From the late 1980s the Waitangi Tribunal grew to become one of the country’s most prominent public institutions. With a higher profile came greater public scrutiny and an increased workload.
Treaty of Waitangi (State Enterprises) Act 1988
The Waitangi Tribunal’s powers and resources were further extended in response to the State-owned Enterprises Act 1986. That act raised the possibility that Crown land subject to treaty claims could pass out of Crown ownership and therefore become unavailable for treaty settlements.
In 1987 the New Zealand Māori Council took a case to the Court of Appeal challenging the act. In a landmark decision in what became known as the Lands case, the court ruled in favour of the council. It characterised the treaty relationship as a partnership and identified a set of underlying treaty principles that the government needed to consider before transferring assets to state-owned enterprises. This decision would go on to inform later judgements and Waitangi Tribunal findings.
The Court of Appeal’s finding resulted in the Treaty of Waitangi (State Enterprises) Act 1988. Under this act, the tribunal could make binding recommendations and direct the government to transfer certain state-owned-enterprise assets to iwi as part of claim settlements. The act also provided the tribunal with a director, Wira Gardiner (Ngāti Awa, Ngāti Pikiao, Whakatōhea and Te Whānau-ā-Apanui) being the first. The Waitangi Tribunal had become a prominent public institution.
Criticism of the tribunal
The high public profile of the tribunal and its work generated a backlash. Some people felt that historic grievances were best forgotten. The tribunal’s work was said to be diverting attention from the real problems of Māori. The National Party’s spokesperson on Māori affairs, Winston Peters (Ngāti Wai), said it should be downgraded to a research unit that would report to government on the historical facts. Peters also warned that the growing powers of the tribunal were overriding constitutional norms. In the late 1980s the tribunal’s chair, Judge Eddie Durie (Rangitāne, Ngāti Kauwhata, Ngāti Raukawa), received so many abusive telephone calls that he made his number confidential.
Māori claimants were concerned about the time that it took to resolve claims, and that the investigation into a claim could favour those taking part and overlook the rights and claims of other iwi and hapū in the area. Often tribunal investigations pitted one iwi or hapū or group against others and had the potential to create divisions among and between different claimant groups.
Fiscal envelope
Many critics of the tribunal were especially concerned about the possible cost of settling treaty claims. Some thought the eventual cost of these settlements might cripple the economy. In 1994 the government introduced a new policy on claims settlement known as the ‘fiscal envelope’. This proposed that claims would be settled without the transfer of state-owned natural resources or land forming part of the conservation estate, and set a maximum sum of $1 billion to cover all past and future historical treaty claims. The fiscal envelope was strongly opposed by Māori nationally on the grounds of inadequate consultation and denial of natural justice, and it was dropped.
Claim backlog
By 1993 there was a backlog of several hundred claims waiting to be heard. Even supporters of the Waitangi Tribunal acknowledged that it was falling seriously behind in its work. With the aim of streamlining research into these claims, the tribunal undertook the Rangahaua Whanui (researching broadly) project, a series of general research reports on the main historical treaty grievances in each district, and on nationally important issues. However, this project did not significantly reduce the tribunal’s workload. In 1995 its director, Buddy Mikaere (Ngāti Pūkenga, Ngāi Te Rangi), resigned, expressing frustration at the lack of resources available to him and his staff.
District inquiries
In 1996 the tribunal launched a new system for hearing claims. All the claims in a district were researched together and the research was compiled into a casebook. The combined claims were then heard by a tribunal panel which released its findings in a single large report covering that district. The first tribunal inquiry under this system was for the Mōhaka ki Ahuriri district in Hawke’s Bay.
Direct negotiation
The tribunal is not responsible for settling claims between Māori and the Crown, only for investigating whether the claims have merit. To advance the negotiation of treaty settlements, in 1989 the government set up a policy unit within the Department of Justice to examine treaty settlement issues. In 1995 this became the Office of Treaty Settlements. Claimants could choose to either have their claims heard in full by the Waitangi Tribunal before negotiating with the Crown or proceed directly to negotiation and settlement.
The Office of Treaty Settlements was replaced by a new agency, Te Arawhiti, the Office of Māori Crown Relations, in 2018. This brought together public servants working on treaty settlements with those responsible for ensuring that commitments made by the Crown to Māori were upheld for the first time.
Landmark claims and reports
Muriwhenua Fishing (1988): The claim by the iwi of the Muriwhenua region in the Far North included their traditional fishing rights. Before it was fully heard, the Ministry of Agriculture and Fisheries began issuing commercial fishing quotas. An urgent Waitangi Tribunal hearing determined that this process was contrary to the principles of the treaty and that the Crown should negotiate with the Muriwhenua tribes before issuing further quotas. Subsequent High Court action halted quota allocation throughout the country.
Ngāi Tahu (1991): The Ngāi Tahu treaty claims addressed land transactions between 1844 and 1864 that resulted in the iwi losing most of its South Island land. The tribunal released a report in 1991 recommending substantial compensation. In 1998 Ngāi Tahu agreed to compensation valued at $170 million, including ownership of pounamu , rights to sites of significance including Aoraki/Mt Cook, a role in managing conservation estate resources and restoration of some original place names.
Fisheries Settlement (1992): This report led to a settlement – known as the ‘Sealord’ deal – that gave iwi throughout New Zealand assets equivalent to 20% of total commercial fishing rights, as well as 50% of seafood company Sealord Fisheries, further shares in fishing companies and $18 million. This was the first treaty settlement to affect all iwi.
Taranaki (1996): This report set out the historical background to the claims of Taranaki Māori and outlined the massive land loss they had suffered. It was the first to examine in detail the raupatu that took place following the New Zealand wars. The tribunal estimated the total area of land wrongfully taken through confiscation and other means at nearly 2 million acres. It also investigated events at Parihaka, stating that the invasion and sacking ‘must rank with the most heinous action of any government, in any country, in the last century.’1 The report was also significant for its commentary on indigenous autonomy, with the tribunal considering that the prosperity of Parihaka was proof that Māori self-government was beneficial for both Māori and the country.
Whanganui River (1999): This report found that Te Ātihaunui-a-Pāpārangi had possessed and controlled the river and its tributaries for hundreds of years and had never knowingly or willingly relinquished their treaty rights over it. The report recommended that the authority and ownership rights of Te Ātihaunui-a-Pāpārangi in the river should be recognised in legislation. In 2017 the river was granted the same status as a legal person. Similar arrangements were subsequently made for Te Urewera and Taranaki maunga as part of redress for treaty breaches.