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.