Tribunal releases report on claimant funding
The Waitangi Tribunal’s latest report, Report on Whakatika ki Runga, a Mini-Inquiry Commencing Te Rau o te Tika: The Justice System Inquiry, was released today in pre-publication format. It finds that the Crown breached its Treaty duty to ensure that Māori claimants have the necessary resources to participate fully in all Tribunal processes. Claimants have been seeking a solution for several years, including through an urgent inquiry. Hearings finally took place in the latter half of 2022 as part of the newly constituted inquiry into the justice system, known as Te Rau o te Tika. The claimants argued that the unavailability of funding compromises their ability to make and pursue their Waitangi Tribunal claims and that this undermines the institution as a pillar of New Zealand’s constitution.
The Tribunal heard claimants in 53 claims on why the current arrangements for funding claimants are not working and do not meet Treaty standards. Claimant lawyers called over 40 witnesses, many of whom said the inadequate funding arrangements caused hardship and distress and discouraged participation.
The Crown called 11 witnesses from eight separate government agencies. Their evidence explained those agencies’ point of view on the funding arrangements that operate in eight kaupapa inquiries. (Kaupapa inquiries is the name given to inquiries focusing on subject areas of national significance like health services and the justice system.) The Crown conceded problems with current funding arrangements but argued that they were good enough in Treaty terms.
The Tribunal did not accept the Crown’s characterisation of the problems. It details in its report the many flaws in the present ad hoc funding arrangements. It was particularly concerned that officials knew about the inadequacies but Ministers did not act on their advice. The Tribunal says that, when the Crown fails to resource Māori properly to participate in its inquiries, the purpose of the Tribunal is seriously undermined. It is up to the Crown, which created the Tribunal for ‘the observance, and confirmation, of the principles of the Treaty of Waitangi’, to ensure that claimants can access its processes easily, and in a culturally comfortable way. There is simply no point in having a Waitangi Tribunal otherwise.
The Tribunal says that it is now urgent that the Crown and Māori sit down together to design suitable funding arrangements. It is not acceptable, in this area of policy that primarily affects Māori, for the Crown to come up with policy and leave ‘consulting’ Māori to the end. The Tribunal also recommends a standardised funding protocol until the long-term arrangements are agreed.
The claimants also sought to have the Ministry of Justice pay for documents filed in te reo Māori to be translated into English. Translations are required because there are participants in the process who cannot read Māori. Claimants told the Tribunal that this was not their fault. If the Tribunal requires translations, the Ministry of Justice should bear the cost. The Tribunal agreed. It strongly stated the imperative for the ministry to prioritise and fund this work. Claimants and their lawyers have a right to file submissions and evidence in Māori, and the Crown must support the use of te reo Māori in the Tribunal, whether orally or in writing. It was, after all, the Tribunal that, 40 years ago, found te reo Māori to be a taonga under the Treaty.
The panel members for Te Rau o te Tika are Judge Carrie Wainwright, Dr Paul Hamer, Dr Ruakere Hond, and Dr Hana O’Regan.
Report on Whakatika ki Runga, a Mini-Inquiry Commencing Te Rau o te Tika: The Justice System Inquiry – Pre-publication Version is now available to download as a PDF file:
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