Tribunal issues

Throughout the 1990s, claims continued to be filed with the Waitangi Tribunal at a hectic pace with Māori continuing to place confidence in the Tribunal, especially with Jurist Eddie Durie appointed as Chairman of a much-expanded Tribunal membership.

One issue of concern to Māori during the 1990s was the declining number of fluent speakers of Te Reo. In 1980, only 50,000 speakers of the language remained, leading to the creation of Te Kohanga Reo in 1982, and the successful Te Reo Claim to the Waitangi Tribunal in 1985.

Meanings of words

However, Maori concerns vis-a-vis the language extended beyond the issue of revitalisation. Throughout the early 1990s, the Waitangi Tribunal was asked to consider matters of Māori language meanings when adjudicating on historical claims. Questions before the Tribunal related in part to the authenticity of Te Reo to convey customary meanings. The issue was; could claims for material redress rest upon evidence derived from Te Reo itself? Such questions were especially raised during the Muriwhenua Claim in the far north.

Senior and noted Tribunal historians like Dr Barry Rigby and Dr Grant Philippson had headed teams of researchers which produced substantial reports on this issue; examples were Historical Evidence relating to the Muriwhenua Claim (Doc A1), Muriwhenua North Report (Doc B15), and Mangonui Area and the Taemaro Claim (Doc A21).

During the Muriwhenua claim hearings, two reports of interest (two of many) were issued, taking opposing views as to the veracity of Māori linguistic evidence offered in this claim. One report was Dr Ann Salmond’s Treaty Meanings which dealt with northern Māori understandings of the key words and phrases especially used in purchase documents, and their surrounding contexts with particular reference to the Treaty and land deeds.

Salmond argued that, based on contemporary Muriwhenua linguistic evidence, it was clear that Māori did not comprehend the full alienable impacts of certain English words, for which there were no Māori language equivalent. Dr Joan Metge and Dr Margaret Mutu of Ngā Puhi also produced reports reaffirming these arguments.

In reply, Dr Lindsay Head’s An analysis of linguistic issues raised the temperature on this issue by offering a contrary view, based equally upon the language of the deeds and their contemporary context. She concluded that there was no linguistic evidence to support the view that Māori did not fully comprehend the permanence of land transactions.

Academic unease

The Tribunal resolved this issue by accepting linguistic-based arguments but immediately attracted scholarly criticism. Such decisions had created ‘academic unease,’ wrote Dr Michael Belgrave, who argued that, in finding that early transactions over land in the Far North were customary gifts rather than full alienations, the Tribunal had overlooked strong evidence to the contrary.

However, Māori scholars such as Dr Mutu defended the Tribunal’s findings, asking how permanent were Māori transactions expected to be? Many Māori undoubtedly thought that they were merely passing on use rights or other limited transfer rights as possessed by hapū under custom law tenets. No other established right to ‘alienate’ existed’ she argued.

 Such debates, and there were many others, began to swirl around the Tribunal after 1990 as scholars began to take note of its processes and findings. Many academic responses to the Tribunal were conservative and negative. Legal Scholar Dr Andrew Sharp criticised the Tribunal for the many ‘anachronisms’ in its reports, based upon its supposed misconstruing of words, extracting meanings that did not exist in 1840. In response, Dr David Young, a former claimant historian, pointed out that the Tribunal operated upon a clear proposition – that the ‘Treaty was always speaking’.

Positive outcomes

However, some positive outcomes were achieved. In 1990, the Crown presented the Hopuhopu Military Camp, north of Hamilton, to the Waikato people as a gesture of goodwill; and as a way of committing itself to the resolution of the Waikato Tribunal claim.  In 1863, 1,217,437 acres of customary land in the Waikato had been confiscated by the Crown. With the claim now settled in 1986, the Crown was anxious not to show itself as dilatory in arranging practical redress and restoring Waikato economic autonomy.

Further north in Auckland, Bastion Point was returned to Ngāti Whātua with a compensation package of $3 million attached. Fifteen years earlier, Ngāti Whātua had undertaken a 507 day occupation of the area in order to prevent the land, then held by the government after being seized in 1953, from being turned over to property developers. The occupation had ended with mass arrests watched live on television. The return of Bastion Point to Ngāti Whātua, then, was equally an act of significant restorative value. Māori were not slow to acknowledge this.

The Waikato River.

To a large extent, the Waitangi Tribunal operated well beyond the public gaze. From time to time, one of its findings or utterances would make the headlines, at times generating heated but misdirected publicity.

Despite this, Māori increasingly turned to the Tribunal in the hope that it could facilitate redress for past wrongs, though, as Māori were well aware, the government was the final arbiter of compensation – if not entirely the jury, then the Judge also holding the chequebook.

A just society

During the 1990 Sesquentennial commemorations, Tribunal Chairman Eddie Durie took the opportunity on several occasions to put his view of the Tribunal’s work.

New Zealand’s search for a just society, he suggested, had been apparent when New Zealand ‘became the first democratic country to give women the vote in 1893.’ It was further apparent  when New Zealand established a welfare state in the 1930s. ‘It is not a just society however when an identifiable people within that society are denied access to the law for the resolution of their legitimate claims.’

Save for times of civil emergency, Durie continued, a just society would not allow such a situation to develop over one year, much less 150 years. ‘For a while we did not see that, but we see it now.’ At the eleventh hour, during our Sesquentennial celebrations, New Zealand began the task of setting things to right. ‘Although we started much later than in North America, for example, we have possibly done as much in the last six years as was done there in a lifetime.’

Having spent fifteen years in the judicial administration of Māori affairs, said Durie, he had come to the view that there was no ideal solution to Māori claims. Large scale land and financial returns were now impracticable. New Zealand did not have the resources needed to make full monetary amends to Māori.

There would need to be a compromise, a second best, he said. With this would come widespread disappointment amongst Māori; it was therefore necessary that both sides should acknowledge that to be so. ‘If that were the case, then it became important to talk not only of compensation, given the limitations on proper recompense, but of long term strategies to assure Māori a better future.’ However, in the first instance, claims had to be resolved, said Durie, ‘not only to end the past, even assuming that can be done, but to create a new beginning.’