1. Waitangi Tribunal The tribunal process is a form of “truth and
reconciliation” process.
Tariana Turia

2. Waitangi Tribunal in Session at Waitangi 2009

3. Waitangi Tribunal
1975 Crown appointed and controlled Commission of Inquiry
Directed to hear any claim by a Maori or group of Maori people whereby action of the Crown had been prejudicial to them
“given the exclusive right to interpret the treaty” (Temm, 1990:5)
Makes recommendations

4. Waitangi Tribunal Chief Judge of the Maori Land Court
Minister of Justice - appointee
Minister of Maori Affairs – appointee
First Tribunal
Judge Gillanders-Scott (Chairman)
Sir Graham Latimer
L.H. Southwick Q.C
Joseph Hawke - Sought relief from conviction because Fisheries Act under which he was prosecuted was contrary to the Treaty.

5. Waitangi Tribunal 1980 Judge Eddie Taihakurei Durie
Southwick retired and replaced by Paul Temm Q.C
Tribunal established protocols for hearing claims
Tikanga Maori came to the fore in that process
Marae venue
Local tikanga prevails – handing over the mauri of the marae
Evidence given in language of choice
Uninterrupted giving of evidence

6. Waitangi Tribunal 1984 Pressure by Maoridom retrospective claims
Treaty of Waitangi Amendment Act 1985
Change to Tribunal 3 to 7 members
quorum of Chair + 3 others
at least 4 of the 7 members to be of Maori descent
1988 Numbers increased to 16 – quorum of 4, maxumum of 7 members sitting

7. Waitangi Tribunal historical - contemporary - conceptual -
1985 retrospective
historical -
past Crown actions
contemporary -
current Crown actions
conceptual -
‘ownership’ of natural resources

8. It does not settle claims, it makes recommendations to government
All claims are settled by negotiation with government
In most cases its recommendations are not binding on government
It cannot make recommendations over the return of private land.

9. 4 Cornerstone Decisions: (a) Motunui
Motunui Case 1983
Synthetic fuel plant ‘needed a water right’ to discharge effluent
Te Atiawa - effluent would pollute their shellfish beds
Such discharge near their traditional fishing grounds inconsistent with the protection afforded by Article II of the Treaty

10. (a) Motunui contd. Motunui Case 1983 Tribunal upheld Te Atiawa’s Claim
Prime Minister Muldoon – govt. would not follow the rec.
Public pressure – govt. agrees to abide with the Tribunal’s rec. and the effluent was redirected
Tribunal report – cultural significance, value recognised by govt., interpretation of the Treaty

11. (b) Kaituna River
Effluent from the Rotorua City Council sewerage piped to Kaituna river
Claim lodged by Ngati Pikiao – Te Arawa
Kaumatua evidence
Urged the tribunal of the need to protect the river from harm
His duty to protect his people from harm
Cultural significance and integrity of the river

12. (b) Kaituna River contd.
Tribunal rec:
Upheld Ngati Pikiao Claim
Pipeline be abandoned
Chemical alternatives
Acknowledge changed status of Treaty from 1877 ‘simple nullity’ to ‘statutory instrument’
Signalled: legislation may be in conflict with Treaty Principles

13. (c) Manukau Harbour
Claim lodged by the Iwi who have mana whenua, mana moana of the area around the Manukau Harbour
Historical claim of land taken illegally – Maori totally disenfranchised
Documentary evidence from Pakeha sources
Oral evidence Maori narrative

14. (c) Manukau Harbour Tribunal upheld Claim
“Tainui people of the Waikato never rebelled but were attacked by British troops in direct violation of Article II of the Treaty”
Discussion on ‘kawantanga’ and
An interest of partnership

15. (d) Te Reo Maori
Claim lodged by Huirangi Waikerepuru & Nga Kaiwhakapumau I Te Reo Incorporated Society
Crown failed to protect te reo – breach of Article two of the Treaty –protection of ‘other properties’ – ‘o ratou taonga katoa’
Maori culture # NZ Heritage # Te Reo Maori
But! Dignity of Maori paramount
Evidence – given predominantly in Maori
Kaumatua – Te Reo Maori Orgns. – Maori Councils – Educationalists – Broadcasters – Legal Agencies – Pakehas Against Racism – Health Agencies – International Orgns.
Waiwhetu Marae: June 1985, October 1985 & Te Herenga Waka Marae: October 1985

16. (d) Te Reo Maori Tribunal rec:
Te Reo be restored to proper place as 1st language of this land – ‘Official’ status
Right of use in Courts, Govt. Departments, local authorities and public bodies
Education
Maori Language Commission – Te Taura Whiri I te reo Māori
Te Reo affected all New Zealand and New Zealanders
Maori ethnicity/ancestry?

17. The Four Cornerstones
Motunui - Duty on the Crown to protect cultural values
- Treaty foundation for future
- Treaty a living thing
Kaituna - Duty of the Crown to protect from harm: Duty of Kaumatua also to protect from harm – cultural values
- legal effect of the Treaty

18. The Four Cornerstones Manukau Harbour - Historical record the
truth of this history
Discussion of ‘kawanatanga’ and the notion of partnership
Te Reo Maori - Looked to the future - What’s a
Maori?
- Right to protection – not a
passive role

19. State Owned Enterprises Act - (SOE Act) 1986
Sale of NZ Rail
Tariana & Maori Party challenge their coalition partner 2012
SOE 1986 Section 9
Treaty of Waitangi
Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.
"This is going right back to the 1980s where the Government of that day was determined to move from Crown Ownership to the State Owned Enterprise model and privatisation and that meant Maori could not make claims directly.
Genesis Energy, Meridian Energy, Mighty River Power and Solid Energy

20. Principles emerging from tribunal Hearings
Right to make laws
Partnership – good faith
Treaty is adaptable
Needs of Maori & wider community
Maori interest actively protected
Pre-emption implies reciprocal duty of Crown
Crown cannot evade obligation
Crown obliged to legally recognise tribal Rangatiratanga
Early consultation
Tino rangatiratanga incl. management of resources & other taonga according to tikanga

21. Principles of the Treaty of Waitangi
Government (kāwanatanga)
Maori Self Management (rangatiratanga)
Equality
Reasonable co-operation
Principle of Redress
Unilaterally determined by the Crown in an attempt to water down the articles of the Treaty

22. Principles of the Treaty of Waitangi
The principle of Govt. (kāwanatanga): The govt. has the right to govern and make laws.
The principle of self-management (rangatiratanga): iwi have the right to organise as iwi and, under the law, control the resources they own.
The principle of equality: all New Zealanders are equal under the law.
The principle of reasonable co-operation: both the Govt. and iwi are obliged to accord each other reasonable co-operation on major issues of common concern.
The principle of redress: The govt. is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.

23. Waitangi Tribunal in Session at Waitangi 2009