News for Unheard Waitangi Tribunal Treaty Claims

by Dr Bryan Gilling & Sophie Dawe - Morrison Kent

Waitangi Tribunal Historical Claims Process

Several hundred historical claims have still not been fully heard or investigated by the Waitangi Tribunal. This is mainly because the claims have been submitted too late for inclusion in their respective district inquiries, or the claim relates to a district for which the Tribunal has not held an inquiry. Therefore, they fall outside the district and kaupapa inquiry processes. To remedy this, the Waitangi Tribunal has created a new programme to hear those claims not covered by the district and kaupapa inquiry processes. The programme will complement those processes, and will assist in fulfilling the Tribunal’s goal of hearing all historical claims by 2020.

How will the programme work?

There will be two inquiry processes in this programme, namely: 
  • A fast-track process for claims or parts of claims in districts with completed Tribunal inquiries, for which their historical grievances already have coverage in the evidence and Tribunal report relating to their district; and
  • A standard process for claims or parts of claims in districts without a Tribunal inquiry. This will also cover claims filed after a district inquiry was completed, but did not cover their historical grievances.

In preparation for commencing the new programme, the Tribunal will consult all claimants who appear to have eligible claims on whether they still want their claim heard.

The Tribunal will consider the remaining historical claims relating to a particular area or locality within the framework of the 37 inquiry districts. There are a large number of remaining historical claims which raise both kaupapa (thematic) and local grievances, and claimants may wish to participate in either inquiry or both. The Tribunal plans to coordinate the two programmes so that the appropriate process includes all aspects of such claims that claimants wish to bring."

Which claims are excluded?

The Tribunal is not intending to reopen previous district inquiries. Therefore, the new programme will not inquire into: grievances being heard in a current district inquiry, historical grievances arising in the same district in which claimants participated in a previous Tribunal inquiry, or grievances that fit within the thematic scope of the kaupapa inquiry programme.

Generally, the Tribunal will not hear claims under this new inquiry programme that are being negotiated with the Crown as to settlement. This exclusion applies both to negotiations currently underway and those that commence in the future insofar as future mandated negotiation purports to settle a specific claim. Nor can the Tribunal inquire further into settled historical claims or parts of claims over which its jurisdiction has been removed by settlement legislation.

The eligibility of specific claims to participate in the inquiry will be considered at the preparatory phase, before commencing the remaining historical claims programme. After that it will be considered on a case by case basis. 

Recent Developments

Judge Carrie Wainwright was seconded to the Waitangi Tribunal to lead the preparatory phase for the remaining historical claims programme. This involves reviewing all claims to assess which of them may qualify for inclusion in the programme. Claims are being assessed on a district by district basis to determine which ones are eligible, and whether the issues the claims raise are still live. 

Judge Wainwright held a consultative hui in June 2016 in respect of claims in the North-Eastern Bay of Plenty inquiry district. Claimants who were in attendance told the Tribunal that they wanted the Tribunal to convene a full inquiry into outstanding claims within that district. The Tribunal has made no decision about an inquiry in the North-Eastern Bay of Plenty district, as the Crown has at the same time fast-tracked settlement negotiations for Whakatohea at the core of the district.

After a mediation attempt, the claimants filed applications for an urgent hearing to prevent the Crown purporting to settle the claims before a hearing. The Tribunal granted the urgency applications in late July 2017, and so a hearing will happen shortly. 

For those in need of assistance with managing a remaining historical claim, please contact the article author Dr Bryan Gilling or the Morrison Kent Wellington office  (04) 472-0020

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