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Tribunal decision concerning Treaty settlement with Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua and the trustees of the Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua Settlement Trust

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.