In the 1980s, New Zealand’s department of Māori affairs set aside money for language groups to spend on projects as they saw fit. When Wellington teacher Huirangi Waikerepuru received his group’s share, he used it to challenge the government. He took his complaint to a relatively new body called the Waitangi Tribunal. Formed in 1975 amid a wave of protest, it was designed to address Māori grievances by determining whether the meaning of the country’s founding document, the Treaty of Waitangi, was being adhered to. Waikerepuru’s claim was ambitious. He wanted Māori to have equal status to English. He launched his claim on behalf of all Māori against all branches of government, over more than a century of laws and policies. Waikerepuru argued that every lever of government had a case to answer for the language’s marginalisation – from the education department that discouraged it, to the state-owned radio that refused to broadcast it and a civil service that refused to use it. “Every government department had hired a QC,” recalls treaty lawyer Annette Sykes, who was involved with the case. “We had no money but were armed with self-belief and the knowledge we were right.” Over weeks of hearings, busloads of people told their stories – from elders who had been caned for speaking Māori at school, to young activists who said their language was a birthright. The language, they argued, was a treasure protected by the treaty. Waikerepuru’s claim prompted the government to act and was defining for the revitalisation of the language. It highlights the impact the tribunal has had on Indigenous rights and policy. Now, as it marks its 50th anniversary this year, the role the tribunal should play in the future is being questioned. The coalition government wants to review the tribunal, to “refocus” the scope of its inquiries, sparking fears from critics that a key outlet for Indigenous policy concerns could be silenced. The NZ First minister and spokesperson for Māori affairs, Shane Jones, tells the Guardian the tribunal is becoming “an unnecessary impediment” to lawmaking. “The Waitangi Tribunal can still fulfil an important role, but whether or not it needs to be a legalistic, highly litigious adversarial system – which it has morphed into now – we don’t accept that should be the case,” he said. How the tribunal works The tribunal holds inquiries and investigations, led by a judge and a panel of Māori and non-Māori experts. It then provides lengthy reports and non-binding recommendations. The government is able to ignore it, and often does. Over the past five decades, issues considered by the tribunal have ranged from detailed accounts of land theft to examinations of intellectual property rights. It has revealed deep inequities in health and education, and forced rethinks of fisheries and environmental regulations. In 1977, Māori tribe Ngāti Whātua protested against a government plan to sell Takaparawhau/Bastion Point by occupying the site for 506 days, before police moved in. In 1988, the Waitangi Tribunal found the tribe had been wronged and the government eventually returned the site with compensation. Since the government was elected in 2023, Māori groups have filed a record number of claims with the tribunal over its policies, including the abolition of a Māori health authority, the removal of Māori constituencies on local councils, and a bill to redefine the principles of the treaty. Earlier this month, the bill was voted down in parliament. Despite its recommendations being non-binding, the tribunal has had a significant effect – most notably, through historical inquiries that forced successive governments into negotiations and settlements with iwi (tribes). In 1986, it published a 56-page report into Waikerepuru’s language claim, agreeing the language was a treasure the government had an obligation to foster and protect. The government made te reo Māori an official language, established a language commission and funded Māori broadcasting. “I don’t think many had envisaged how that claim became a beacon for the Māori language revitalisation movement,” says Sykes. “But it did.” The tribunal emerged after decades of calls by Māori for the government to honour the Treaty of Waitangi. The treaty is a relatively simple document, with only three clauses that allow for a government, while also guaranteeing Māori self-determination. But problems arose as soon as it was hurriedly drawn up in 1840, with four English versions and a Māori version that matched none of them. It didn’t take long for the Crown to ignore it, with war and rampant land speculation in the 19th century. By the 1970s, New Zealand saw an eruption of Māori protest, with petitions, land marches, sit-ins and occupations. Fitzmaurice-Brown says that at this time, pressure was building to a point the government could no longer ignore. In 1975, Labour MP Matiu Rata passed a bill writing the treaty into legislation for the first time. Rata had wanted to make the treaty legally enforceable, but settled for a permanent commission of inquiry where Māori could file a claim if they believed the government had breached the “principles” of the treaty, either through “law, policy, act or omission”. Sykes says it was “not just some magnanimous move by the Crown” but “a minimalist response to growing activism in an increasingly political decade”. Tribunal under review The role the tribunal will play in the years ahead is not clear. Jones insists his party does not want to abolish the tribunal, but the terms of a review are being developed and are likely to be introduced this year. “The Waitangi Tribunal for the last 30-odd years has been regarded as the tip of the taiaha [spear],” Jones says. “It needs to act more like a forum or an assembly where advocates can come together with the government.” With most of the tribunal’s historical inquiries completed, much of its time is spent on modern policy. It also considers constitutional issues, such as a 2015 determination that Māori never ceded sovereignty. Jones says the tribunal has “largely fulfilled its historical mission, which was to enable the modern generation to meet the debts of history, and now it’s focusing on public policy”. Yet with Māori-Crown relations at a low after historic protests last year, many are suspicious of change, says Victoria University law lecturer Luke Fitzmaurice-Brown. “There’s been such a unified response from Māori and that will emerge again in relation to the tribunal,” he says. “People would rally around that.” Fitzmaurice-Brown argues any suggestion the tribunal has strayed from its original purpose is misleading, as it has always investigated contemporary government policies. He says the push to return the tribunal to its original purpose is “thinly-veiled criticism of the existence of the tribunal in general”. “We’ve never seen any government fully uphold te tiriti [the treaty], and until that happens the tribunal will continue to have a role.” The flurry of inquiries in the past 18 months has shown many Māori still see it as a crucial lever. Forty years after she first appeared in the language claim, Sykes still regularly represents claimants in the tribunal. “By the treaty they made with the colonising English, they and their culture were given promises in writing that they expect and demand to be kept.”
Author: Jamie Tahana