The Waitangi Tribunal and the Settlement of Historical Treaty Claims

A critical role in New Zealand society

There is new confidence and dynamism in Māori communities that have concluded Treaty settlements. But for many, these opportunities remain a long way in the future. Some Māori still live with a sense of grievance and loss about the way our society treated them in the past. For groups affected by colonial wars, confiscation and large-scale land loss, this sense of grievance can be profound. When it is combined with social deprivation and exclusion, the maintenance of social cohesion becomes a concern.

New Zealanders accept that these issues must be addressed. In the interests not only of Māori, but of us all, we need to

• resolve the grievances;
• restore the wellbeing of Māori communities; and
• reconcile Māori communities with the state and other parts of society.

This process is well underway, and the Waitangi Tribunal plays a critical role in it.

In the Tribunal, Pākehā and Māori leaders and elders sit together with Judges to

• investigate to find the truth of the past;
• listen to claimant communities, and to the Crown;
• affirm claims where they are proven; and
• explain where they fall short.

Hearings are in public. Evidence is tested, and authoritative reports produced. The Tribunal engages actively with communities over a period of many months, and as a result of this interaction, communities change and move forward.

The changes brought about by groups' engagement with the Tribunal are a necessary platform for a robust and durable claim settlement process. Without a Waitangi Tribunal inquiry, most claimant groups are not ready to settle. In the process of preparing for and participating in Tribunal hearings, groups test and confirm their leaders, and are encouraged to pull together as communities. They emerge ready to make hard decisions that will stick. This groundwork is vital for the challenge ahead: negotiating a full and final settlement with the Crown.

A balanced, streamlined inquiry process

The Tribunal is committed to innovation. It recognises that in the past, inquiries took too long. It has updated and streamlined its processes so that nowadays, the hearing phase of district inquiries takes place over a matter of months,(1) rather than being spaced over several years.(2) Now, Tribunal panels work to a carefully monitored plan to deliver their reports within two years of hearings ending.(3) These timelines have halved the length of major historical inquiries,(4) and compare favourably with the time it takes to negotiate major Treaty settlements.(5)

The Tribunal uses its New Approach in all new inquiries into historical claims.(6) There are two main forms:

1. the standard form, which emphasises a streamlined pre-hearing process, and the early articulation of the parties' cases so that agreements can be reached and concessions made in advance, thereby reducing the issues argued in hearing; and

2. the modular form, which is available to claimants who favour a quick entry into settlement negotiations with the Crown, but who seek the Tribunal's assistance in developing and testing the evidence, defining the main issues, and providing a general report on the extent of Treaty breach.

Using the modular form, a partial inquiry into key issues may finish in as little as three years all up.

The Tribunal aims for a balanced approach that is practical, efficient and economical. Research, multiple claimants, and a fair hearing will always take time - and time is a necessary characteristic of a process that is transformative. But it cannot be allowed to take too long. The challenge is always to balance the need for a process that is comprehensive and healing with a recognition that early settlement must be encouraged and facilitated. The Tribunal is now well on track to achieving that balance.

Accelerating progress towards Treaty settlements

The Tribunal now has sufficient experience of running standard and modular form new approach inquiries to be able to predict timelines.(7)

If all claimants opted to put their claims through a modular form inquiry, large numbers of claims and claimants would be addressed simultaneously in multi-district, regional inquiries that could enable the hearing of all historical claims by 2012. This would require a high level of integration between the work of the Crown in negotiating direct settlements and the work of the Tribunal in conducting inquiries. It would also require a much higher level of Crown/claimant cooperation than is currently the case, including constructive engagement by the Crown in Tribunal inquiries on issues it is likely to concede in subsequent negotiations for settlement.

However, if all chose the more adversarial standard form inquiry, the finish date would be closer to 2020.

Probably, there will be a mixture of modular and standard form inquiries, and some districts may proceed straight to direct negotiations without a Tribunal hearing. Such a mix would enable completion at or before 2015.(8)

Most importantly, the choices are for the Crown and claimants to make.

The short point is that the Tribunal is ready, willing and able to facilitate settlement negotiation in line with Government and claimant aspirations for all Treaty claims to be settled as soon as possible.

07 December 2005

NOTES
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(1) Eg. Gisborne 8 months, Wairarapa ki Tararua 13 months, Urewera 20 months.

(2) Eg. 3 years for Mohaka ki Ahuriri, and 4 years each for Kaipara, Northern South Island and
Hauraki.

(3) Eg. the report for Gisborne took just over two years to complete. Wairarapa and Urewera
are currently in report writing, aiming to report within two years of the final hearing. Examples
of inquiries commenced under the 'old' approach are Mohaka ki Ahuriri, which completed its
main report in just over 4 years, and Kaipara and Hauraki, which have so far spent 4 and 3
years respectively in report writing.

(4) The overall period from start of planning and research to issue of report has reduced from
8-12 to 4-6 years.

(5) While these figures are approximate, we estimate that the period from commencement of
serious negotiations to implementing statute lasted about 5 years for Tainui and 7 years for
Ngai Tahu, the two largest land claim settlements concluded to date. Most other major tribal
settlements in the last 10 years have taken between 4 and 8 years to bring from preparation
for mandate recognition to statutory completion, one of the quickest being Te Uri o Hau (3-4
years).

(6) Contemporary claims are covered in a companion paper.

(7) Maps are appended showing the current status of Tribunal district inquiries and Treaty
settlements.

(8) This date is dependent upon adequate human and financial resourcing. The current
constraint is on the ability to commission district-wide research programmes, undertake
claimant facilitation, and provide report-writing support to panels. Additional resourcing of
negotiations may also be required to sustain the momentum towards settlement.

Please click on maps for larger view