Who May Make a Claim to the Waitangi Tribunal?
Any Māori person may submit a claim to the Waitangi Tribunal. (For this purpose, a 'Māori person' includes someone who is descended from a Māori.) A claim may be submitted on behalf of a group of Māori, including an organisation such as a rūnanga, but an organisation may not be a claimant on its own.
What May a Claim Be About?
The Waitangi Tribunal may inquire only into certain matters. Section 6 of the Treaty of Waitangi Act 1975 sets out the grounds for making a claim.
First, a claim must relate to one or more of the following matters:
- an Act of Parliament, an ordinance, a regulation, or another statutory instrument;
- a practice or policy adopted or proposed by or on behalf of the Crown;
- an action or omission by or on behalf of the Crown, or proposed by or on behalf of the Crown.
Secondly, the claimant must demonstrate how the law, or the practice, policy, action, or omission of the Crown:
- is or was inconsistent with the principles of the Treaty of Waitangi; and
- has prejudicially affected the claimant, or the group on whose behalf the claim is made.
Claims may relate to Treaty breaches dating back to 6 February 1840, when the Treaty was signed.
What May a Claim Not Be About?
There are certain things that the Waitangi Tribunal may not inquire into. For example, it may not inquire into purely Māori versus Māori disputes, because these are not matters that section 6 of the Treaty of Waitangi Act 1975 authorises the Tribunal to consider. Nor does section 6 allow the Tribunal to inquire into proposed legislation that is in the form of a Bill that has been introduced into Parliament.
The Tribunal cannot register and inquire into claim issues that have already been settled by the following legislation:
- Affiliate Te Arawa Iwi and Hapu Claims Settlement Act 2008
- Central North Island Forests Land Collective Settlement Act 2008
- Ngāi Tahu Claims Settlement Act 1998
- Ngāti Awa Claims Settlement Act 2005
- Ngāti Mutunga Claims Settlement Act 2006
- Ngāti Ruanui Claims Settlement Act 2003
- Ngāti Tama Claims Settlement Act 2003
- Ngāti Tūrangitukua Claims Settlement Act 1999
- Ngāti Tuwharetoa (Bay of Plenty) Claims Settlement Act 2005
- Pouakani Claims Settlement Act 2000
- Te Arawa Lakes Settlement Act 2006
- Te Roroa Claims Settlement Act 2008
- Te Uri o Hau Claims Settlement Act 2002
- Waikato Raupatu Claims Settlement Act 1995
Or with regards to the following matters:
- commercial fishing or commercial fisheries;
- the Turangi township; and
- matters which fall within the jurisdiction of the Māori Land Court or the Māori Appellate Court.
These are matters over which the Crown has negotiated settlements with particular claimants, and the Tribunal's authority to inquire into them has been removed by statute. As other claims are settled in the future, it can be expected that the settlements will provide that the Waitangi Tribunal - and the courts - will no longer have the authority to inquire into those matters, and that Parliament will pass legislation to give effect to those agreements. None of the settlements listed prevent the Waitangi Tribunal from hearing contemporary claims by or about these groups, except commercial fisheries.
Claims may relate to land that is privately owned and the Tribunal may inquire into and report on such claims. However, unless the private land is memorialised, the Tribunal may not recommend:
- that the land be returned to Māori ownership; or
- that the Crown acquire it.
In these circumstances, the claimants may seek other compensation, such as the return of alternative Crown-owned land or monetary compensation. (Memorialised lands are lands owned, or formerly owned, by a State-owned enterprise or a tertiary institution, or former New Zealand Railways lands, that have a notation, known as a memorial, on their certificate of title advising that the Waitangi Tribunal may recommend that the land be returned to Māori ownership.)
Cut off for Submission of an Historical Claim
By section 6AA of the Treaty of Waitangi Act 1975 (as inserted by section 6 of the Treaty of Waitangi Amendment Act 2006), the Waitangi Tribunal is not permitted to register claims submitted on or after 2 September 2008 that are either new historical Treaty claims or historical amendments to contemporary claims.
A historical claim is defined by the Act as ‘a claim made under section 6(1) that arises from or relates to an enactment referred to in section 6(1)(a) or (b) enacted, or to a policy or practice adopted or an act done or omitted by or on behalf of the Crown, before 21 September 1992’.
Submitting a Claim to the Tribunal
Claims should be sent to the Registrar at the Waitangi Tribunal. There is no fee for submitting a claim, and there are no forms that must be used. It is not necessary for a claim to be researched before it is submitted; indeed, it is common for claims to be researched after they have been registered.
However, to be able to register a claim, the Tribunal must be able to see that it relates to matters that it has authority to inquire into. In other words, the claim must set out, at least in a general way, which laws (or other statutory instruments), practices, policies, actions, and omissions it relates to. The claim should also set out how these matters are inconsistent with the principles of the Treaty of Waitangi and how the claimants have been prejudicially affected.
When a claim is first submitted, it is not usually necessary to set out the compensation (or the remedies) being sought, although those details may be provided. Sometimes, claimants initially seek only a finding from the Tribunal that their claim is well founded and ask for permission to propose detailed remedies at a later date. However, where claimants want the Tribunal to exercise its powers to make binding recommendations, this should be set out in the claim (sample claim form).
Alternatives to Submitting a Claim
Before submitting a claim, intending claimants should consider whether it is necessary to do so or whether it is the most effective course of action for them.
First, there may be an existing claim that the Tribunal has already registered covering the same issues. Instead of submitting another claim, it may be possible to join with or support the existing claim. Even if that is not possible, the Tribunal will still hear people who have advised it that they have an interest in the matters that the claim raises and that they wish to be heard, whether or not they have submitted their own claim.
Secondly, there may be alternative ways of airing concerns and reaching a satisfactory resolution of them. For example, it may be possible to raise those concerns directly with the organisation or body involved and to reach a solution through negotiation or mediation. Sometimes, it is possible to lobby a local member of Parliament to seek a solution to an issue, or it may be faster and more effective to seek compensation in the Māori Land Court or other courts.
Before submitting a claim, it should be remembered that:
- in most instances, the Tribunal may only make recommendations that do not bind the Crown.
- the Tribunal is not a court. It cannot, therefore, make orders to prevent something from happening or to compel something to happen.
- the Tribunal's inquiry process can be relatively slow and may not produce immediate results. Depending on the size of an inquiry and the issues raised in it, it may take a number of years for the Tribunal to complete an inquiry and issue a report. It then takes some time for the Government to consider the Tribunal's report and decide what (if any) action it will take.
- there are costs involved, including legal and research costs and the time spent preparing for and attending hearings.
- the Tribunal is able to decide not to inquire into a claim if it believes that there is an alternative remedy available to the claimant that it would be reasonable for her or him to exercise.
Amending a Claim
It is common for claimants to amend or add to their claim after it has been submitted to the Tribunal. Generally, this occurs after research has been completed and is done to ensure that the claim includes all the issues that the research has covered or it occurs after a lawyer is appointed so that the claim is clearly drafted in the most effective way. In any case, the Tribunal expects that claimants will have their claim in a final form before it is scheduled for hearing. In some instances, the Tribunal may direct claimants to file an amended claim. An amended claim replaces all previous statements of the claim, while an addition simply adds new issues to the claim and is read in conjunction with the current statement of claim. An amendment or addition should be sent to the Registrar; there are no set forms that must be used and there is no filing fee to be paid.
Withdrawing a Claim
A claimant may at any stage withdraw a claim by advising the Registrar in writing that he or she wishes to withdraw it. The Tribunal will issue a memorandum-direction noting that the claim has been withdrawn. Where the intention is to withdraw only part of a claim, this should be done by filing an amended statement of claim or by advising the registrar in writing of the specific part that is to be withdrawn.
Where a claim has more than one named claimant, the Tribunal's standard practice is to require the signature of all named claimants on documents amending, adding to, or withdrawing the claim.
However, a lawyer who is representing claimants may file documents with the Tribunal on behalf of her or his clients. Where a lawyer represents claimants, the Tribunal assumes that the lawyer is acting with the authority of those claimants.