The Waitangi Tribunal, explained

Saturday, 9 March 2024

The Waitangi Tribunal is a standing commission of inquiry, set up in 1975 to investigate potential Crown breaches of the Treaty of Waitangi.
While Tribunal decisions are not legally binding, evidence is provided to the Government, along with recommendations.
Accusations have been made that the current Government is attempting to avoid the Tribunal.

If you were paying attention to Parliament, political, or te ao Māori news over the past few weeks, you probably heard numerous references to the Waitangi Tribunal.

Those references were particularly prevalent during the parliamentary debate surrounding the disestablishment of Te Aka Whai Ora - the Māori Health Authority, with some ministers questioning whether the Government was attempting to avoid the Tribunal’s scrutiny.

It has been the subject of false narratives and untruths around New Zealand and the world – just last year, an Australian senator falsely claimed the Tribunal held “veto powers” over the New Zealand Government – so what is the Waitangi Tribunal, what’s it all about, who is it for and why does it matter?

If you’ve ever wondered about any of those things, read on because this explainer’s for you.

What is the Waitangi Tribunal?

The Waitangi Tribunal is a standing commission of inquiry, set up by law in the Treaty of Waitangi Act 1975.

A commission of inquiry investigates issues of wrongdoing and makes recommendations to the Government on how to improve the situation.

Māori who believe the Government of the day had breached principles of the Treaty of Waitangi can lodge a claim with the Tribunal and if it accepts the claim, it will investigate and make recommendations to the Crown.

The Waitangi Tribunal was originally set up to investigate claims of Crown breaches only in cases dating after 1975, limiting its scope for inquiry.

This was changed 10 years later, with the Treaty of Waitangi Amendment Act 1985, which allowed any claim dating back to 1840, the year the Treaty was signed, to be investigated.

Tribunal hearings take place across Aotearoa, on marae and different locations around the country.

In this June 1996 photo, Waitangi Tribunal chief judge Eddie Durie and Bishop Manuhuia Bennett stand outside Pipitea Marae in Wellington after presenting the interim report into Taranaki Māori land claims.

Who can make a claim?

Anyone who has Māori whakapapa can make a claim to the Waitangi Tribunal if they feel the Government has breached the Treaty of Waitangi.

For tribunal claimants who can’t afford a lawyer, legal aid is available.

Yvonne Wehipeihana Wilson speaks at the Waitangi Tribunal sitting at Tukorehe Marae in Kuku, south of Levin, with daughter Tina Wehipeihana Wilson in support.

Claims cannot be brought against private companies, or private landowners who own whenua the Crown once confiscated.

Claims against local government are also not accepted, as it was the Crown that signed the Treaty.

Ngāti Whātua Ōrākei celebrate Matariki with a hautapu ceremony at Takaparawhau-Bastion Point. Their historical Waitangi Tribunal claim led to a settlement with the Crown.

Claims and inquiries have been split into categories: contemporary, historical, district and kaupapa.

Historical claims relate to matters that occurred before September 21, 1992, dating back to 1840. Since September 1, 2008, no new historical claims can be filed.

The 1987 Ōrākei claim, which resulted in a more than 300-page report detailing the Ngāti Whātua Ōrākei iwi’s entire history, growth, and eventual decline due to breaches of the Treaty, is a historical claim.

The Government agreed with the Waitangi Tribunal's findings.

It paid $3 million to Ngāti Whātua Ōrākei to assist it with housing and other development and passed a new law, the Ōrākei Act 1991, to recognise the rights of Ngāti Whātua of Ōrākei under the Treaty of Waitangi.

The Waitangi Tribunal ruled recently that the Crown breached Te Tiriti o Waitangi by allowing Māori land to become landlocked, and failing to impactfully solve the issue.

It also returned a block of land to the hapū, to do with as they please, but that land must remain with them forever.

Contemporary claims are those that relate to matters that took place on or after September 21, 1992, and commonly focus on specific issues and local areas.

Kaupapa Māori inquiries are claims that may affect Māori as a whole. For example, Tauranga-based iwi Ngai Te Rangi lodged an urgent claim with the Tribunal, stating the National-ACT-NZ First coalition is breaching Article 2 of the Treaty by failing to protect te reo Māori.

How does the Tribunal view the Treaty?

Under the Treaty of Waitangi Act 1975, the Waitangi Tribunal’s job is to determine the meaning and effect of the Treaty in order to inquire into claims. This means the Treaty of Waitangi is central to everything the Tribunal does.

The Waitangi Tribunal does not have a single set of Treaty principles that are applied in assessing each claim, as each tribunal panel must determine not only whether the Crown has acted in breach of Treaty principles, but also which principles should apply to the claims in front of it.

Members of Ngāi Tahu, led by kuia Jane Manahi, climb the steps of the University of Canterbury library, carrying bound volumes of evidence submitted to the Waitangi Tribunal, on June 7, 1989.

Unlike the court system, the Waitangi Tribunal is not bound to apply the same Treaty principles throughout multiple inquiries, but rather, take principles on a case-by-case basis.

However, the Tribunal does tend to be consistent.

Ultimately, there is not a singular set of Treaty principles used to assess all claims, rather principles are often derived from the terms of the Treaty’s English and Māori texts, and from the circumstances in which the Treaty agreement was entered into.

Do Tribunal recommendations have to be enforced?

The short answer is no, Tribunal findings are not legally enforceable, however, there have been numerous instances when the Government of the day has adopted the Tribunal’s recommendations.

For example, the previous Government committed to establishing Te Aka Whai Ora - the Māori Health Authority, as recommended by the Tribunal to address long-standing Māori health inequities.

In 1987, the Government passed the Māori Language Act, making te reo Māori an official language of New Zealand, following Tribunal recommendations.

While governments may heed the Tribunal’s recommendations, many are not acted upon.

Dr Carwyn Jones said while the Waitangi Tribunal had the jurisdiction to scrutinise the Māori Health Authority bill, it wouldn’t be the same as examining it before it had passed into legislation.

In 2018, the United Nations Committee on Economic, Social and Cultural Rights expressed concern about the number of recommendations ignored, and called on the New Zealand Government to make Tribunal recommendations legally binding.

The Tribunal does not have the power to veto Government decisions.

The Government and the Tribunal

Concerns have been raised that the coalition Government is attempting to avoid the Waitangi Tribunal.

In the debate surrounding the Pae Ora (Disestablishment of the Māori Health Authority) Amendment Bill, Opposition ministers accused Health Minister Dr Shane Reti of being scared of the Tribunal.

The Tribunal has no authority to consider issues before Parliament. It was set to undertake an urgent hearing from February 29 to March 1 to critique the Pae Ora Amendment Bill. Reti tabled the bill under urgency on February 27.

“I want to understand why the Minister is so afraid of the Waitangi Tribunal, and why is the Minister so afraid of the select committee process, that would allow people to engage correctly?” Green Party MP Scott Willis asked in the House.

Labour MP Willow-Jean Prime had questions as well: “Why are we having this legislation introduced this evening, passed, likely, tomorrow morning, when it's not even going to come into effect until 30 June? I know why. It's because there's a Waitangi Tribunal inquiry, where all of the Minister's relations are coming to present their evidence in opposition to the disestablishment of Te Aka Whai Ora.”

Reti told reporters and the opposition that the urgency was to ensure the bill was passed within the Government’s 100-day plan timeframe. He said the Tribunal would be able to critique the legislation once the bill was passed.

Dr Carwyn Jones, a leading academic in Māori laws and philosophy at Te Wānanga o Raukawa and Victoria University, said that while the Tribunal has the jurisdiction to scrutinise the legislation since it has passed, it wouldn’t be the same.

It would have been easier if the Tribunal had examined the bill beforehand, Jones said, as scrutinising the legislation now would involve unwinding a move that has already taken place.

The Tribunal has promised to examine the bill.

Jones said, even if the Crown chooses not to accept its recommendations, the Tribunal is important because it allows evidence to be provided to the public regarding Crown actions.

The Government is also sometimes keen to get input from the Tribunal, in order to deliver Te Tiriti-based policy in the best way possible, Jones said.