Going to Hearing

Hearings are held in order that the Tribunal can hear evidence from claimants to substantiate their claims and from other parties, including the Crown. The parties' lawyers will also make submissions containing legal arguments based on Treaty principles. Hearings are normally open to the public.

Hearing Venues

The Tribunal tries to hear claimant groups at the venue of their choice and according to their protocols, where that is desired. Usually, claimant groups are heard on their marae. When the Tribunal hears the Crown and others who are entitled to be heard, it often moves to a neutral venue (such as a public hall or a conference centre) or, occasionally, it uses courthouse facilities. In all cases, however, the Tribunal must be satisfied that a proposed venue is suitable for its needs and that it meets certain health and safety requirements. Accordingly, the Tribunal makes the ultimate decision as to where it sits.

Types of Evidence Heard

Typically, claimant evidence is a mix of oral evidence from kaumātua and rangatahi and written evidence comprising traditional and professional research reports. Where the evidence is written, it will normally have been submitted to the Tribunal in advance. At hearings, witnesses usually present summaries of their reports. Evidence may be presented in te reo Māori and all witnesses may be questioned by the Tribunal and by counsel for other parties. Sometimes, in the course of a hearing, the Tribunal will visit sites of importance to the claimants (such as pā sites and wāhi tapu) so as to gain a fuller appreciation of the claim or claims.

Length of Hearings

The length of an inquiry depends on a number of factors. In a large district inquiry, there are likely to be several weeks of hearings. The introduction of the New Approach to Historical Claims has provided a process to reduce hearing time and streamline the whole Tribunal process. The overall hearing timeframe arises from the amount of preparation involved in each hearing, and because most members do not work full-time for the Tribunal. In a smaller inquiry, no more than two or three hearings may take place over a much shorter period of time. Occasionally, where a single claim is being heard and the issues are limited, there may be no need for more than one sitting, and that may be completed in just a few days.

Order of Proceedings

The general order of proceedings over the course of an inquiry is:

• the claimants present their evidence and submissions;
• others with an interest in the inquiry present their evidence and submissions;
• the Crown presents its evidence and submissions;
• and the parties present their closing submissions.

How Are Claims Heard?

In general, the Tribunal groups claims into geographical areas (called inquiry districts) and hears all the claims - historical and contemporary - that relate to a district in one inquiry. However, it may hear a generic claim (being a claim that does not relate to a particular inquiry district), or a claim that is granted urgency, in a separate inquiry. In determining the extent of a particular inquiry district, the Tribunal balances a number of factors, including:

• common issues that exist between claims (such as the Crown actions or the resources to which claims relate);
• the geographical size of the district;
• the number of claims to be heard within the district; and
• the associations that tribes have with an area.

Although the Tribunal makes the final decision, it invites affected claimants and the Crown to make submissions on inquiry districts as they are proposed.

Order of Hearing Districts

The Tribunal maintains a forward programme that sets out a projected timetable of research and hearings for each inquiry. The programme is based on a number of factors, including:

• the priority given to districts with a raupatu element to their claims;
• the research already underway via the Tribunal and the Crown Forestry Rental Trust;
• any overlaps with other districts already in hearing or being researched;
• the strength of the claimants' desire to go through the Tribunal process, as opposed to entering into direct negotiation with the Crown.

Because there are many factors that can affect when a district will be ready for hearing, the order in which hearing districts are to proceed may change. The forward programme is updated and printed each year in the Waitangi Tribunal Business Strategy, which is available to the public.

The Casebook Method

Tribunal inquiries generally follow the casebook method. This involves planning, as far as is possible, the research that will be required in the inquiry and completing that research before hearings start. The completed research is then bundled together into volumes, collectively known as a 'casebook', and distributed to counsel representing the main claims in the inquiry.

Urgent Inquiries

In certain circumstances, the Tribunal may decide to urgently inquire into a claim, or part of a claim. In considering an application for urgency, the Tribunal will look at a number of factors, including whether:

• the claimants can demonstrate that they are suffering, or are likely to suffer, significant and
• irreversible prejudice as a result of current or pending Crown actions or policies;
• the claim or claims challenge an important, current or pending Crown action or policy;
• an injunction has been issued by the courts on the basis that the claim or claims for which
• urgency has been sought has been submitted to the Tribunal;
• there is no alternative remedy that, in the circumstances, it would be reasonable for the
• claimants to exercise (such as action in the general courts); and
• the claimants are ready to proceed urgently to a hearing.

Applications for urgency should be addressed to the Registrar and a copy should also be served on the crown (Crown Law Office, P.O. Box 2858, Wellington). There is no prescribed form, however an application should set out the following information:

• the specific reason why an urgent inquiry is sought;
• whether the application relates to a claim or a group of claims in their entirety or whether it relates to an aspect of a claim or group of claims;
• whether the applicant is ready to be heard or whether any research first needs to be carried out or completed, and, if research is required, what the nature and extent of that research is;
• any people or bodies whom the claimants believe should be notified by the Tribunal because they are affected by the application; and
• applicants should also confirm that copies of the urgency application and supporting documentation has been served on the Crown

The Tribunal considers applications for urgency very carefully and, before making a decision, will hear submissions from the claimants and from those affected by the application, including the Crown. Alternatively, the Tribunal may deal with the application on the papers without convening a conference.

Planning an Inquiry

As the casebook for an inquiry district is finalised, Tribunal staff will liaise with claimants and their representatives about how the hearings will be run. The matters to be worked through include the order in which claimant groups are to be heard, where hearings are to be held, and the arrangements to be made for each hearing venue. The presiding officer is also likely to hold conferences of parties at regular intervals throughout an inquiry to settle some of these planning matters. The first conference generally takes place before hearings begin. Conferences may also be called to hear submissions from parties on procedural issues that raise legal questions.