Reparations and the Waitangi Tribunal

Reparations and the Waitangi Tribunal Paper to "Moving Forward" Conference

Chief Judge J V Williams

Tena koutou katoa. I have no expert knowledge of the legal or political context in Australia insofar as it applies to indigenous peoples here and even less on the issue of the controversial topic of the stolen generations. It would be utterly inappropriate therefore for me to express any view on the issues particular to this country. What I can do is talk to you a little bit about the process used for investigation into indigenous grievances in New Zealand, the outcomes of such investigations and the considerations which are brought to bear in the process. I do so in the knowledge that there is discussion here about the establishment of a Reparations Tribunal and knowing that there are various proposals for reparations packages.

Process:

The Waitangi Tribunal was established in 1975 though it did not become a significant force in the country until the mid 1980s. Its brief is to investigate claims by Maori that they have been prejudiced by law, policy, act or omission of the Crown and that such law, policy, act or omission is in breach of the principles of the Treaty of Waitangi (see generally s.6 Treaty of Waitangi Act 1975).

That requires a brief summary of the Treaty of Waitangi itself. The Treaty (as it is called in New Zealand) was entered into between the British Crown and five hundred and thirty-nine Maori chiefs on and after the 6th February 1840. Not all leading chiefs in the country at the time signed, thought most did. It has two versions. One in English, the other in Maori. The English version purports to transfer sovereignty from Maori to the British Crown in return for a guarantee in respect of property rights and equal treatment. The Maori version guarantees tribal self government to Maori in respect of themselves and their properties, both tangible and intangible. As you can see there is plenty of room for debate about what the Treaty means in any given circumstance - thus the reference in the Treaty of Waitangi Act to the principles rather than the text of the Treaty.

In any event the Treaty is the measuring stick against which all claims are assessed by the Tribunal. There are approximately one thousand claims on the Tribunal's books. They range from claims in respect of modern policy or proposed policy initiatives of the Government to historical grievances in respect of confiscations, land transactions etc in the nineteenth century.

The Tribunal strives to be bicultural and bilingual. Half of it's sixteen members are Maori. At least one Maori must sit on each panel. Much evidence is taken in Maori.

Hearings are held in traditional kainga or villages in traditional meeting houses in front of the communities who carry the grievance. The importance of providing a simple opportunity for tribal leaders and members to face Crown officials in the light of day and accuse them directly of historical or current wrongs must not be under-estimated. I have sat in many Waitangi Tribunal enquiries both as Counsel and as Presiding Officer and I have in each case had a powerful sense at the end of a week of hearings that the ability to repeat publicly in front of the tribe and others present at the hearing the grievances of the tribe can be enormously empowering. At the end of the community's case it has often seemed to me that people walk a little straighter with their heads held a little higher than was the case before the hearings started.

Hearings are held as much as is possible in accordance with tikanga Maori -that is Maori custom. Traditional greeting ceremonies are held at the beginning of the hearing. Prayer starts and ends each day. The Tribunal is not necessarily in control of its hearings. Maori custom always prevails in traditional villages and in traditional meeting houses wherever the latter are situate. The judges of tikanga Maori are not the Tribunal but the leaders of the local community. I think that the general effect of this 'letting go' is that the tribes feel that they own the Tribunal in a real sense. They look at the Tribunal and see themselves, they look at the practices of the Tribunal and see their own practices, they look at the work of the Tribunal and see their own lives.

On the other hand Tribunal hearings are public and transparent so that there is, I suspect, a broad acceptance within the wider Pakeha community (albeit grudging) that the work of the Tribunal is important and ought to continue. I state that cautiously because the Waitangi Tribunal would certainly win no popularity contest amongst the wider community.

For a decade or so now, the Government has offered a way of getting around the Tribunal (and the considerable time and resources that the process takes) by going to the Crown for direct negotiations. The evidential standard is not as high as that demanded by the Crown as respondent in the Tribunal and the way through that process is often easier. Yet very few Maori choose that approach. They prefer to go through the Tribunal even if it takes time and resources, and even if it puts stress on the communities. Maori prefer the public and transparent nature of the Tribunal's process. They prefer to be judged by a panel made up, partly at least, by Maori before they go to the Crown to discuss settlement.

It seems to me that there is an important lesson in that.

Outcome:

The approach to reparations packages for Treaty grievances has been the subject of controversy for some considerable time now in New Zealand. It should be remembered that we do not have an equivalent of the stolen generations phenomenon in New Zealand. The reparations I am talking about are those relating to Treaty based grievances - usually land or resource loss, or the levelling of war against tribes and the like. Often assimilationist acts or policies of the Crown are impuned - education openly designed to educate the Maori into European ways and out of their own. But there is no equivalent of the stolen generations policy in Australia or the residential schools phenomenon in Canada. This means the reparations issue in New Zealand is about compensation at the Tribal level rather than the personal. The Treaty of Waitangi Act gives no specific criteria for reparations. Relevant parts of section 6 of that Act provide:

(3) "If the Tribunal finds that any claims submitted to it under this section is well founded it may, if it thinks fit having regard to all the circumstances of the case, recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future.

(4) a recommendation under sub section (3) of this section may be in general terms or may indicate in specific terms the action which, in the opinion of the Tribunal, the Crown should take."

It does talk about compensation for past wrong as well as future action to avoid repetition but that is as far as it goes.

In large part the Tribunal has no mandatory powers. It reports on grievances but can generally only make recommendations to Government. There are two limited exceptions. The Tribunal can direct that State Enterprise lands be returned to Maori and that Crown Forest lands be returned to Maori (in the latter case together with monetary compensation if that is seen as appropriate). These powers have been used once in the last 15 years. They are seen by the Tribunal as truly exceptional.

The limited powers of the Tribunal can sometimes be frustrating but on balance they work well. They give the Tribunal certain freedoms which it probably would not have if it made final and binding decisions as a matter of course. In the end the settlement of tribal grievances is a matter for politicians on both sides. Settlement packages are complicated and often call for great sensitivity and judgement on the part of those settling. It is much better that the leaders themselves make those judgements and put those to their constituencies in the ratification process. Such compromises as settlement packages inevitably require should be freely made by the parties not imposed by a Tribunal.

In the past the Tribunal has expressed the view that a simple damages approach to reparations is neither possible nor appropriate. In New Zealand cost of compensating for actual land lost would be beyond the capacity of the country to pay. In addition, trying to arrive at a measure by which one could say what the present day value of a tribal estate which existed 100 or 150 years ago would be too hypothetical.

In any event, it is in the nature of indigenous grievances that cash compensation alone will never work. The approach of the Waitangi Tribunal is to support packages which restore a lost economic base bearing in mind the extent and nature of the loss and the current needs of the grieving community. This tends to make settlements more future looking and should help to get communities out of grievance mode and into development mode sooner. Equally importantly emphasis in a reparations package must be given to what, in the Treaty is called - tino rangatiratanga. That is tribal autonomy. In many ways the greatest Treaty breach throughout New Zealand's colonial history was the theft of the ability of the tribes to rule themselves in accordance with tikanga Maori or Maori custom. The refusal to allow the tribes to make their own collective decisions about how they would deal with both the threats and opportunities which colonisation presented. Once that was lost, it was not long before the land, the fisheries and the resources of the tribe were lost as well. Undermining the autonomy of an indigenous community has always been the most effective way of getting at its resources. It follows that restoration of that autonomy is the most important aspect of any settlement package.

Finally, although I know it is a controversial subject here - settlements are about face. In New Zealand we call it the restoration of mana - of standing, of self pride, of that indefinable something by which some people walk tall and others do not. Settlement packages always include a full apology. Face could not be restored and settlements could not be achieved in New Zealand without them.

I think that there is an underlying lesson in all this. The process of colonisation affected the whole of life for Maori. Mostly in a negative way. Reparations packages must equally affect the whole of life for Maori today if those packages are to make a difference. In the end the resolution of indigenous grievances is about indigenous survival. That is about ensuring the survival of indigenous identity and difference. Linguistic, cultural, political economic and so forth. If reparations packages do not focus on this, they will fail in their primary purpose which is to settle the grievance. Thus they must be future looking and they must be organic. They must create a relationship between the tribe, first nation or community and the state which is positive, beneficial and perpetual. Once relations between indigenous communities and the state are constituted on a proper footing it becomes a continual process of negotiation and adjustment. Like other partnerships, the relationship is always tested.

There is an old proverb which says - Ko te kai a te rangatira, he korero - the food of chiefs is talk. I think in this context the old people meant that when dealing with issues of great controversy, rule number one is create robust mechanisms for dialogue across the divide. And keep talking until all of the talking is done.

Kia ora mai tatou katoa.