What is the Waitangi Tribunal?

What is the Waitangi Tribunal?

The Waitangi Tribunal is a permanent commission of inquiry that considers claims brought by Māori about Crown acts or omissions that breach the promises made in the Treaty of Waitangi, signed in 1840 between rangatira (chiefs) representing the iwi (tribes) of Aotearoa and representatives of the British Crown. 

The Tribunal was established in 1975 by the Treaty of Waitangi Act, following a growth in protests in the early 1970s that the Crown was not honouring the Treaty.

After researching the claim and holding a hearing, the tribunal makes recommendations to the government in a report. These recommendations are not legally binding because the tribunal is not a court. However, the recommendations of the tribunal have often been accepted by the government, or become the basis for negotiations between the government and the claimants. Legal aid is available to claimants to pay their legal costs for Waitangi Tribunal proceedings. The resulting Acts of Parliament and Deeds of Settlement have contributed to an affirmation of the place of Māori in New Zealand society and their rights to and legal protections of their land, culture, resources and language. The case files compiled by the Tribunal over time are a substantial documentation of the history of the relationship between Māori and the Crown in Aotearoa. 

First claims

The very first claim was brought by Joe Hawke of Ngāti Whātua in 1977. It was a simple case concerning his exercise of customary fishing rights, but it came about as part of a full-blown political issue of the late 1970s and 1980s, the right of Ngāti Whātua o Ōrākei to their tribal land at Bastion Point Takaparawhau. Ngāti Whātua had exercised mana whenua over the whole Tāmaki isthmus up to European times. Despite Ngāti Whātua giving their wholesome support to the early colonial government, its laws and its institutions, and never arming or fighting against it, their land holding had been eroded to be repurposed for a military outpost, residential housing and a sewer pipe. For 506 days between 1977 and 1978, the Ōrākei Māori Action Committee occupied the land at Bastion Point Takaparawhau in a nonviolent protest to bring attention to the loss of their tribal land. The heavy-handed dismissal of the protesters by armed police gained international attention and brought the issue under scrutiny. The Waitangi Tribunal released their report on the Ōrākei claim in 1987, recommending the land of Ngāti Whātua be returned to them at Bastion Point and a $3 million cash compensation be paid to the tribe. The government enacted the recommendations.

Another high profile case in the Tribunal’s early years was brought by Te Āti Awa, who in 1983 challenged the plan of a partly-Crown owned Taranaki synthetic fuel plant to discharge an untreated waste stream into the sea near a reef where they gathered shellfish. The Tribunal upheld their claim, and the Crown followed their recommendation that the waste be directed to a treatment plant. There have been other important claims about Māori rights to use and protect their natural resources, especially where they were traditionally used to gather food, such as the Muriwhenua claim.

Historic claims

When it was formed, the Tribunal was only able to consider claims about events that had occurred after 1975. Most Māori grievances were about government land confiscations that had taken place many years earlier. The 1984 Labour government significantly extended the power of the Waitangi Tribunal, allowing it to examine claims dating back to the signing of the Treaty in 1840. This increased jurisdiction enabled a very big claim, Te Kerēme, in 1986 about land contracts made from 1844 onwards between the government and Ngāi Tahu, in which the Crown was sold 80% of the South Island. In its report, the Tribunal said: “The Tribunal cannot avoid the conclusion that in acquiring from Ngāi Tahu 34.5 million acres, more than half the landmass of New Zealand, for 14,750 pounds, and leaving them with only 37,757 acres, the Crown acted unconscionably and in repeated breach of the Treaty of Waitangi. As a consequence, Ngāi Tahu has suffered grave injustices over more than 140 years. The tribe is clearly entitled to very substantial redress from the Crown.” Negotiations began in 1991 and in 1998, the parties signed a Deed of Settlement, compensating Ngāi Tahu with $170 million. 

Roughly 100 settlements have been made between the iwi of New Zealand and the Crown for Crown breaches of the treaty. Most Tribunal inquiries are into historic land confiscations, unfair purchases of land or protection of fisheries, but there are also ‘kaupapa inquiries.’ Kaupapa inquiries address kaupapa such as mana wāhine, housing policy and services and the justice system. Some claims that have had a large impact have addressed taonga Māori, including language, culture, knowledge and natural taonga.

Te Reo Māori

In 1984, the organisation behind the first Māori radio station, Ngā Kaiwhakapūmau i te Reo, and one of its founders, Huirangi Waikerepuru, lodged a claim arguing that the Crown had contributed to the erosion and loss of Te Reo Māori by excluding it from laws relating to education, health, broadcasting and the Māori people. Because of the lack of official legislation relating to Te Reo Māori, it was not heard in places like Parliament, hospitals, courtrooms and government departments, and had ‘no mana.’ In this, the Crown had failed in its responsibility for “active protection” of Māori under the articles of the Treaty. On 29 April 1986, the Waitangi Tribunal issued their report on Te Reo Māori claim and the following year, the government passed the Māori Language Act, which made Māori an official language of New Zealand. The case also led to the establishment of Te Taura Whiri i te Reo Māori (the Māori Language Commission) and increased broadcasting in Māori.

Taonga Māori

The Fauna, Flora and Intellectual Property Rights claim was about protecting taonga Māori. It was lodged in 1991 by six individuals from several tribes and is often referred to by its identification number, Wai262. The Wai262 claim challenged the tribunal to consider the question of who controls and protects mātauranga Māori, and artistic and cultural works such as haka and waiata, in New Zealand, and who acts as kaitiaki (guardians) of Māori natural taonga, such as kūmara, pōhutukawa, kererū/kūkū/kūkupa, tuatara, puawānanga, pūpūharakeke and koromiko. The claimants were concerned by the lack of protection of Māori culture in New Zealand and the increasing use of Māori culture by non-Māori. The claim was very important in affirming the place and the role of Māori cultural and natural taonga and Māori cultural identity in New Zealand.

For various reasons, the Tribunal’s report on the claim was released many years later, on 2 July 2011. The report, “Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy affecting Māori Culture and Identity” found the relationship between Māori and the Crown must change “from the familiar late-twentieth century partnership built on the notion that the perpetrator’s successor must pay the victim’s successor for the original colonial sin, into a twenty-first century relationship of mutual advantage in which, through joint and agreed action, both sides end up better off than they were before they started.”

The impact of the Waitangi Tribunal

The Waitangi Tribunal demonstrates New Zealand’s commitment to honouring the Treaty of Waitangi. The persistence and courage of claimants and deep inquiries carried out by the Tribunal have led to government action to compensate, protect and provide justice for Māori who suffered from Crown breaches of the Treaty. The case files of the Waitangi Tribunal are an important record of New Zealand’s continuing work between Māori and Pākehā New Zealanders to create a better country and fairer society.