessary to enable the Waitangi Tribunal to carry out its work. It does this through the Waitangi Tribunal Unit. While the Tribunal itself is part of the judiciary, and therefore independent of the Crown, the Waitangi Tribunal Unit staff are employees of the Ministry of Justice.
The Waitangi Tribunal Unit carries out many functions for the Tribunal, ranging from providing financial and administrative support services to registering claims, conducting and analysing research, liaising with claimants, running hearings, and assisting in the writing and production of reports.
How many people work at the Waitangi Tribunal Unit?
There are approximately 60 full-time staff working at the Tribunal.
What are claims about?
Claims may be made only against legislation or the Crown, not against private individuals. They can be historical (for instance, where people claim compensation for confiscated land) or contemporary (for instance, where claimants say a current Government policy, action, or inaction is in breach of Treaty principles). The Tribunal has the right to refuse to inquire into a claim if it considers that claim to be too trivial or if there is a more appropriate means by which the grievance can be resolved.
I would like to file a claim, how do I do that?
To make a claim to the Tribunal, the basis of the claim must be against the Crown and the claimant must be Māori (claims must be brought by an individual or individuals, but they in turn may claim on behalf of a group). Claims against other Māori or individual non-Māori cannot be inquired into by the Tribunal, and by a 2006 amendment to the Treaty of Waitangi Act 1975, the Tribunal is no longer permitted to register new historical claims or historical amendments to contemporary claims.
Why can't non-Māori make claims to the Tribunal?
Treaty claims must be based on the relationship established in the Treaty of Waitangi between the Treaty partners – the Crown (the Government) and Māori.
I filed a claim, how do I find out more information about it?
The claims administration section provides all the necessary logistical and administrative support to enable the smooth functioning of judicial conferences, hearings, and Tribunal member meetings. Claims coordinators assist claimants and all participants in a Tribunal inquiry to engage effectively with official Tribunal events. They also maintain and distribute all documents filed on the Tribunal’s record of inquiry and provide copies of requested documents to members of the public.
Does the Tribunal settle claims?
No, the Tribunal does not settle claims. It can only make recommendations to the Government, though in some specific circumstances it can make binding recommendations. Once the Tribunal has released its report about a claim or inquiry or has made a binding recommendation, it is not involved in the settlement process, and claimants agree not to pursue matters through the Tribunal while they are engaged in the negotiation process.
Are claims settled by negotiation with the Government?
Yes. The Office of Treaty Settlements manages the negotiation of Treaty settlements for the Government, and all matters related to negotiations should be addressed to that office.
How are claims dealt with?
When a claim is received, it is checked against section 6 of the Treaty of Waitangi Act 1975. If it complies with the Act, it is assigned a number – known as a Wai number – for identification purposes. It is then grouped for inquiry with claims relating to a similar area or issue, and will be heard at the same time as these other claims. Sometimes the Tribunal will set a cut-off date for claims to be registered as part of a district inquiry.
Once the research for all the claims grouped for inquiry has been completed and compiled into volumes, collectively known as a 'casebook', hearings can be scheduled. The hearing phase can take up to three years, and when the hearings are complete, the Tribunal produces a report. This report is generally used by the claimants as the basis of their settlement negotiations with the Crown.
Does the Tribunal ever refuse to inquire into a claim?
Section 7 of the Treaty of Waitangi Act 1975 gives the Tribunal discretion to not inquire into a claim if it is perceived the subject matter of the claim is trivial, vexatious, not made in good faith, or frivolous.
Is there any way for the Tribunal to hear and report on claims faster?
The Tribunal has recognised the importance of expeditious progress towards settlement for both the claimants and Crown. The pace of inquiry completion is now more rapid under the Tribunal’s 'new approach' inquiry process. The initial group of district inquiries, undertaken in the past, were around eight years from completion of the research casebook to release of Tribunal report, the Gisborne inquiry took half that time.
The central North Island regional inquiry was the first of another form of inquiry process known as the 'modular new approach', enabling the Tribunal to hear a wider number of claimants on generic issues that affect them and provide a fast-track process to resolve grievances. Consequently, large groups of claimants are now able to more rapidly emerge from Tribunal inquiries and are better prepared for negotiating the settlement of their claims.
How many claims are there, and does one claim equal one settlement?
As at 11 June 2009, 2034 claims had been registered with the Tribunal. They vary in size from claims on specific grievances by individual Māori up to comprehensive claims by one or more large iwi/hapu groupings.
It is important to note that the number of claims lodged with the Tribunal bears no relationship to the number of historical settlements that will be required to settle all claims or to the progress that is been made toward settling all historical claims.
Can the Tribunal make recommendations involving private land?
The Tribunal can hear claims concerning private land, but it cannot recommend that the land be taken away from the current owners under section 6(4A) of the Treaty of Waitangi Act 1975. The only exception to this is former Crown owned land that has been passed to State-owned enterprises and then sold to private owners. In these cases, the land is sold with a notation, or 'memorial', on the title, so that buyers understand that it may be the subject of a Tribunal recommendation.
If the land is memorialised, the Tribunal may recommend that it be returned to Māori ownership or that the Crown acquire it. Memorialised lands are lands owned, or formerly owned, by a State-owned enterprise or a tertiary institution, or former New Zealand Railways lands, that have a memorial (or notation) on their certificate of title advising that the Waitangi Tribunal may recommend that the land be returned to Māori ownership.
Does the Government have to do what the Tribunal recommends?
In most cases, the Government does not have to do what the Tribunal recommends (that is, the Tribunal's recommendations are not binding on the Government), but the Government often implements the recommendations to a certain degree.
In its 33-year history, the Tribunal has used its binding powers only once - in 1998 in relation to the Turangi township claim. A 90-day binding order was made, but the Crown responded before the expiry of that order, and was able to reach an agreement with the claimants. In some limited instances, the Tribunal has the power to make 'binding recommendations' for the return of certain lands to Māori ownership. The lands in question are: Crown forest land that is subject to a Crown forestry licence; and 'memorialised lands', which are lands owned, or formerly owned, by a State-owned enterprise or a tertiary institution, or former New Zealand Railways lands, that have a memorial (or notation) on their certificate of title advising that the Waitangi Tribunal may recommend that the land be returned to Māori ownership.
Where the Tribunal makes a binding recommendation, it is an interim recommendation for the first 90 days. This period is intended to allow the Crown and the claimants to reach a negotiated settlement in place of, or incorporating aspects of, the Tribunal's binding recommendation. If a settlement is reached in the 90-day period, the Tribunal amends its recommendation to give effect to the terms of the settlement. If no settlement is reached in that period, the interim binding recommendation takes full effect and must be implemented by the Crown. If lands were to be returned to Māori ownership under a binding recommendation, the landowner would receive compensation under the Public Works Act.
Where are Tribunal hearings held?
The Tribunal can hold hearings anywhere. Often they are on marae, but they may also be in public halls, schools, courtrooms, or conference rooms. Because it is a commission of inquiry, the Tribunal has the power to adapt its procedures as it thinks fit.
What happens at a hearing, what sort of evidence is presented, and can anyone attend?
Tribunal hearings are open to the public, so anyone may attend. Public notices are published in local and regional newspapers notifying the public on all Tribunal hearings.
Two types of evidence are usually presented at Tribunal hearings and it is heard in two stages:
- Technical evidence is contributed from researchers who have rigorously researched archival materials and presented a summary report of their findings. This evidence is usually cross-examined before the second stage of evidence.
- Tangata whenua (or customary) evidence is evidence from the claimants within the inquiry area or region. This evidence may be presented by a legal representative or a claimant spokesperson, and it may include graphical materials (such as maps) and written and oral submissions (which may include waiata or kōrero).
Is the Tribunal subject to the Official Information Act 1982?
The Tribunal is not subject to the Official Information Act 1982 when acting in its judicial capacity. However, members of the public may generally access the register of claims and documents entered on the record of inquiry of each claim. In some instances documents may be subject to Tribunal directions limiting their access and use, this restriction is usually placed upon sensitive information (such as whakapapa or details about wāhi tapu). Applications for restricting access to this evidence is not granted automatically and must satisfy the Tribunal there are good grounds for evidential restriction. The Tribunal must comply with the provisions of the Privacy Act 1993 and other relevant statutes, though as a commission of inquiry, it is exempt from the Copyright Act 1994 when it comes to its proceedings and the issuing of its reports.
When will it all end?
Unless it can be guaranteed that future governments will not breach the Treaty in any way, there will always be a need for a forum to address contemporary Treaty issues. However, with its current resources, the Tribunal expects to have prepared casebooks for all historical and generic claims within the next 5 years.
How can I learn more about the Treaty of Waitangi?
In early 2003, the Government established and supported a public education effort about the Treaty of Waitangi. You can read a great deal about the Treaty and its significance at the New Zealand History Online website (see related links).
What is the difference between the Tribunal, the Office of Treaty Settlements, and the Crown Forestry Rental Trust?
The Tribunal is independent of both the Office of Treaty Settlements and the Crown Forestry Rental Trust:
- The Office of Treaty Settlements is a Government organisation that has a number of functions separate from the Tribunal. One of the principal roles of the office is to negotiate with Māori on behalf of the Crown to settle historical Treaty claims.
- The Crown Forestry Rental Trust provides assistance to claimants in preparing, researching, or negotiating proposed claims either with the Tribunal or through the direct negotiations process with the Office of Treaty Settlements.
More information about these agencies can be found on their respective websites (see related links).
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