October 2018 Māori Law Review
1 October 2018
Meredith Clement outlines developments in the Waitangi Tribunal's proposed procedure to inquire into remaining historical claims.
Download Memorandum Directions of the Presiding Officer (311 KB PDF) (When available)
Download Memorandum of the Chairperson Appointing a Standing Panel (108 KB PDF)
Download Appendix A: Map of the included inquiry districts (426 KB PDF)
In 2015 the Chairperson of the Tribunal, Chief Judge W W Isaac, issued a memorandum to inform all claimants and the Crown of a new Waitangi Tribunal programme to inquire into remaining claims raising historical grievances. More information on the original memorandum is at (2016) February Maori Law Review.
Since issuing the original memorandum, work was done to determine which claims remain eligible for inquiry. In doing so the Tribunal has decided it is not practical to produce a national list of eligible claims as was originally hoped. The Tribunal has also decided that the proposed two standing panels will be unable to run in parallel due to a lack of resources. Instead, a pathway system will be adopted which is still intended to contribute to the overall goal of completing historical inquiries as rapidly as possible.
The alternative process
The new and revised approach will have three main aspects. The first, an initial interlocutory proceeding, will be done by a standing panel of the Tribunal. This first part of the process will involve:
- Consultation over eligibility of the claim for inquiry;
- Establishing the claimant's wish to participate in the process;
- What grievances they are proposing to bring before the Tribunal;
- Their readiness to proceed.
Secondly; the standing panel will consider which claims best fit the Tribunal's proposed fast track process. These will be districts where there is a sufficient nexus between the evidential resources of previous district inquiries and remaining historical claims for that district.
Thirdly; districts will be grouped into regions which will then be assigned to a standing panel. Regions will aspire to include adjacent districts to utilise the benefit of shared histories.
A number of districts in which the standing panel will consider claims have been identified
- Te Whanganui a Tara/Wellington;
- Te Tau Ihu/Northern South Island;
- Southern South Island; and
- Rekohu/Chatham islands.
Eligibility decisions have not yet been made. Not all claims relating to these districts will be eligible for inquiry.
Where claims from one of these districts extend into an adjacent district not on the list, those grievances may still be included so far as the claim mainly falls within a listed district.
The Tribunal has decided that the scope of the panel's inquiry will be limited to historical claims. This distinction is not required under the Treaty of Waitangi Act 1975, although historical claims are defined and existing legislated settlements of other claims are for events occurring before 21 September 1992. For claims where the historical grievance extends to or beyond this date and therefore raises some contemporary matters, the panel will have discretion as to whether to include the contemporary aspects of the claims made.
The process will not apply to the following categories of claims:
- Where a claim has been settled by legislation and therefore removed from the Tribunal's jurisdiction;
- Where the claim is included in the mandate of a group which has agreed to negotiate with the Crown in a settlement for their historical Treaty claims;
- Where the claim has been heard in previous inquiries and the Tribunal has completed its reporting;
- Where the claim is currently being heard as part of a Tribunal inquiry;
Apart from the Chairperson appointing himself Presiding Officer of the first standing inquiry panel, panel members have not yet been appointed to the standing panel proposed.
Here is a diagram setting out eligibility for the proposed fast-track process and the standard process: