Waitangi Tribunal Explained
The Waitangi Tribunal (Māori: Te Rōpū Whakamana i te Tiriti) is a New Zealand permanent commission of inquiry established by an Act of Parliament in 1975. It is charged with investigating and making recommendations on claims brought by Māori relating to actions or omissions of the Crown, in the period since 1840, that breach the promises made in the Treaty of Waitangi. In 1975 protests about unresolved Treaty of Waitangi grievances had been increasing for some time, and the Tribunal was set up to provide a legal process for the investigation of those grievances. The inquiry process contributes to the resolution of Treaty claims and, in that way, to the reconciliation of outstanding issues between Māori and Pākehā.
The Waitangi Tribunal is not a court. Because it was established as a permanent commission of inquiry, its method of investigation differs significantly from that of a court in several important respects:
- Generally, the Tribunal has authority only to make recommendations. In certain limited situations, the Tribunal does have binding powers, but in most instances, its recommendations do not bind the Crown, the claimants, or any others participating in its inquiries. In contrast, courts can make rulings that bind the parties to whom they relate.
- The Tribunal's process is more inquisitorial and less adversarial than that followed in the courts. In particular, it can conduct its own research so as to try to find the truth of a matter, whereas courts generally must decide a matter solely on the evidence and legal arguments presented by the participating parties.
- The Tribunal's process is flexible - the Tribunal is not necessarily required to follow the rules of evidence that generally apply in the courts, and it may adapt its procedures as it thinks fit. For example, the Tribunal may follow 'te kawa o te marae'. In contrast, the procedure in courts is much less flexible, and there are normally strict rules of evidence to be followed.
- The Tribunal does not have final authority to decide points of law. That power rests with the courts. However, the Tribunal has exclusive authority to determine the meaning and effect of the Treaty as it is embodied in both the Māori and the English texts.
- The Tribunal has a limited power to summons witnesses, require the production of documents, and maintain order at its hearings. But it does not have a general power to make orders preventing something from happening or compelling something to happen. Nor can it make a party to Tribunal proceedings pay costs.
- The Tribunal does not settle claims; it only makes recommendations to the Government. It is not involved in the settlement process, and claimants agree not to pursue matters through the Tribunal while they are engaged in the negotiation process.
- Claims are settled by negotiation with the Government. The Office of Treaty Settlements manages the negotiation of Treaty settlements for the Government, and all matters related to negotiations should be addressed to that office.
- The Tribunal cannot make recommendations over the return of private land. It may inquire into and report on claims relating to land that is privately owned, but unless the land is memorialised, the Tribunal may not recommend that it be returned to Māori ownership or that the Crown acquire it. (Memorialised lands are lands owned, or formerly owned, by a State-owned enterprise or a tertiary institution, or former New Zealand Railways lands, that have a memorial (or notation) on their certificate of title advising that the Waitangi Tribunal may recommend that the land be returned to Māori ownership.)
- The Tribunal can register the claim of any Māori with a grievance against a policy, practice, act, or omission of the Crown. The Tribunal is not required to check that a claimant has a mandate from any group, but it may refuse to inquire into a claim that is considered to be frivolous or vexatious.
The Tribunal process is inquisitorial, not adversarial. It seeks to get to the truth of the matter. The aim is to determine whether a claim is well founded.
Approximately half the members are Māori and half are Pākehā.