The New Approach inquiry process, developed and tested in 2001 and 2002 for the Gisborne inquiry, has now been implemented across all current district inquiries. The first report from a New Approach inquiry - the Turanga (Gisborne) report - has been released and two more inquiries (Urewera and Wairarapa ki Tararua) have completed hearings. Four more inquiries are in various stages of preparation.

In brief, the New Approach establishes the fastest possible process, mindful of natural justice requirements:

• All issues researched
• Interlocutory round
• Hearing of all issues and grievances
• Full Tribunal report to assist negotiation and settlement

Streamlining of previous processes has meant a significant gain in achieving results for both claimants and Crown. This has principally been achieved by isolating and lessening inquiry down-time between stages; more quickly identifying issues of mandate or representation for claimant groups; the inclusion of report customisation; and the increased discipline and management of resources and planning.

New Approach district inquiries covering large groups of claims are resulting in comprehensive Tribunal reports within 4-6 years of commencing research, or reports on the big claim issues within 3-4 years. And the New Approach is strongly geared to the ultimate strategic goals of both claimants and Crown - to achieve genuine truth and reconciliation, resolve Treaty grievances and conclude durable and comprehensive claim settlements.

Innovation of the New Approach continues with the December 2005 release of the following discussion paper. 

The new approach revisited

A discussion paper on the Waitangi Tribunal’s current and developing practices

b. Annexure 2: Modular variation of the standard new approach inquiry

In the second annexure, we describe how the new approach can also be modular in form. This variation of the standard approach allows claimants to opt for some Tribunal involvement, but not necessarily a full inquiry. This choice would usually be made when the claimants concerned are primarily focused on settlement negotiations, but the Tribunal assists with planning and commissioning research, and addressing generic issues.

The standard new approach

1. Introduction

1.1   Objectives of the new approach are:

2. Phase 1: casebook preparation

2.1   The primary purpose of this phase is to confirm the scope of the inquiry and produce a casebook of research.

2.2   This phase commences when there are sufficient human and financial resources available for the Tribunal to accord the district a priority status. In determining the order by which inquiry districts are to be brought on the hearing programme, the Tribunal has regard to: ²

• the priority that the Tribunal has accorded districts with a raupatu element;
• the readiness of claimants to proceed, including any research in progress under the auspices of either the Tribunal or the Crown Forestry Rental Trust;
• overlaps with districts already under research or in hearing;
• the findings of the Rangahaua Whānui National Overview report regarding the comparative degree of land and resource loss, and when those losses occurred;
• the preference of the claimants to go through the Tribunal process rather than directly into negotiation (where that is known);
• requests by claimants for the Tribunal to provide a forum in which evidence can be presented and a report prepared to assist in imminent negotiation towards settlement; and
• any other relevant factors.

• A general understanding of the main causes of resource alienation in the district;
• A general understanding of who the main iwi/hapū are and how they relate to each other, both historically and now;
• A general understanding of the main groups’ relationship with the Crown since 1840, and of the claims currently registered with the Tribunal including their geographical extent;
• A preliminary understanding of the research required to complete a casebook for the district;
• Confidence that sufficient funding (usually from CFRT) is available to proceed;
• An understanding by the claimants in the district of what the new approach entails, and a broad consensus that they want to embark on the process now.

2.5   The documents that will normally contain much of the information listed in 2.4 are a district overview report (Rangahaua Whānui and other research to date); claims summaries; and a review of available research by the Chief Historian. Once these are available, and arrangements have been made for resources to be targeted at the district by the Tribunal and CFRT, the Tribunal should call its first Phase 1 conference.

Casebook-phase judicial conferences
2.6   It usually takes several conferences, held over a period of months, for a judge/legal member and a kaumātua to ascertain:

a. Who are the main claimants?
It is necessary to identify the iwi and hapū and communities with separate interests in claims against the Crown. The objective is to understand more fully what lies behind the list of registered claimants. Overlapping interests of claimants should also be ascertained.

b. Who are their spokespeople?
Are they the registered claimants? If not, why not? This is where the mandate and representation issues should surface.

c. Do the main groups have legal representation?
The Tribunal believes that prejudice will likely follow if claimants do not have legal advice from the point where the main groupings of claimants have emerged. We will provide input on the process for obtaining legal aid.

d. What are the core geographical areas covered by the main groups’ claims?
And also, what is a sensible district boundary for the Tribunal to work within? In determining the extent of a particular inquiry district, the Tribunal balances a number of factors, including: ³

A shortened inquiry and hearing process might involve the Tribunal in amending, or omitting, certain of the phases described here. These possibilities are being explored in the context of what we are calling the ‘modular approach’ to inquiries, which is really a development of the new approach.

f. What research is necessary to complete the casebook?
A programme of research projects should be prepared and circulated before the conference. Usually, this draft programme will be prepared by the Tribunal’s Chief Historian, following consultation with parties on the preliminary review of available research.

Projects should have a district-wide perspective, but take account of particular iwi/hapū engagement with the Crown, and where possible, use existing specific claims as case studies. Contemporary issues that require expert evidence should also be included at this point. The pros and cons of more research should be debated. Limited funds available may also be a factor in determining the comprehensiveness of research coverage.

With some experience of preparing casebooks for new approach inquiries now to hand, we realise that pitching the casebook at the right level is a critical aspect of the success in the new approach.

It is necessary for generic issues all to be covered, together with a sampling of more detailed case studies that illustrate the breaches and their effects at hapū and whānau level.

If there is too great an emphasis on researching all specific claims in detail, or an expectation that there will be separate claimant reports on identical/shared issues, the research process will run the risk of running over time and creating unnecessary duplication. A further consequence could be an overemphasis on detail and separate pleadings at the interlocutory phase, and a consequential descent to minutiae in the statement of issues.

The planning of the casebook is therefore crucial, with involvement by experienced people who already have a sense of the scope of the issues in the district. In particular, experience is required to develop a sense of how much coverage is enough, and where the ‘too much’ line might be crossed.

• Identification of the main claimant group(s), so that both Legal Services (who provide funding for legal costs) and CFRT (who provide funding for research, claimant organisation and hearing costs) can ascertain likely cost, and begin to fund;
• Identification of mandate/representation issues, on which the Tribunal can direct specific work while research is being prepared. The Tribunal may convene hui or mediations where necessary to resolve intra-group or inter-group issues. It is envisaged that greater use will be made of alternative dispute resolution mechanisms, mainly negotiation and mediation, to resolve any intractable difficulties that arise within or between groups;
• Confirmation of the district boundary. (Note: once the district inquiry boundary is confirmed, the registered claims within the district inquiry will be consolidated by the Tribunal’s registrarial staff);
• Confirmation of the claimants’ objectives, and the type of process the Tribunal should plan to provide;
• Confirmation of a casebook research programme and deadline, to enable the Tribunal and CFRT to divide the work and set budgets for this phase.
• Decision on whether or not to establish a research coordinating and monitoring body to oversee the research programme - these have been deployed in the Wairarapa ki Tararua and CNI inquiries, for example.

Casebook review

2.13   The Tribunal’s Chief Historian will carry out a review of the casebook evidence just prior to or immediately following the casebook deadline. Additional research may be commissioned at this point to cover any gaps or weaknesses identified.

2.14   The Chief Historian’s assessment is a report to the Tribunal. It will sometimes be made available to the parties. Sometimes it will not. Each Tribunal will make that decision depending on the circumstances in that district inquiry.

2.15   In the past, a casebook has been considered ready to close when 80% of the research necessary for the inquiry has been filed. This percentage is probably too low to work in the new approach. This is because the casebook closure triggers the finalisation of statements of claim. If significant research is outstanding at that point, claimants cannot be expected to make their final amendments to their statements of claim. To require this of them in the absence of all the evidence would be in breach of rules of procedural fairness. But to allow further amendments to statements of claim and then of course also to the statement of response would be to prolong and complicate the interlocutory phase of the process considerably. This is most undesirable. Accordingly, the casebook will usually need to be about 95% complete, with all major reports filed, before the next phase in the process can ensue.

3. Phase 2: interlocutory conferencing

3.1   The primary purpose of this phase is to particularise and refine the claim issues. It commences once the casebook is completed and distributed.

3.2   The steps set out in the table below are essentially those that were taken in the Gisborne, Wairarapa and Urewera district inquiries.

3.3   Because of a sense that these steps can usefully be refined to achieve an even better outcome, some variations have begun to emerge in the planning of other district inquiries as they come on stream.

3.4   With respect to statements of claim, in both Urewera and Wairarapa there was considerable replication of the main pleadings of the claimants in those districts. This led to a great deal of work (on the part of claimant counsel, Tribunal staff, and Crown counsel) that was probably not needed to produce the statement of issues that is the goal of the pleading process.

3.5   Where there are many separate claims and claimants, and it is considered desirable to avoid the main or ‘generic’ pleadings of the claimants being submitted to the Tribunal in many different forms in separate statements of claim, an alternative approach is available. It is currently being deployed in the Whanganui district inquiry, and may be applicable to other districts too.

3.6   Claimant counsel in the Whanganui district inquiry are working together to produce one statement of claim that sets out the claimants’ pleading of the main allegations against the Crown that the Māori groups in the district largely have in common.

3.7   This will have the considerable advantage of there being an agreed pleading of what are likely to be the main issues in the district inquiry, and of requiring the Crown to respond to these only once.

3.8   Where this approach is followed, the claimants would file, in addition to a generic statement of claim, a separate statement of the claims against the Crown that are particular to them. For each claimant group, therefore, there would be (1) participation in a generic statement of claim filed on behalf of all claimants in the district; and also (2) a separate statement of claim, filed after the generic statement of claim, setting out the claims against the Crown particular to that claimant group.

3.9   Where this two-step approach is used for the filing of statements of claim, the indicative timetable set out below would need to be varied.

3.17   Once the Tribunal has determined the number of hearing days that will be made available to the district inquiry, the Tribunal prefers that claimant counsel co-ordinate and agree between them allocation of the time to the various groupings of claimants within the district inquiry. During the period of interlocutory conferencing, it becomes apparent to all participants who are the leading counsel in the inquiry. These will usually be experienced practitioners who are representing the main claimant groupings. The Tribunal looks to these counsel to co-ordinate the process of planning the hearing programme. Tribunal staff will usually help arrange hui to this end, and assist with the liaison between claimant parties and the Crown. Once the parties have reached agreement in principle on the allocation of time as between the claimant groupings, and as between claimants and the Crown, and also the preferred venue for hearings, a draft plan is submitted to the Tribunal for its consideration. The Tribunal will usually go along with the parties’ preferences.

3.18   In the event of agreement between the parties proving impossible (this has not happened yet), the Tribunal would itself have to allocate hearing time to the parties.

4. Phase 3: hearings

4.1   The primary purpose of this phase is to hear and test the evidence and submissions of claimants and the Crown, and to set out the Tribunal’s findings and recommendations, and the reasoning for its decisions.

4.2   This phase commences once the Tribunal is satisfied that:

Cross-examination of the claimants’ non-technical witnesses

4.11   These witnesses are called upon to tell the claimants’ story, and lay down their take, from the point of view of the group itself. Cross-examination of such witnesses raises issues specific to the Tribunal and its jurisdiction.

4.12   The Tribunal recognises that there is an inherent bias in this kind of claimant evidence. Its purpose is to lay down a tribal whāriki to establish the group’s identity. The group’s importance, and the nature and extent of its sphere of influence, is nearly always inflated by those who operate from within it. This is an inevitable part of the establishment and expression of mana. In particular, historical rivalries with neighbouring tribal groups are unlikely to be viewed objectively by any of the parties involved.

4.13   The Tribunal’s primary focus in inquiries is on whether claimants have been prejudicially affected by any acts, omissions, policies or practices of the Crown that are inconsistent with the principles of the Treaty of Waitangi, and are within the Tribunal’s jurisdiction. Claimants’ statements of identity and personal experience operate within the truth and reconciliation function of the Tribunal, and are critical to its function as a body offering catharsis and recognition to people whose grievances have been long overlooked.

4.14   It is rarely the case that cross-examination of these witnesses will assist the Tribunal in its primary function. Inevitably, claimants sometimes wish to expose and play out tribal rivalries before the Tribunal. Counsel play an important role in ensuring that competing claims for mana as between claimants do not overshadow the Tribunal’s task. Counsel need to trust the Tribunal members’ experience and wisdom, that enables them to judge claims to mana in the light of the evidence as a whole, and also their own knowledge of the relevant politics.

4.15   Obviously, any wild overstatements that witnesses offer as fact may need to be pegged back by careful questioning. But challenges can also serve to inflate differences, making it more rather than less difficult for the Tribunal to perceive where the truth of the matter lies. Often it will be just as effective for counsel simply to point out that the party he or she represents will be presenting evidence that supports a different view. While this approach departs from the formal rules of evidence, it is within the Tribunal’s jurisdiction to encourage this approach where appropriate. It will often conform better with the Tribunal’s kawa of ensuring that all witnesses, and especially kaumātua, are accorded the utmost respect.

4.16   An alternative approach is for counsel to submit questions in writing to non-technical claimant witnesses. This has the advantage of allowing the witness to reflect on the issues, and provide a considered answer. Often this will allow a more measured response, that conforms better with the usual desire of claimant groups to maintain good relations with their neighbours, but also to assert their own mana.

4.17   These guidelines should not be taken as indicating that cross-examination of non-technical claimant witnesses will never be appropriate. It will, however, not usually be appropriate, should always be approached with caution, and should always be conducted with a courtesy that reflects respect for the mana of the witness and his or her tribal group, and also for the mana of the forum.

5. Phase 4: report writing

5.1   The Tribunal will draft a report in keeping with its statutory requirement to make findings on whether the Crown has breached the principles of the Treaty of Waitangi, whether prejudice has resulted for claimants, and to make recommendations on how to remove the prejudice, as appropriate. Within that statutory requirement, however, there is scope for different types of report.

5.2   The form that the report will take may be the subject of discussion with the parties during the interlocutory process, and again at the conclusion of hearings. Depending on what is required for the inquiry, the report could be:

5.3   All reports should be subject to the Tribunal’s established editorial standards, to maintain consistency of quality and presentation. Preparation of the report will be faster or slower depending on which of the options under 5.2 above is chosen as appropriate. The Tribunal expects each inquiry to result in a published report 12-24 months from the completion of hearings.

5.4   After the hearings have concluded, and the discussion as to form of report sought has been conducted, each Tribunal will need to take some time to plan the path forward. It may be beneficial for its decisions about this to be communicated to the claimants either by memorandum or in a hui. Then if, during the course of its report writing, the Tribunal's intentions change (eg as to the timing or the length of the report, or the issues to be canvassed in depth) it may be appropriate to update the parties. Again, this may be by memorandum of the Tribunal or hui involving Tribunal members and claimants, depending on the circumstances.

6. Phase 5: negotiations and settlement

6.1   The primary purpose of this phase is to provide the claimants and Crown with the opportunity to reach settlement of all Treaty grievances, both historical and contemporary. The Tribunal’s role within this phase is reactive only. It can become involved when either party wants the Tribunal’s opinion on

6.2   The Tribunal anticipates that its role will be limited to occasional conferences and very limited hearings.

7.Note on parallel processes

7.1   The Office of Treaty Settlements has published its process and guiding principles. It is a four-stage process:

7.2   It is well recognised that the inquiry into claims would benefit in terms of time and cost savings if the Tribunal’s and the Crown’s processes proceeded in tandem.

7.3   The possible ways in which the two processes might proceed simultaneously is the subject of ongoing discussion between the Waitangi Tribunal and the Office of Treaty Settlements and Crown Law Office.

7.4   The 'modular' variation of the new approach is a move in the direction of synthesising the inquiry and settlement processes (see annexure 2).

8.Commentary on the new approach

8.1   The Waitangi Tribunal is uniquely bicultural in its composition and modus operandi. It is vitally important that this feature should remain intact.

8.2   In particular, the Tribunal’s respect for, and commitment to, tikanga Māori must remain. It is difficult to be categorical about how issues of tikanga might arise in hearings, or how they should be dealt with when they do. Suffice to say that the mana of all those appearing before the Tribunal should continue to be respected. Tribunals must continue to be flexible, and adopt processes dictated by tikanga whenever such circumstances arise.

8.3   A Tribunal hearing is a forum not only for arguments and stories, but also for emotions. It is well recognised that Tribunal hearings can provide an important catharsis for claimants, and this is a critical part of the Treaty claims resolution process. Time must be taken, where appropriate, to ensure that this aspect of the Tribunal’s role is not undermined.

8.4   In short, tikanga must remain to the forefront, and people, and their different perspectives, are to be respected. But this new approach to managing claims is an endeavour to ensure that these imperatives are accompanied by a commitment to discipline, and efficient use of limited resources. Finding the right balance is an ongoing challenge.

8.5   It is hoped that the pre-hearing conferencing will afford the Tribunal the opportunity to develop new techniques, incorporating the tradition of kōrero kanohi ki te kanohi, to define and refine the issues in the claims, and assist in the management of intra- and inter-tribal tensions and disputes.

8.6   The challenge for all of us is to engage in this new approach in a way that enables the ongoing development of the Tribunal’s unique kawa, and at the same time makes our processes more responsive and efficient. If we can achieve such a blend, the mana of the Tribunal, and of all those who engage with it, will surely be enhanced.

The modular new approach

1. Introduction

2. Start-up

2.1   The process of start-up conferences is the same as described in annexure 1, with the addition of a process to define the generic, big-picture issues that would form the core of the first series of modules.

2.2   In the Central North Island inquiry, the Tribunal’s Chief Historian and staff released discussion papers identifying the big-picture issues, the research currently available on them, and proposing additional research. These papers were reviewed by the Tribunal, claimants, the Crown, and a committee of research experts representing the parties. The result was an agreed definition of the big-picture issues and a research programme to cover them. The timetabling of research, and the setting of a casebook deadline, followed detailed planning by the funding agency (Crown Forestry Rental Trust), the research committee, and the parties.

3. The first module: research phase

3.1   A programme of casebook research, mainly consisting of broad-brush overview reports, is carried out to provide research reports on the big-picture issues. It is monitored by the parties and the Tribunal via conferences and the research committee.

3.2   Simultaneously with the written research programme, the claimants prepare their oral evidence. This part of the preparation needs to be completed earlier than in the standard new approach, which gives the claimants until the start of hearings to finish this work. The oral evidence needs to be completed and produced in advance in a form that will allow it to meet the casebook deadline.

3.3   At the same time, the Crown carries out its research on the issues. The planning and progress of the Crown’s research is made public and monitored in the same way as the claimants’ research. It does not follow and respond to the production of the claimant and Tribunal research, as in the standard new approach.

3.4   Both research programmes (claimant and Crown) must be completed by the casebook deadline set by the Tribunal. The Chief Historian will then review the casebook, as for the standard new approach, and advise as to whether there is a sufficient base of evidence for the inquiry to proceed to hearing.

3.5   The completion of the casebook is the end of the first module. At this point, the claimants and the Crown may decide that they have sufficient knowledge of each other and the issues, and sufficient research material, to proceed directly to negotiations. If not, they may opt to continue with the second module.

4. The second module: interlocutory phase

4.1   In its modular version, the interlocutory phase of the new approach is greatly truncated. Parts of it may be omitted or varied to suit the circumstances of the claimants and the timeframes within which the parties are operating.

4.2   For instance, in the Central North Island modular inquiry, claimants had the option of particularising those parts of their statements of claim which deal with the big-picture issues. There was no requirement to do so, and the cut-off for filing new claims at this point applied only to stage 1 of the inquiry. The Crown was required to produce a formal statement of its position on the big-picture issues, in advance of the hearings. This responded more to the casebook of evidence than to particularised statements of claim, but set out the Crown’s position on all key matters.

4.3   After considering the casebook, the statements of claim, and the Crown’s statement of position, the Tribunal will distil matters for its inquiry and draft a statement of issues (SOI). It is envisaged that this will be a short and generic document. There will be no exchange of drafts, but the matters may be addressed at judicial conferences if parties or the Tribunal feel that this would improve understanding of positions and assist the inquiry.

4.4   The interlocutory phase would normally be confined to a period of about three months, but timeframes will vary depending on the amount of evidence, the number and complexity of issues, and the degree of agreement between the parties.

4.5   At the end of the interlocutory phase, a conference would be held to discuss whether, and how, to conduct the third module of the inquiry. At this point, the Crown and claimants may feel that they are sufficiently prepared and informed to negotiate a fair and durable settlement. Alternatively, they may decide to proceed with the third module (hearings). In that case, a planning conference would timetable the hearings, as with the standard new approach.

5. Third module: hearings

5.1   Hearings will proceed as described for the standard new approach (see annexure 1).

5.2   Like the interlocutory phase, however, there will be a greater emphasis on speed. The aim will be to conduct the hearings over as short a period as possible, with a view to achieving a quick result. The number and conduct of hearings, based on the smaller, big-picture casebook, will be relatively circumscribed.

5.3   These emphases reflect the desire of claimants and Crown, in choosing the modular new approach, to move quickly to a point where settlement negotiations can commence.

5.4   It is anticipated that, at the end of the hearings, the claimants and the Crown may decide that they are ready to negotiate a settlement. They may opt to leave the Tribunal process at this point. It is possible for the processes to coincide, depending on the choices of parties, so that the Tribunal proceeds to write its report during the preliminary phases of negotiation.

6. Fourth module: a Tribunal report

6.1   The nature of the Tribunal Report produced as a result of the big-picture inquiry will depend on the amount and depth of evidence, the number and seriousness of the issues remaining in contention (as opposed to agreed), and the preferences of parties.

6.2   The Tribunal may write a brief report. It may or may not include findings. It may or may not include recommendations.

6.3   Alternatively, the parties may prefer a fuller report on the issues, with a substantial historical analysis and narrative, culminating in findings and recommendations. The outcome, and the length of time involved, will depend on the choices of parties, the views of the Tribunal hearing the claims, and the evidential base provided.

6.4   In any event, the Tribunal would seek to produce the report substantially faster than a full, standard new approach report. It may be possible to publish the report within a six-month timeframe.

7. Fifth module: start-up conferences for an inquiry into particulars

7.1   After receipt of the Tribunal’s report, the claimants and Crown may enter into negotiations. Alternatively, they may decide that a settlement will require the full exposition of all issues and all particular claims. The parties may seek a conference on the matter. If, as a result of the choices made at the conference, the Tribunal resumes its inquiry on a more detailed and particular basis, there would be start-up conferences to agree on a second research programme and a second casebook deadline.

7.2   The process is then likely to follow the standard new approach, with the exclusion of the matters already heard and reported upon.