E oho! A short history of the Waitangi Tribunal — Where to from here?

Walker andSpeakers

Tom Mason, Tanja Schubert-McArthur, Claudia Orange, Colin James, Damien Stone

Mihi whakatau

Tom Mason: Tēnā koutou. E aku nui e aku rahi kei ngā pū taniwha o te ture, tēnā koutou katoa. Tēnā koutou kua tōia mai ō waka taua ki ngā wai karekare o Te Whanganui-a-Tara kia tatū mai ai ki te take o te maunga o Ahumairangi kei muri nei, ko te awa e rere nei, ko Kumutoto. Te Ātiawa tēnā koutou. Tēnā tātou. Tēnā koutou katoa kua tai tahi mai i raro i te tuanui o tēnei whare, Te Puna Mātauranga tēnā koutou.

Koutou ngā pou e pupuri ana te mauri o te whare nei, ki a koutou Honiana, ki a koutou, e kui Bella, tēnā koe. Tēnā koutou, tēnā tātou. Tēnā koutou katoa kua tae ā-tinana mai ki te ata whakarongo i ngā kōrero o te tokotoru nei. Ki ngā kōrero o ngā hitoria nei, o ngā tiati, o nga kaiwhakawā. Nō reira tēnā koutou. Tēnā koutou, me mihi ka tika ki a koutou e aku rangatira, ki a koutou te tokotoru nei.

Nau mai haere mai ki te taha o te tini nei, te tini kua tae ki te whakarongo, ki te tuku patai ki a koutou. He aha ngā mahi o mua o te taraipunara, he aha ngā mahi kei mua i a koutou, kei mua i a tātou. Nō reira, tēnā koutou. E te tohu kairangi, Dame Claudia tēnā koe mō ō mahi o mua e pā ana ki tēnei mea, tō mahi hitoria mō Aotearoa nei. Ki a koe hoki Colin James. Tēnā hoki koe e te rangatira, me mihi ka tika ki a koe mō ō mahi o mua me ō mātauranga tōrangapū o mua. Nō reira, tēnā koe. E te kaiwhakawā, e te pou tiati Damien tēnā koe, Kahungunu tēnā koe. Koutou ngā paepae korero, te tokotoru nei tēnā koutou, nā mātou te hōnore kia haramai ki te whakarongo ki ngā kōrero ka puta mai, ngā kōrero o te taraipiunara. No reira tēnā koutou, tēnā koutou. Otirā ki a tatou, tēnā tatou katoa.

Waiata

Kōkiri, kōkiri, kōkiri
Whakarongo ake au Ki ngā reo o te motu
E karanga mai ana Huakina Huakina te whare e
Ka oti ka oti ngā mahi e
Haere mai e te iwi kia piri tāua kia kite atu ai
Ngā kupu whakairi e
Ēnei ngā wāriu O ngā mahi tuhinga Hei mahi ketuketu
Ngā whakaaro rerekē Ko hanga whakatū
Ngā ariā ki te iwi
E kore e mimiti
He puna wairua e He puna wairua e

Welcome and introduction to speakers

Tanja Schubert-McArthur: Thank you to Tom Mason and the waiata group for this warm welcome. Nau mai, haere mai ki Te Puna Matauranga o Aotearoa. Welcome to the National Library, and welcome to the E oho! Waitangi series 2021. My name is Dr Tania Schubert-McArthur, I'm a learning facilitator here at the National Library, and I'm also the organiser of the E oho! series. So with the E oho! series we aim to lay the foundation for all people living in Aotearoa, by exploring key events in history that shaped the nation we call home.

Each month we put together events that relate to our founding documents, He Whakaputanga and Te Tiriti, which are housed upstairs in the document room, and we want to provide a safe space for robust discussions. Next month on 16th of June, we will have Warren Fraser from Te Arawhiti talk to us about a short history of Te Arawhiti, the office for Māori-Crown relations. But today we're talking about the Waitangi Tribunal.

As someone who has worked for the Waitangi Tribunal this topic is very close to my heart. Attending hearings and listening to the Māori claimant has been an eye opener for me, just how severely Maori communities are affected by breaches of the Treaty and how much hurt there still is. I often wished that more Pākehā New Zealanders would have come to the hearings and engage with the Waitangi Tribunal process.

So today hopefully is a chance to get a better insight into the Waitangi Tribunal, its past, present and future. A short history, where to from here. Today's presentation is structured into three separate little talks, and then a panel discussion, and at 1 o'clock we'll make a short closing karakia, please stay for that, then you're free to leave or you can stay on for more discussions until about 1:30.

It's my great pleasure to introduce our three distinguished speakers to you so I'll do that at the start. We have Claudia Orange, judge Damien Stone, and Colin James. Dame Claudia Orange probably doesn't need much introduction, but she's an honorary research fellow at Te Papa, she has published widely on New Zealand history, race relations, and Treaty of Waitangi. In 2009 she was awarded the honour of distinguished companion of the New Zealand order of merit. Please, give a warm round of applause to Claudia.

[APPLAUSE]

We have Colin James, who was a political journalist from 1969 to 2019, he's a life member of the Parliamentary Press Gallery and the E Tū Union, he's published eight books and has an honorary doctorate from Victoria University, welcome Colin.

[APPLAUSE]

Last but not least, we have Judge Damien Stone, Ngāti Kahungunu, he's a member of the Waitangi tribunal, he was appointed to the Maori land court in 2019 and it's based in Wellington. He's the resident judge for Wellington and Thames, but also provide support for hearings around the country, please welcome Damien.

[APPLAUSE]

So I'll hand over to Claudia now, enjoyed the talk.

The emergence of the Waitangi Tribunal

Claudia Orange: Kia ora tātou katoa. When it says a short history of the Tribunal I decided that basically we can't make assumptions that people do know where it came from, and so I'm starting a fair way back. In fact, I'm starting with the Rātana movement itself, 1920s as some of you will know it was established as a movement by its leader Tahupōtiki Wiremu Rātana and it had a range of followers very quickly. It moved into politics in the 1920s, and the movement's main aim was to have the Treaty ratified as they said, as a part of the lore of the land.

If it was built into legislation then the Treaty would have to be recognised by the government and the courts. Rātana and I took an appeal to England in 1924 basing the right to appeal to the monarch on the Treaty, and ask for a Royal Commission to look into grievances, and like other appeals it was referred back to the New Zealand government of course. The 1920s a liaison with the Labour Party started to emerge and fact some of the Labour people used to go to Rātana Pā, and there was a lot of discussion going on.

They were pretty hungry for Māori votes and this led to a promise by Labour to action when it became the government, it would set up such a commission to investigate land claims arising out of and subsequent to the Treaty of Waitangi, and also establish a Māori council. When the first Rātana politician, Eruera Tirikatene entered parliament in 1932, the first step was taken towards a formal alliance with between Labour and Rātana and of course, it was confirmed in 1935 when Labour did become the first government, and that alliance would last for over half a century.

It ensured that the Treaty of course would become more prominent in the central political stage than ever before. From the 1943 election all four Māori seats were held by Rātana members pledged to promote the Treaty. This success meant that appeals over Treaty rights would continue and would be made at national level. It ensured that the Treaty would become a more important part of the political scene than it had been for many years.

Rātana members worked hard to implement the Treaty promises on the Treaty for a long time with very little result, but for 30 to 40 years they kept alive the objective of building the Treaty into law. In 1960 it started in a sense when Waitangi Day became a recognised date in the calendar to commemorate the Treaty. And then in 1973 legislation, it became finally a national holiday. I think it was called New Zealand Day then, with some of you will remember 1976 it changed back to Waitangi Day.

I think it was Pat Hohepa, was pretty grumpy about it being not called Waitangi Day. It's turned then quite quickly to Matiu Rata, MP for Northern Māori in 1963 to 1980 and Minister for Māori Affairs 1972 to 75, third Labour government. He'd hoped for a Waitangi Day, but he'd also hoped for a commission of inquiry into issues arising out of Māori understanding of the Treaty and government's failure-- governments many, many governments failures to address issues affecting Māori.

He aimed to bring in legislation, which he did. 1975, the third Labour government passed the Treaty of Waitangi Act. Its third reading, many of you will remember perhaps, in October 1975. To emphasise its significance, a Land march was organised and led by Te Rarawa leader, Whina Cooper starting Te Hapua in the far North, and stopping at many marae through the North Island.

It was timed very well to arrive at Wellington, here, over at Parliament as the legislation was close to its final reading. The slogan, of course, again was: ‘Not one acre more!’ And the Pou Whenua that led the March was not to touch the ground. The Pou Whenua by the way, is actually in the museum at Waitangi itself. Can be taken out at any time. That's part of the agreement to have it there.

Under the Waitangi Act, a Tribunal, as you know, was set up comprising then three people. A chairman, chief judge of the Māori Land Court, and two appointees. One of whom had to be Māori. Their role was to hear Māori claims and to make recommendations, taking into account, quote, the principles of the Treaty. And for that purpose, to determine the Treaty's meaning and effect. They would draw on both Māori and English Treaty texts.

But the Waitangi Tribunal could look at only those claims that arose after the 1975 legislation and government was not obliged to accept its recommendations. The Tribunal really basically had very little, limited power indeed, which for a time, to many of us here in Wellington and elsewhere, seemed pretty much pointless. However, under the chairmanship of Chief Judge Edward Durie, the Tribunal heard and reported on several major claims. And I think Damian will probably come back to that and enlarge a bit more there.

But very briefly, 1983 claim by Te Ātiawa, the Motunui Waitara claim, related to the spoiling of fishing reefs on the Waitara foreshore by chemical discharge. 1984 claim concerned discharging wastewater into the Kaituana River. And in 1985, a claim over the Manukau harbour involved extensive fishing and usage rights.

Much history was painstakingly uncovered during the claims hearings. But the Tribunal had no powers to enforce its recommendations. Nevertheless, it was – it had gone quite a long way in determining the Treaty's meaning and effect and in defining its principles.

More power to the Tribunal when a fourth Labour government took office in mid 1984. It made a commitment to resolving Treaty claims. It gave the Treaty a higher profile in general. In 1985, the Tribunal's membership was expanded and it was enabled to investigate claims arising from events before -- from 1840. At the time, I seem to remember people saying this is going to open up the whole of New Zealand history. Alan Ward, at that time, was renting with me. And he shook his head and he said: We don't know how enormous this is going to be.

The Tribunal was provided, at the time, with a larger staff which included researchers to carry out preliminary work on each claim and identify relevant evidence. Other researchers were recruited to work for the claimants for the Crown and for other interested parties. And funding, always, had been a real issue and of course had continued to be for some decades.

Māori had long wanted the Tribunal as a forum for resolving historical grievances. But I believe probably few really realised or anticipated just how much research and time would be involved in hearing claims.

The rapid increase in the number of claims lodged added to the pressure. In May 1986 there was a backlog of less than two dozen claims. By the end of 1989, there were over 100 registered, each with an identifying Wai number. In 2002, the 1,000th claim was registered. 2006, government set a date, September 2008, beyond which no more historical claims could be lodged. The costs for the claimants as well as for the government agencies have been considerable.

Defining the principles. Very quickly, critics of the principles noted that the Waitangi Tribunal was already engaged in defining them for which it had special responsibility. A statement on Treaty principles had also emerged from the 1987 Court of Appeal case on the State-owned Enterprises Act. It was part of the duty of the court to determine the principles of the Treaty with which the Crown's actions had been inconsistent.

The principles were significant, as they were the government's statement of Crown responsibility to Māori under the Treaty. Yet the government, in a way, at times, seemed to be backing off from a position in which partnership might concede too much. It was not prepared to admit obligations to devolve broader authority to Māori. Does this sound familiar?

At the same time the principle of partnership was being well established in jurisprudence, with court cases drawing on the meaning of the Treaty as defined in the first Tribunal reports, which were particularly important. And partnership was a term that would increasingly be used across many government departments. Community groups and individuals saw it as giving contemporary meaning to the reciprocal nature of the Treaty's first and second articles.

And I think about there I should leave it. Because Damian is going to pick this up and he will be looking more at the whole modern situation with the Tribunal. But I thought it was not unimportant that we quickly looked back. So I hope that has given you something of the context with which we're going to hear Damian and then Colin. Thanks, everybody.

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The work of the Waitangi Tribunal

Damian Stone: Tēnā koutou. I te tuatahi tēnei au ka mihi ki a koe e Toma, mō tō mihi whakatau ki a mātou te tokotoru nei otirā ki a tātou katoa. Kei te tautoko au i ngā mihi kua mihia, me kī ki ngā mate kei waenganui i a tātou i tēnei wā, kotahi anō te kōrero mō rātou haere e moe.

Kāti huri noa i te whare, tēnā tātou.

Kia ora, everybody. My name is Damian. I am a judge of the Māori Land Court and I've only had that role for a two years, and I'm still getting used to people calling me by anything other than my first name. But we're going to have a question and answer session shortly. So if you have any questions of me, feel free to call me by the name that my mother gave me.

You know, I am just going to carry on from where Claudia left off. And before I start, also, I'm going to specifically mention that I can see there are some Tribunal staff members here. And there are also some members from the Chief Judges chambers, the Chief Judge of the Māori Land Court. So they'll be able to help answer questions we all may have.

And just one final statement at the outset is I would like to pass on the apologies of the Chief Judge. Unfortunately, he was double-booked for today so he couldn't come. He sent me and his stead. I won't say a poor substitute. Hopefully, I'm like one of those substitutes these days that comes off the bench for impact.

All right. Dame Claudia has talked about some of the early reports of the Tribunal. Remember this period from its establishment in 1975 to 1985 could only look at current activities, acts, or omissions of the Crown. It didn't, in those first 10 years, have any retrospective jurisdiction.

So all of these earlier reports were about issues that were presenting at the time. And Dame Claudia has spoken about them. I don't have time at all to talk about any of these. But I think the important point to note is that from the outset, the Tribunal's jurisdiction was only contemporary. It was set up to look at things that were happening at the time.

The only thing I would also add to this is that a lot of the Treaty principles that we have applied for a number of years now came out of these early reports. All right. Dame Claudia has already said in 1985 the Tribunal was given retrospective jurisdiction. Jurisdiction to look back at Crown Acts or omissions from the 6th of February 1840, from the date of the signing of the Treaty itself.

And as Dame Claudia mentioned, the number of claims filed since 1985, well, there's a number of them, over 1,000. Now one of the early decisions that the Tribunal had to make was how are we going to deal with this. And pretty early on decided we're going to try and deal with these in a coordinated fashion, which would make sense. And to do that we should try and inquire into districts.

We'll set up these districts. We'll have boundaries between districts. Effectively carve up the country into areas that we could inquire into. And like any organisation, funding is always a limit on how quickly you can move.

And so the Tribunal developed a process of going district by district. And at times, there were more than one district under inquiry, but not every district could be inquired into straight away. So there was a process to try and work out who should go first, et cetera. I think everything else on there Dame Claudia has covered.

So, what does the Tribunal do? And this is really basic. So apologies for those of you who have this understanding already. But the Tribunal examines claims by Māori, have to be Māori to make a claim to the Tribunal, Māori or a group of Māori. Claims by Māori that they have been prejudiced by legislation, or acts, or omissions-- that's an important aspect-- policies, or practices of the Crown that are inconsistent with the principles of the Treaty.

A quick comment on that. What are these principles? The Act that sets up the Tribunal doesn't say what the principles are. There's no legislative indication as to what are the principles of the Treaty. So the Tribunal has had to do that itself. And in those early reports, most of the principles we rely on today came out of those earlier reports.

And as Dame Claudia said, some of the principles have been picked up and used in our ordinary courts. I'm sure you'll all be aware of some of those late 1980s cases, the Lands case and cases of that nature, where the ordinary courts have had to grapple with what are the principles of the Treaty. And those decisions have drawn extensively from the Tribunal's articulation of those principles.

And I guess the other thing just to note in that context, as Dame Claudia was talking about what was happening in 1985. The other relevant thing I think is that at the time, State-owned Enterprises were being established. And there was the claim-- this is the Lands claim, essentially, and the Forestry claim-- that the Crown had a lot of land. And before State-owned Enterprises were set up, the Crown was essentially this one entity and the largest landowner in the country, of course.

But the State-owned Enterprises, the process was to allocate these assets to different specialist enterprises to run public services, essentially. And Māori at the time said: Hey, you can't do that because we've got claims about how you got that land in the first place. If you give it to somebody else, if you give it to a State-owned Enterprise (SOEs), for example, how do we know that lands available as redress for us if our claims are proven correct?

And so we have this process where the SOEs were allowed to be established. But a protection mechanism was agreed between the Crown and Māori negotiators of the day to enable that land to be clawed back at any time if the Tribunal said it had to be, essentially. And that is the binding power of the Tribunal. We'll come to that shortly.

The Tribunal makes findings about whether claims made to it are well-founded. Well-founded is the statutory language used in the Act. And the Tribunal investigates those claims and produces reports. Includes recommendations, it doesn't have to but pretty much always does. At least one recommendation. And all of those recommendations, except in the limited circumstances that I just spoke about, are non-binding. They're just recommendations, except if it comes to that land that was transferred out of Crown ownership as part of the SOE process. That's where the Tribunal has real teeth.

Important final point on this slide is that the Tribunal doesn't settle claims. There's going to be another presentation given in a couple of weeks from Te Arawhiti], or previously known as the Office of Treaty Settlements, about how that process works.

So what do we do at the Tribunal? We basically go through the statutory requirements to work out is this a claim that we can inquire into. As I said earlier, you're going to have to be a Māori or a group of Māori. They must relate to acts or omissions, practices, policies, legislation of the Crown. It must have a prejudicial effect. And it has to have happened since 6th of February 1840 in a manner that's inconsistent with the principles of the Treaty. So it's pretty basic and straightforward, but in application quite difficult.

So how have we done that? As I said earlier, after 1985 with the retrospective jurisdiction and the sheer volume of claims made, some process had to be determined. Tribunal decided we're going to do this by districts. So that's probably been the main work of the Tribunal since the 1990s. Not the only work, but the main work.

During that same period, the Tribunal also has jurisdiction to deal with contemporary issues just like it did from 1975. So from time to time the Tribunal has had to grapple with issues presenting in the day. For example, claims were made to the Tribunal when the Foreshore and Seabed legislation was first proposed. There are numerous applications to the Tribunal about Treaty settlements and the process is followed by the Crown. And each of those settlements with iwi.

So the Tribunal has always had this contemporary jurisdiction. It's just because of the sheer number of claims that relate to historical activities, Acts or omissions of the Crown, that the focus has for a long time been in the historical area.

We're now starting to move away from the district inquiries because they're largely completed. And I'll bring a map up about that shortly.

And we're now turning to what we're calling Kaupapa inquiries. They are thematic based inquiries about big ‘take’, and I'll come to those. But because the Treaty is always speaking, the Crown is always acting, there will always be contemporary issues arising. The Tribunal still has the power to hear those. But because it's got a long line where people are waiting to have their claims heard, if something happens now and you want to get priority, to jump the queue, you've got to make a case for urgency. So we often get urgent applications filed. It's basically, you've got to prove that you should jump the queue.

And we also have applications before the Tribunal currently about remedies. And I'll come to that. Here's a map. Hopefully you can see it clearly enough. But essentially all the blue's done. So that's quite a lot of work already having been done in terms of historical district inquiries. The, a bit up the north there in blue and magenta, or whatever it comes up on the screen, that's the Northland inquiry. It's still underway. Te Paparahi o Te Raki.

Stage one has reported. Stage two is in report-writing stage, I understand. That's an interesting stage one report because it indicates that the iwi and hapu of the North did not cede sovereignty in signing the Treaty. Let's see how that plays out.

You'll see some there's also Porirua ki Manawatu and Taihape still in inquiry. Otherwise the blank areas where there's no colours, they are areas where the Tribunal hasn't done a district inquiry. But the claims have been settled nonetheless -- by going straight to direct negotiation with the Crown through the Office of Treaty settlement, Te Arawhiti.

So a lot of work has been done on the district inquiries. We're nearing the end. These are our thematic Kaupapa inquiries. We'll just skip through to the next slide to show that at the moment we've got 13 themes that we're either inquiring into or we're intending to inquire into. Those first inquiries in green are the ones that are underway, in earnest. Yeah, in fact hearings have been held in all of those.

But you'll see from the take, the Kaupapa, the subjects, we're looking at health. We're looking at mana wahine. We're looking at housing. We're looking at takutai moana. And the recent decision of Justice Churchman about the Foreshore and Seabed Act is quite relevant to that. We're looking at military veterans. Massive take, particularly health and housing and mana wahine.

We're still yet to start our inquiries in earnest in terms of the constitution, self-governance, and the electoral system. That will be massive. The justice system. Education. So you can see from these themes that we've got a bit of work to do. They are major take in and of themselves. And just to go through the remainder. Social services and social development. Economic development. Identity and culture. Natural resources and the environment and environmental management. Citizenship rights and equality. They're all topical and important.

Just quickly on the urgency applications. As I said, we're still receiving those. We can receive those at any time. And you have to prove that you need to jump the queue. We have some criteria that we apply to determine whether you justify jumping the queue. You've got to have significant and irreversible prejudice as a result of what's happening now. There's no alternative remedy for you. And can you quickly go to hearing. Those are just some of the criteria. They're not all of them, I should say. We have some guidelines about what you need to satisfy there.

Remedies. This is where the Tribunal has that binding power. Should say that it's only ever been used once and never became a final recommendation. So effectively, it's not been done. The Tribunal has tried to do it on more than one occasion. But whenever it's attempted to do it, it's being referred to the ordinary courts under judicial review.

And in fact Justice Cooke, a couple of weeks ago you might have seen in the newspapers, issued a decision about the remedies. Preliminary determination by the Tribunal in respect of the Wairarapa claimants, indicating that the Tribunal got it wrong. In fact, the Tribunal failed to apply tikanga properly and itself breached the principles of the Treaty in summary. So quite an interesting decision. I encourage you to read it. It's been appealed. And I think Justice Cooke even says in his decision that he expects the issue to go all the way to the Supreme Court.

But it is an illustration of this binding power not having been used despite the Tribunal's clear intentions to try and use it. Because of claimants come to the Tribunal and ask the Tribunal to exercise their power, the courts have already said :Tribunal has got to exercise the power or just make a decision about it at least. So watch the space.

OK. That's all I was going to quickly talk about the Tribunal. It's really just a snapshot of where we're at with a little bit about what we've done. And I'll hand it over to Colin who will tell us all what we need to do.

[APPLAUSE]

Challenges for the Waitangi Tribunal in the future

Colin James: That's a bit grand, Damian. Kia ora tatou. We've just heard from two experts and I am not an expert. But Ranginui Walkerand Pat Hohepa introduced me to the Treaty in the early 1970s. And since then the Treaty and its practitioners, advocates, critics, analysts have been significant in my stuttering struggle as a journalist to track the evolution of this nation and its politics. But I don't claim to know fully the Treaty or the Tribunal.

My simple view is that the Treaty, if the Treaty is to be an enduring force, it must contribute to building a nation. It must bind, not divide. A nation is imagined and constructed in two main ways. One is a congregation of people. A folk with shared ancestry, history, myths, customs, practices. The other is a gathering of peoples who have woven a story that binds them. And iwi and Aotearoa before 1840 was the first sort of nation.

New Zealand for a century and a quarter after 1840 thought itself of that ilk as an extension of the by then Celtic, Anglo-Celtic, congregation of Britain into which Māori were subsumed as brown Pākehā, or honorary whites. Or as the late Duke of Edinburgh put it in after the royal visit in the summer of 1953-54, ‘household pets’. Throughout the past half century Aotearoa New Zealand, has been attempting to weave a nation story. Two peoples with two cultural heritage, which must somehow fit in the same space.

Some people are impatient to get farther down this bicultural path. Others want to slow or sidestep or reverse a step or two. Some want back to 1839. Neo-traditionalist Māori want Māori sovereignty. And tell Māori governing our culture. Neoclassical liberals want one law for all, individualism. My simple view is that both neo-traditionalists and neoclassical liberals will be eclipsed by growing acceptance by most of us that our developing national story is Dame Anne Salmond’s we two peoples together make a nation.

There is value to both peoples. Technology-hungry Māori in the 1820s gained from post-enlightenment science. Planet loss fearful non-Māori now gain from the values of the te ao Māori animist union of people and nature. To be bicultural is not to inhabit separate realms and somehow agree to agree. It is to weave an enveloping korowai with muku from each realm. The weaving of a bicultural nation will need many more years, maybe decades, of mahi in which the Treaty and its guardian the Tribunal will be critical.

The Tribunal's role through its near 50 years has been to contribute, through its inquiries and pronouncements, to the redress for Māori for government's flouting of Treaty principles through historical actions and lack of action and in new policy and current practice, as we've heard. And it's included reinforcing the two-culture state of the nation, restoration to iwi, hapū and whanau of mana and taonga. And an asset base on which to build for a future for their members in the modern economy and society.

Well, if too many are left thinking the Treaty applies to and the Tribunal works for Māori only, there could at some point be a destructive populist reaction. And to finesse that risk, the Treaty and its guardian, the Tribunal, must be self-evidently for all of us. The purpose of any Treaty, after all, is to bind not divide. So we must see the Treaty not just as a founding document, as a founding document, but as the foundational compact for our nation, Aotearoa New Zealand, binding all members of our nation.

For that to work Article III must be read as conferring full citizenship on all members of Aotearoa and New Zealand. Citizen is how subject in Article III in 1840 would be rendered in a modern Treaty. It would, in effect, establish a commonality of all citizens distinct as each citizen is. That is a commons belonging to all and of which all are a part.

Full citizenship is not just equality before the law as the classical liberals would have it. It is the capacity to make the best of oneself, for oneself, and for one's family or for whanau, and for the well-being of society. And in turn, ensuring each member of our society can be a full citizen is a duty of all citizens collectively and individually. That reciprocal duty of all citizens to all citizens includes respect for the cultural heritage, knowledge, and tikanga customs of all other citizens whether from Polynesia Europe, Asia, Africa, or the Americas.

That is because without a strong sense of one's cultural heritage, where one comes from, one cannot make the best of oneself and be a full citizen. To make the best of oneself, one also needs a nutritious, cared for, rounded, enabling upbringing that gives one confidence. In part as a consequence of colonization, the suppression of Māori culture, and the submission in a better Britain of the time up to around 1975, Māori disproportionately lack one or both of those ingredients of self-knowledge and aspiration.

And critical to all of the above is true justice. And true justice requires strong support for each citizen from birth-- family, community, schools, health care, societal inclusion, a living income. For Māori, provision of that support can be, and in some cases must be, through Article II, devolution to mechanisms and entities operated by iwi, hapū and whanau. Or to lawfully established, governed, and accountable Māori trusts, urban Māori authorities, and pan-iwi authorities.

The good news for non-Māori in that is that as more Māori and others become full citizens our society will become stronger and more cohesive. And everyone benefits from a strong, cohesive society. And the good news for non-Māori also is that as Māori develop article II mechanisms, wider society might learn from them. For example, how whanau works, it demonstrates that a true family whanau has many tentacles. It is a network not a unit.

How are devolved activities to be monitored, managed, and made accountable? By iwi hapū and whanau; by public servants and their part-time overseers, the politicians; and by the Tribunal as guardian of that Treaty for all of us. The public servants will need a lot of help as we go into the next phase of the Treaty. Do culturally insecure, mid-level public servants, as one senior minister worries, roll over too readily when challenged on Māori issues.

Alternatively, if there is a populist attack on too-ready roll over, might those same insecure, mid-level, public servants hit the brakes too readily? At worst, might a populist government rip up the Treaty? The Tribunal has a large role to play in keeping us all on our bicultural journey. The Tribunal is, or must be, a forum for building the narrative of the two peoples nation as the foundation for a multi-ethnic society. A safe place to go for guidance on how to fit into and advance that narrative.

As increasingly the Tribunal focuses on issues such as constitution, identity, natural resources, justice, and much else, as Damian has detailed-- on the quality of which work, I might say, Chris Finlayson in his upcoming work is sharply critical-- will it be convincingly constructive as nation building. There can be no post-settlement era, Ihumatao and He Puapua have demonstrated that the Treaty cannot be settled. If the Treaty could be settled finally and fully, it would wither and the bicultural narrative of our nation in the making would fade.

That says to us that the Treaty must periodically be revisited. It is long past time, I think, for a restatement of the 30-year-old principles. Well, I won't be around in 2040. But the Tribunal may well still need to be to ensure the Treaty is for all in a bicultural based, multicultural, multi-ethnic homeland with a strong story. That is the challenge for Judge Stone and his colleagues.

Panel discussion

Claudia Orange: A panel discussion is always pretty tricky. I have a suspicion that there will be questions out there in the audience that you'll want to put. So perhaps the way to start is for somebody to fire something fast at us. Maybe specifically to one or other of the three of us or generally. So over to the people in the audience.

Audience member: I do have one. I'm not sure if I'm in the right context. [INAUDIBLE] As a Māori, I was focused on-- can you hear me?

Yes.

Audience question 1: Tēnā koe. As a Māori I was focused on funding equity. Many of my Māori people go to Māori Land Court. They take their whakapapa, the information, and it costs them quite a lot of money. And the question is within the whanau how can you get money out for expenses for an attorney or is there such a thing in the process within the Māori Land Court?

Judge Damian Stone: Kia ora, tēnā koe, e kui. Well this is a presentation on the Waitangi Tribunal. But I am a Māori Land Court judge, so I guess I have to answer this question. Look, I think I'd bring it back to funding being an issue generally. And then bring it back to the Tribunal.

One of the issues that we are facing at the Tribunal, particularly for these Kaupapa inquiries, is how do Māori engage, get funding to engage, in those things? The historical claims process, sort of well known. The funding streams are set. We have the legal services agency, for example, funding lawyers and things like that. It's been a bit of an issue about how that all plays out in the Kaupapa inquiries.

Now I should say that I've not yet set on a Kaupapa inquiry. I have been recently appointed to the Health inquiry and replacement of Judge Clark, who was the previous judge on that inquiry. So I'm not fully aware of the actual issues on funding, but I know that they are funding is an issue. And the Māori Land Court's the same thing. I can come and talk to you afterwards about how you might be able to get funding there.

Dame Claudia Orange: Shall I pick that up very quickly. Inside information is that I think of Te Arawhiti as working on funding for the Kaupapa inquiries. And I was really astonished when I realized that. So, I mean, there's no certainty to this but let's just hope. Because that's impossible if you have a Kaupapa inquiry, the cost of coming from wherever in the country is considerable and you don't always have that kind of money.

Audience question 2: But the thing was when they got there, they were asking for that and I mean it wasn't really whakapapa and that was their priority that they ask. Which Maori are reluctant sometimes to provide.

Claudia Orange: Absolutely. Right up the back.

Audience question 3: Do claimants still receive funding through the Crown Forestry?

Damian Stone: Yeah, I'm sure they do. Yeah, it's running down. And because the district inquiries are nearing the end and settlements have already occurred in respect of some of those, I would even say maybe even the majority of those forests, that the funding is diminishing. But yes, it's still available.

Audience question 4: The question Damian then is at some point there may need to be more funding from some other source. I think that's behind the question.

Damian Stone: Yes. I think as Dame Claudia said, in the context of the Kaupapa inquiries that the process is underway to try and fix that. But because the Tribunal has always, well, it exists, the Crown, as I said earlier always acts or omits to act. There will always be the prospect of the Tribunal having to inquire into something new. The funding of those claims is an issue.

Claudia Orange: Any other questions up there? With that Kaupapa inquiry and the funding, keep it in mind if you're coming to the next session on Te Arawhiti and put it to the person that we'll be talking there.

Damian Stone: I'm looking at Francis for the answer to this. But I think that's just a list. I don't think there's been any forward determination of which ones are next. Francis, have we've done that?

[LAUGHTER]

Francis Cooke: That is, I believe, a rough prioritization. Although Māori do have the ability to [INAUDIBLE].

Colin James: Claudia, , you're the expert, are you. Is the requisite expertise there in the Tribunal to deal with these very complex claims? I mean, the Constitution it's not a small topic, frankly. And nor are some of the others that are on that list. From your observation over a long time on the Tribunal, does it have the requisite expertise to do that?

Claudia Orange: I sort of perceived that Colin's a little bit worried about this. If this is constitutional issues, yes. I mean, we had that constitutional review. It started, announced 2010. 2013 the government got a report. Matiki Mai, 250 hui, met and produced a report in 2016. And so other things have sort of been overtaken and now suddenly we have the United Nations declaration on the Rights of Indigenous people and the He Puapua come out.

And you can't look at the United Nations declaration without in getting involved with the Treaty. So yes, , I mean we have a long way to go I think is the easy answer. And it will be interesting to see how the government is going to handle this or governments are going to handle it over a period of time. And yes, we do need a lot of input in this. We need the Ken Keiths of this nation and others in the law area and jurists et cetera, too.

Damian Stone: Yeah. Just to add to that, I think if we look at the district inquiries, for example, the basic, usual, make up would be to have an historian; a presiding officer, who has to be a judge of the Māori land court or lawyer; a historian, because of history, district inquiries; someone who is familiar with tikanga, kaumatua, kuia, someone to assist the panel in those matters; and then usually someone who has expertise in Crown policy and procedure, normally a public servant. That would be a sort of standard make up of a district inquiry.

These Kaupapa inquiries are going to be quite different. I think you're still going to need, and probably more so, their understanding of the Crown policy procedure. These sort of ex-public-servant-type person who knows how the machinery of government works. Maybe not so much an historian, although there probably will be aspects of history in some of these Kaupapa inquiries. Be jurisdictional question about how far you can take that. Definitely a legal person. So you'll still need the presiding officer.

And then I think probably a subject matter expert. And I think everybody understands that. The minister appoints members to the Tribunal. We have a couple of vacancies in the process of being filled. And I'm confident, I'm sure the minister will make sure that those new appointments are such to look forward to what sort of expertise is going to be required, particularly for those Kaupapa inquiries.

Colin James: We've also now got a resurgence, or re-emergence, of the arguments from the 1970s of decolonisation and Māori sovereignty. And these are really big issues. And where can the Tribunal settle on that? Can it settle? Can it settle in such a way that it becomes, my argument, that it's the guardian of the Treaty in a way that, by and large, the majority of New Zealanders will come to see as appropriate?

Damian Stone: You know, I mean, I'm not sure the Tribunal looks at its role as trying to find a middle ground or what's going to be acceptable or populist to most people. I think it goes about its task by undertaking its function, assessing Crown acts or omissions against the principles of the Treaty. Some of the answers might not be politically palatable. Some of those answers might not be acceptable to the large majority of people in Aotearoa. Who knows? That's not going to stop the Tribunal from making those--

Colin James: But it isn't this the history of the Tribunal? You do something and a lot of people don't like it. But 10 years on, people say: oh, yeah, it works. So if you just keep, can't you take us over the next 20 years to a position where something much nearer co-governance operates?

Damian Stone: No problems. Let's do that. [LAUGHTER] I think that's one of the beauties of having principles and having to apply principles. Is that as long as you stay principled, even if it's not popular at the day, it will eventually, hopefully, become-- people will see the light.

Colin James: So far, so far by and large that's happened. And it's pretty remarkable, isn't it? Don't you agree?

Claudia Orange: And I think I'm still an optimist. When you think of the amount of time that has passed since settlements started, we're looking now from 1990 through to 2020. And it's been a huge effect for those Māori who are settled. But, of course, Te Arawhiti is now looking really at the whole of the Māori situation. And its mandate not just for settled iwi.
So with the Foreshore and Seabed Act, the Takutai Moana Act which was a repeal of the 2004 one, some of that very first settlement there, or not settlement, decision had has come through from the high court on the Bay of Plenty area so I mean we are finding things coming out that make us much less perturbed and upset.

And I've been very interested to see some of the comments that have come out more recently that have been much, much more poised and thoughtful. And that's where my hopes lie. And I think it will be interesting the next session here, actually, Tanja, to have a look at what Te Arawhiti is doing and where it's going.

But I just want to thank the other members of the panel. And I think it's been really interesting hearing more about the Tribunal. Because I could have taken it further but I realise Damian had some important things there to spread out for you people. I've also been very heartened by Colin, who I think really touched very closely on sort of where my thinking is going that we've moved so far. We've still got a way to go. We need to bring us all through and that's not an easy thing. But, you know, we just have that opportunity to be quite a unique nation.

Thanks, everybody for listening to us. We appreciate that. You've been an excellent audience. Thank you.

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