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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.

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

The report He Pāharakeke, he Rito Whakakīkinga Whāruarua: Oranga Tamariki Urgent Inquiry is the result of an urgent inquiry into allegations concerning the contemporary actions of Oranga Tamariki. In October 2019, the Waitangi Tribunal had granted an application for urgency and had confirmed that the inquiry would focus on three issues:

• Why had there been such a significant and consistent disparity between the number of tamariki Māori and non-Māori children being taken into State care under the auspices of Oranga Tamariki and its predecessors?
• To what extent would the legislative policy and practice changes introduced since 2017, and then being implemented, change this disparity for the better?
• What (if any) additional changes to Crown legislation, policy, or practice might be required in order to secure outcomes consistent with Te Tiriti/the Treaty and its principles?

The panel for the inquiry consisted of Judge Michael Doogan (presiding), Professor Rawinia Higgins, Kim Ngarimu, and Professor Pou Temara. The hearings commenced in July 2020 and continued in October, November, and December, with closing submissions convened in February 2021.

The Tribunal came to the view that the disparity between the number of Māori and non-Māori entering care could be attributed, in part, to the effect of alienation and dispossession, but also because of a failure by the Crown to honour the guarantee to Māori of the right of cultural continuity embodied in the guarantee of tino rangatiratanga over their kāinga.

The Tribunal’s primary recommendation was that the Crown step back from further intrusion into what was reserved to Māori under te Tiriti/the Treaty and allow Māori to reclaim their space. In addition, the Tribunal recommended that a Māori transition authority be established. The primary function of this authority would be to identify the changes necessary to eliminate the need for State care of tamariki Māori.

The Waitangi Tribunal’s He Aha i Pērā Ai? The Māori Prisoners’ Voting Report reports on three claims concerning section 80(1)(d) of the Election Act 1993, which excludes sentenced prisoners, including Māori prisoners, from registering as an elector and thus from being able to vote.

The three claims were brought by Joel Twain McVay, Rhys Warren, Hinemanu Ngaronoa, Sandra Wilde, and Marrissha Matthews (Wai 2472); Carmen Hetaraka on behalf of Ngāti Wai prisoners, Māori prisoners and Māori generally (Wai 2842); and Dr Rawiri Waretini-Karena, Donna Awatere-Huata, and Pirika Tame (Tom) Hemopo (Wai 2867).

The common complaint of the claims was that section 80(1)(d) is inconsistent with the principles of the Treaty of Waitangi and has resulted in significant prejudice to Māori. The claims were heard under urgency.

The Tribunal panel comprised Judge Patrick Savage (presiding officer), Kim Ngarimu, and Ron Crosby. Hearings for the inquiry were held during May 2019.

The Tribunal found that section 80(1)(d) of the Electoral Act 1993 breached the principles of the Treaty. The Tribunal further found that the Crown has failed in its duty to actively protect the right of Māori to equitably participate in the electoral process and exercise their tino rangatiratanga individually and collectively.

The Tribunal also found that disenfranchising Māori prisoners has continued to impact on the individual following their release from prison and that impact extends beyond the individual to their whānau and their community.

The Tribunal made three recommendations:

• the legislation is amended urgently to remove the disqualification of all prisoners from voting, irrespective of sentence;
• the Crown start a process immediately to enable and encourage all sentenced prisoners and all released prisoners to be enrolled in time for the next general election in 2020; and
• a process is implemented to ensure Crown officials provide properly informed advice on the likely impact that any Bill, including members’ Bills, will have on the Crown’s Treaty of Waitangi obligations.

The Maniapoto Mandate Inquiry Report was originally released in pre-publication form on 11 December 2019. It was the outcome of 10 claims made on behalf of individuals, whānau, hapū and hapū collectives. The central issue in this inquiry was whether the Crown breached the Treaty of Waitangi in recognising the Maniapoto Māori Trust Board’s mandate to negotiate the Ngāti Maniapoto settlement of historic Treaty claims with the Crown.

The hearings, held under urgency, took place in Hamilton in July 2019 with closing submissions heard in September 2019. The panel appointed to hear the claims was comprised of Judge Sarah Reeves (presiding officer), Professor Pou Temara and Dr Aroha Harris.

In December 2016, the Crown officially recognised the Maniapoto Māori Trust Board as having secured a mandate from the people of Ngāti Maniapoto to enter settlement negotiations on their behalf. The claimants alleged that the Crown’s actions, in particular the implementation of the ‘Broadening the Reach’ strategy and insufficient opportunities to voice opposition, prevented the claimants from asserting their tino rangatiratanga.

Another central theme of opposition to the Maniapoto Māori Trust Board’s mandate was that its deed of mandate did not make appropriate accommodation for hapū rangatiratanga, in contrast to the structure and approach of the entity originally established to seek the mandate, Te Kawau Mārō. Furthermore, some claimants took specific issue with either the absence or inclusion of their whānau, hapū and Te Rohe Pōtae historical claims in the claimant definition set out in the deed of mandate.

In the report, the Tribunal’s overall finding was that the Crown’s recognition of the Maniapoto Māori Trust Board’s mandate was reasonable given the Trust Board’s level of support, infrastructure and extensive involvement in previous settlements. It was also reasonable given that, prior to September 2016, the Crown had conducted lengthy discussions in good faith with Te Kawau Mārō.

However, the Tribunal found that aspects of the process to recognise the Maniapoto Māori Trust Board’s mandate were not fair nor undertaken in good faith. In particular, the Crown’s implementation of ‘Broadening the Reach’ and its fluctuating position concerning the inclusion of Ngāti Apakura in the deed of mandate breached the principles of partnership, reciprocity and equal treatment. The Tribunal concluded that ‘Broadening the Reach’ in particular prioritised the Crown’s political objectives to complete settlements within a shorter timeframe over its Treaty relationship with Ngāti Maniapoto.

The Tribunal also found that the Maniapoto Māori Trust Board deed of mandate was largely adequate for the purpose of negotiations, provided that the Crown made some amendments to the claimant definition and withdrawal mechanism.

The Tribunal did not recommend a halt to negotiations. Instead it recommended that the Crown provide distinct recognition in the deed of mandate for certain hapū, give serious thought to post-settlement governance entity options to manage and distribute the Ngāti Maniapoto settlement, adjust the resourcing and quantum for the settlement to account for the re-inclusion of Ngāti Apakura, amend the remedies clauses in the deed of mandate, and actively have regard to its whanaungatanga obligations to Ngāti Maniapoto Māori in the Treaty settlement process.

The Hauraki Settlement Overlapping Claims Inquiry Report was originally released in pre-publication form in December 2019. It made findings on four claims. The main issue for the inquiry was whether the Crown breached the Treaty of Waitangi through the overlapping claims policies, processes and practices it adopted when negotiating collective and individual settlement deeds with Hauraki iwi. A related but distinct issue was whether one Hauraki iwi, Ngāti Porou ki Hauraki, were themselves prejudiced by the Hauraki negotiation process. 
 
The hearings, held under urgency, took place in April 2019. The panel appointed to hear the claims consisted of Judge Miharo Armstrong (presiding officer), Professor Rawinia Higgins, Dr Ruakere Hond, and David Cochrane. 
 
The Pare Hauraki Collective Redress Deed, which awards shared redress for the collective interests of the 12 iwi of Hauraki, was signed in August 2018. Along with some individual Hauraki deeds, it contains redress that falls within rohe of Ngāi Te Rangi and Ngāti Ranginui (both Tauranga Moana iwi), and Ngātiwai (whose rohe extends from the Bay of Islands to Matakana in Mahurangi and includes several offshore islands). All three iwi alleged the Crown failed to undertake a proper process to resolve overlapping interests in the areas at issue, and as a result, wrongly allocated redress to Hauraki iwi.
 
The three iwi shared key grievances. One was that the Crown failed to properly consult and share information with them about redress it was proposing to Hauraki iwi. Another was that the Crown did not adequately support the use of a tikanga-based process to resolve redress disputes and to test claimed interests. Yet another was that redress the claimants had agreed to later appeared in initialled or signed deeds in an expanded or changed form. 
 
This last issue was key for Tauranga Moana iwi in particular, who objected to a provision in the collective deed allowing Hauraki iwi to participate in the Tauranga Moana Framework – an innovative co-governance mechanism for managing and protecting the Tauranga Moana harbour. Ngāi Te Rangi and Ngāti Ranginui argued that the provision granted Hauraki iwi rights in Tauranga Moana and over the framework that were not previously agreed, and that were incommensurate with their interests. 
 
The central allegation by Ngāti Porou ki Hauraki was that the Crown failed to treat them equally to other Hauraki iwi, in both their collective and iwi-specific settlement negotiations. They claimed they were denied funding and access to the Crown, among other things, leaving them without an effective voice in the negotiations, and ultimately, without a fair redress offer from the Crown. They were particularly aggrieved at the Crown’s removal of some cultural redress from their individual settlement following an overlapping claims process they alleged was biased and unsound.
 
The Tribunal found the claims of Ngāti Porou ki Hauraki were not well founded, and as such, made no recommendations in respect of them.
 
The Tribunal found the claims of Ngāi Te Rangi, Ngāti Ranginui and Ngātiwai to be well founded. It found the Crown had breached its Treaty obligations to these iwi by failing to properly consult them, failing to communicate openly, failing to share information with and between overlapping groups, adding redress after reaching initial agreements, and damaging relationships. Further, it found the Crown had breached the Treaty by failing to properly promote, allow for, and facilitate tikanga-based processes at the appropriate times, especially at the start of negotiations. Finally, the Tribunal criticised the Crown’s public guide to settlement policies and processes, Ka tika a muri, ka tika a mua (the Red Book). Echoing previous Tribunal reports, it found the book to be vague, unhelpful, and unfit for purpose.  
 
Accordingly, the Tribunal recommended that legislation giving effect to the Pare Hauraki Collective Settlement Deed, and the individual Hauraki iwi settlement deeds, not proceed until the contested redress had been through a proper overlapping claims process as set out in the report.
 
It also recommended that the Crown, when dealing with overlapping interests during settlement negotiations, fully commits to and facilitates consultation, information sharing, and tikanga-based resolution processes that reflect the Treaty principles identified in the report; and that it amend the Red Book accordingly. Chapter 5 of the report details substantive recommendations about the use of tikanga-based processes to resolve overlapping interests.

The Waitangi Tribunal’s report into the Crown’s response to contemporary Māori homelessness, Kāinga Kore, examines Crown policies and strategies from 2009 (when the Crown introduced its first comprehensive definition of homelessness) to 2021 (when the Tribunal’s hearings took place).

The Tribunal finds that the Crown breached its Treaty obligations during this period by:

• Its failure to adequately consult with Māori in the development of its homelessness definition in 2009 and to rectify this in the period since. This was a breach of the Crown’s Treaty duty of consultation.
• Its prolonged failure to adequately collect data on homelessness in New Zealand. This breached both the principles of good government and active protection.
• Its failure to provide homeless Māori with housing that meets a range of basic standards in terms of amenities, comfort, and security. This was a breach of the principle of active protection. The Crown also breached the principle of equity through the growing over-representation of Māori with unmet housing need, and it breached the principle of good government by its failure to implement, or monitor the progress of, its Māori housing strategy He Whare Āhuru.
• The narrowness of its consultation over the Homelessness Action Plan and the Māori and Iwi Housing Innovation Framework (MAIHI).
• Its failure, with regard to rangatahi homelessness specifically, to take vigorous action to protect such a vulnerable group. This breached the principle of active protection. It also breached the principle of good government through its failure to obtain adequate data on rangatahi homelessness.

The Tribunal also found that the Crown’s acknowledgement that ongoing ‘fragmentation’ and ‘congestion’ within the housing system was undermining Māori housing ambitions confirmed that it had breached the principle of good government.

Kāinga Kore does not examine (or make findings on) broader housing issues which the Tribunal is yet to hear evidence and submissions on. These will be considered later in the inquiry and include the historical provision of housing to Māori, the longstanding barriers to building on whenua Māori, and the advent of the welfare state in the 1930s and its later abandonment in the neo-liberal political economy of the 1980s and beyond.

The Housing and Policy Services Kaupapa Inquiry (Wai 2750) was formally initiated in July 2019. The following year, the Tribunal confirmed that stage one would address contemporary Māori homelessness in a targeted way. This decision reflected the parties’ wishes and recognised that homelessness was the most acute and urgent housing issue Māori were facing, especially with the advent of the COVID-19 pandemic. Seventy-nine claims were eligible for this initial stage of the inquiry and a further 21 parties were granted interested party status. Five hearings were held between March and November 2021. Witnesses appeared for the Crown from five separate agencies and technical witnesses were called by the claimants, but no research was commissioned for this part of the inquiry.

The panel for the Housing and Policy Services Kaupapa Inquiry comprises Judge Craig Coxhead (presiding), Dr Paul Hamer, Prue Kapua, and Basil Morrison. Hearings for the next stage of the inquiry are due to begin in 2024.