The Waitangi Tribunal’s latest report, Report on Whakatika ki Runga, a Mini-Inquiry Commencing Te Rau o te Tika: The Justice System Inquiry, was released today in pre-publication format. It finds that the Crown breached its Treaty duty to ensure that Māori claimants have the necessary resources to participate fully in all Tribunal processes. Claimants have been seeking a solution for several years, including through an urgent inquiry. Hearings finally took place in the latter half of 2022 as part of the newly constituted inquiry into the justice system, known as Te Rau o te Tika. The claimants argued that the unavailability of funding compromises their ability to make and pursue their Waitangi Tribunal claims and that this undermines the institution as a pillar of New Zealand’s constitution.
The Tribunal heard claimants in 53 claims on why the current arrangements for funding claimants are not working and do not meet Treaty standards. Claimant lawyers called over 40 witnesses, many of whom said the inadequate funding arrangements caused hardship and distress and discouraged participation.
The Crown called 11 witnesses from eight separate government agencies. Their evidence explained those agencies’ point of view on the funding arrangements that operate in eight kaupapa inquiries. (Kaupapa inquiries is the name given to inquiries focusing on subject areas of national significance like health services and the justice system.) The Crown conceded problems with current funding arrangements but argued that they were good enough in Treaty terms.
The Tribunal did not accept the Crown’s characterisation of the problems. It details in its report the many flaws in the present ad hoc funding arrangements. It was particularly concerned that officials knew about the inadequacies but Ministers did not act on their advice. The Tribunal says that, when the Crown fails to resource Māori properly to participate in its inquiries, the purpose of the Tribunal is seriously undermined. It is up to the Crown, which created the Tribunal for ‘the observance, and confirmation, of the principles of the Treaty of Waitangi’, to ensure that claimants can access its processes easily, and in a culturally comfortable way. There is simply no point in having a Waitangi Tribunal otherwise.
The Tribunal says that it is now urgent that the Crown and Māori sit down together to design suitable funding arrangements. It is not acceptable, in this area of policy that primarily affects Māori, for the Crown to come up with policy and leave ‘consulting’ Māori to the end. The Tribunal also recommends a standardised funding protocol until the long-term arrangements are agreed.
The claimants also sought to have the Ministry of Justice pay for documents filed in te reo Māori to be translated into English. Translations are required because there are participants in the process who cannot read Māori. Claimants told the Tribunal that this was not their fault. If the Tribunal requires translations, the Ministry of Justice should bear the cost. The Tribunal agreed. It strongly stated the imperative for the ministry to prioritise and fund this work. Claimants and their lawyers have a right to file submissions and evidence in Māori, and the Crown must support the use of te reo Māori in the Tribunal, whether orally or in writing. It was, after all, the Tribunal that, 40 years ago, found te reo Māori to be a taonga under the Treaty.
The panel members for Te Rau o te Tika are Judge Carrie Wainwright, Dr Paul Hamer, Dr Ruakere Hond, and Dr Hana O’Regan.
Report on Whakatika ki Runga, a Mini-Inquiry Commencing Te Rau o te Tika: The Justice System Inquiry – Pre-publication Version is now available to download as a PDF file:
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Major issues covered
Report on Whakatika ki Runga, a Mini-Inquiry Commencing Te Rau o te Tika: The Justice System Inquiry – Pre-publication Version
Wai 3060, Te Rau o te Tika: the Justice System Kaupapa Inquiry
In April 2022, the Waitangi Tribunal confirmed it would inquire into allegations concerning claimant funding in its jurisdiction as a first step in the newly constituted inquiry into the justice system, Te Rau o te Tika. The inquiry panel comprises Judge Carrie Wainwright (presiding), Dr Paul Hamer, Dr Ruakere Hond, and Dr Hana O’Regan. Their resulting report, Whakatika ki Runga, a Mini-inquiry Commencing Te Rau o te Tika: The Justice System Inquiry, focuses on the following four main issues:
- Whether claimants before the Waitangi Tribunal have a right to funding to enable their full participation.
- Whether the Crown accepts, as a matter of principle, that it has an obligation to fund claimants’ participation.
- The adequacy of the Crown’s ‘lead agency approach’ to funding claimants in kaupapa inquiries.
- The adequacy of legal aid under the Legal Services Act 2011 for claimants in the Waitangi Tribunal.
The Tribunal received 53 claims for the inquiry, and 37 parties were granted interested party status, including the Crown Forestry Rental Trust. Three hearings were held in Porirua and Wellington in July, September, and October 2022. The Tribunal heard from over 40 claimant witnesses, including 11 Crown witnesses from eight separate Government agencies, the former president of the New Zealand Law Society, and the Crown Forestry Rental Trust.
The Tribunal found that the Crown breached its Treaty duty to ensure that Māori claimants have the necessary resources to participate fully in all Waitangi Tribunal processes. It was particularly concerned that officials knew about the inadequacies of the present funding arrangements, but Ministers did not act on their advice.
The Tribunal observed that the unavailability of adequate funding compromises claimants’ ability to make and pursue their Tribunal claims, which undermines the Tribunal as a pillar of New Zealand’s constitution. It reinforced that it is the Crown’s responsibility under the Treaty, and under its own Treaty of Waitangi Act 1975, to ensure that claimants can access Tribunal processes easily.
The Tribunal recommended that the Crown and Māori co-design suitable funding arrangements. Until long-term arrangements are agreed, the Tribunal also recommended that the Crown impose a standardised funding protocol for all kaupapa and contemporary inquiries.
The Tribunal further found that claimants and their lawyers have a right to file submissions and evidence in te reo Māori and have them translated into English without cost or inconvenience to them. The Crown and the Waitangi Tribunal Unit must support the use of te reo Māori in the Tribunal, whether orally or in writing.
The Tribunal found that various administrative issues with legal aid in Tribunal proceedings meant that the system falls short in terms of both fairness and the Crown’s Treaty obligations. However, it did not recommend any changes to the Legal Services Act 2011, noting that an examination of legal aid in Aotearoa will form part the wider inquiry and that legal aid provisions in the Tribunal may change as a result of the recommended process of Māori–Crown co-design.
The next phase of the inquiry is Te Tūāpapa o te Tika, which will commence with a series of hui and wānanga in May 2023. This phase will consider how foundational principles of tikanga and justice will be applied in the inquiry. Four Pou Tikanga have been commissioned by the Tribunal to engage with the panel and parties as experts on these matters: Moe Milne, Ruth Smith, Paraone Gloyne, and Rāhui Papa.