By Mere Takoko
Critics of National’s Treaty settlement policy say it’s been captured by self-decorated bureaucrats, is negating the rights of some customary Mäori land owners and has turned the Waitangi Tribunal into an administrative clerk for the Crown. Supporters say they are impatient with all this gravy-train treaty business and it’s vital that settlements are put to bed by 2014 so the country can move on from the past. In this two part series, KOHA considers where exactly we’re moving to and whether it’s ‘lights out’ for the Waitangi Tribunal.
If you want some idea of how irreverent attitudes to the Crown’s Treaty settlement policies have become, then imagine an impertinent city banker who is suddenly given the task of running a dairy farm in Motueka. James Wheeler contemplates the thought. The statement is a bit of tongue in cheek, “but I challenge John Key when he say’s he’s impatient about settling claims – because that potentially sets the scene for government to interfere with the process.”
Wheeler is the Chairman of Te Kähui Ngahuru Trust that was denied urgency by the Tribunal to have its claim heard by the Waitangi Tribunal. He say’s the Trust has spent considerable funds in professional fees and court processes that have delivered little, not even the right to have their issues tabled to the tribunal. And now, the Crown Rental Forestry Trust is refusing to pay their costs as it does for other claimant groups.
You might say that he has at best a cause for concern, and at worst, a case that may be thrown onto the scrap heap of unresolved grievances. Over the past 12 months that pile of inconvenient paperwork has grown significantly, due in no small part to the fact that the Waitangi Tribunal has refused to grant urgency to 14 different claimant groups. That’s unprecedented in its history.
Traditional mainstream criticism of the tribunal’s work has focused on the time it takes to investigate historic land claims and compile reports, accusations that it is a gravy train for lawyers and concerns that it’s an advocacy organisation. Now questions are being raised across the political divide from Mäori about whether Tribunal or staff are pandering to the interests of the Crown.
“Many of us are getting worn down by a powerful Crown machine that wishes to pick whom it deals with, cut backroom arrangements which have no teeth and very rarely restore häpu their rights,” says Wheeler.
When asked how he feels about members of the tribunal attending regular meetings with the Office of Treaty Settlements (OTS) and the Crown Law Office, agencies who represent the government’s interests in settlement negotiations, he looks bemused.
“It seems a little unusual, seeing that the tribunal should be separated from political influence. If they are seen doing that, it can be construed that they are not acting independently,” says Wheeler.
Adding to the milieu of disenchanted claimants and widespread disquiet about National’s Treaty settlement process is a United Nations Human Rights Committee finding that Te Kähui Ngahuru Trust should have its Treaty of Waitangi claim recognised. That’s got some of the tribunal’s staunchest advocates raising eyebrows.
“I think the UN report sends a signal to the international community that all is not well in the South and that there’s a problem going down in that part of the country,” says Sir Edward Taihakurei Durie.
As more claimants are denied urgency, the tribunal is getting criticism from the top of the South Island to the top of the North Island. With some saying it is no longer an impartial watchdog of government policy or a forum for the people, it’s relevance is also being questioned by the claimants who see no alternative but to appeal to the international community for support. The question is now whether the tribunal will continue to head toward a spiralling cascade of disapproval or succumb to an inevitable, albeit rapaciously debated era of transformation.
Sir Edward offers his own sobering view on the tribunal’s current modus operandi and why it may not be in the best interest of the tribunal going into the future.
“There is the tendency today to focus on management as a way of resolving issues. But the answer is not to say to people, ‘Well, you’re only holding up the settlement therefore we can’t hear your case.’ That’s an administrative decision, that’s not a proper judiciary process.”
The former Chief of the Waitangi Tribunal is quick to point out that the context in which the tribunal currently operates is completely different from the one that he presided over in the 1980s and early 1990s. He says he recognises that the tribunal is under immense pressure to resolve claims efficiently, but that the tribunal is risking its credibility if it continues to manage claimants instead of dealing with the issues.
“The function of this tribunal is to hear the Mäori people. The stakeholder in all of this is the Mäori people. You consult with Mäori, not with the government and not with the Office of Treaty Settlements on the process.”
Sir Edward, who also served on the High Court, believes it is time to review the commission of inquiry in light of growing concerns being aired by Mäori communities nationwide.
“My concern is not to destroy the tribunal. It’s quite the opposite.
It’s to strengthen it and get it back on target.”
The “Durie Review” – as some have come to dub it – is inspired by a paper delivered by Sir Edward at a University of Victoria sponsored law conference. The paper highlights three areas of focus for a review: policy, process and most importantly, people. He is forthright in his views that the tribunal has been captured by legalistic processes, and is concerned that there is no willingness to deal with affected claimant groups through their own Iwi institutions.
He writes, “Tribunal processes are instructive because they show how easily the principle of rangatiratanga can be overlooked even by the body that was probably responsible for popularising the term.”
Sir Edward, who became a Distinguished Champion of the New Zealand Order of Merit last year, points out that there is something wrong when there’s a diminished cultural element in the structuring of claims. He is forthright in his views that there are clear indications that the tribunal is not following the principles laid out under the Treaty of Waitangi Act.
“When I look at these applications that come in for urgent hearings and the huge amount of paperwork that is involved to get them to meet the tribunal’s criteria, I think, ‘This is a bureaucracy rather than a tribunal. It would take you far less time to just address the issue’.”
He says he is concerned that it’s almost as if the tribunal now sees the people as the enemy.
“It was set up so that the people could have their customary issues and interests heard. The tribunal can reject those arguments, but it has to hear the people.”
As Mäori enter a critical phase where tribal institutions are expected to play a larger role, there will likely be a number of whänau and hapü with genuine concerns that have not been addressed by the settlement process who will be left with no recourse but to deal directly with Iwi institutions. Sir Edward believes that the tribunal could provide a pivotal role in conflict mediation by working with tribes to develop a Mäori jurisprudence that is capable of meeting the needs of diverse interest groups within a post-settlement environment.
He says that although a Treaty jurisprudence has emerged over the past two decades due to the work of the tribunal, treaty rights are still vulnerable to political change.
“There’s only the tribunal that Mäori have to go to and once all these treaty claims are settled then the real business starts on contemporary claims. They’re the key ones so it is very important that the Tribunal gets its act together.”
In part two of this story KOHA considers whether the tribunal has the right stuff to promote Mäori economic interests and whether it should be written into New Zealand’s constitution as a protected body.
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