Whenua Māori me Te Tiriti o Waitangi: Land occupations and claims under the Treaty
Decisions and settlements of Treaty claims
What happens when a claim is submitted?
Once the Waitangi Tribunal has accepted and registered your claim, the Tribunal will start the process of assessing the claim. The Tribunal will contact you (the claimant or claimants), citing the claim’s assigned ‘Wai’ number (short for Waitangi Tribunal claim number). The Crown and interested parties will also be notified of the claim.
If the claim submitted is similar to other claims, the claims may be grouped together into a kaupapa inquiry process so they can all be heard at once. For example, claims relating to electoral issues, flora and fauna, forestry ownership, fisheries, and broadcasting have been heard in this way.
After the relevant people are all notified, there’s a stage where research is done by the Tribunal, the claimants and the Crown.
Then hearings are held so that the Tribunal can hear evidence from you to support your claim, as well as evidence from the Crown. During a hearing, evidence is usually given by iwi members, lawyers, and historians or other specialists. Tribunal members listen to the evidence, and consider whether and how the principles of te Tiriti may have been breached.
When it’s finished assessing the claim, the Tribunal will release its findings and recommendations in the form of a report. The claimants and the Crown can then consider how they will respond to the Tribunal’s report.
The Tribunal’s report can be used by the government to negotiate an agreement with the claimants, called a Treaty settlement.
What is a Treaty settlement?
Settlements acknowledge historical claims (including breaches of the Treaty and the various effects of this wrongdoing on Māori), and offer a settlement package that includes financial compensation and other measures to address the harm that was done.
Past settlements have enhanced iwi cultural and commercial development, including for Waikato Tainui, Ngāi Tahu, and Ngāti Whātua ki Ōrākei. The settlements have helped to restore the economic base of iwi and, more broadly, to create mechanisms to protect iwi and Māori interests.
Recently we have seen iwi get innovative through settlements – for example, obtaining legal recognition for both Te Urewera and the Whanganui River as legal “persons”. Granting legal personality to awa, maunga or rohe in this way is intended to give iwi the legal right and means to protect them (see the chapter “Māori land”, under “Legal personality for maunga, awa and other natural features of the land”).
Settlement negotiations are facilitated by Te Arawhiti: The Office for Māori−Crown Relations. Each settlement is different, to acknowledge and address different forms of loss, but they almost always include:
- an account of what happened in the past, or the substance of a breach in a contemporary claim
- a written apology by the Crown
- some form of compensation or other redress, usually including money and, if land was confiscated, the return of Crown-owned land.
How long does the Waitangi Tribunal process take?
The Tribunal process can take many years before a claim is heard and settled. This is mainly because there are numerous claims, the Tribunal has been under-resourced, and often the issues are complex and also have far-reaching implications.
For activists it is therefore worth considering the Treaty claim pathway as one part of a wider strategy. Your strategy might include elements of direct action alongside the slow but vital work of Waitangi Tribunal investigations.
The most effective way to get some traction going down the Treaty claim pathway is to look at the Tribunal’s urgency process, as this may help to get your claim heard faster or bumped up the list.
The case of Ihumātao: Te Tiriti claims as part of
a wider activist strategy
Recently we have seen Māori-led, community-supported activism make use of the Waitangi Tribunal process and also international conventions as part of a wider political strategy and campaign.
The SOUL campaign and its Treaty challenge
The Save Our Unique Landscape (SOUL) campaign was founded in 2015 by rangatahi of Makaurau Marae who opposed the development of a Special Housing Area (SHA 62) in Ihumātao, near Auckland International Airport. In this high-profile campaign, whānau worked to protect unjustly confiscated whenua, which fell outside the Crown’s Treaty Settlement Policy because it was privately owned.
Whānau sought an urgent hearing from the Waitangi Tribunal, claiming the Crown had fast-tracked developer-friendly housing legislation (the Housing Accords and Special Housing Areas Act 2013) that undermined its Tiriti obligations.
Whānau argued that this legislation prevented proper consultation with Māori (the people most affected by the development), which is a duty under the Treaty principle of partnership. Whānau claimed their taonga were threatened, in that a corporation wanted to build a housing development on ancestral whenua that is part of a rare cultural heritage landscape, and that this breached the Tiriti principle of active protection. Finally, whānau claimed that kaitiakitanga would be severely compromised, again a breach of the protection principle.
The Treaty claim helped whānau put their grievances on the record
Although this Treaty claim is still going through the Waitangi Tribunal process, making the claim created an important opportunity for whānau to put their concerns and grievances on the historical record.
This action matters, because it demonstrates the honour and commitment of the Māori Treaty partner to ensuring that Tiriti promises are upheld. As a form of political action it also helps to sustain resistance and create publicity to support other efforts in the same campaign.
Making effective use of UN processes
Whānau also successfully engaged in United Nation processes, three times making presentations meetings in New York and Geneva. These presentations were supported by academic advisors and were made possible through crowd-funding and UN sponsorship, demonstrating the value of a broad strategic approach.
As a result, in 2017, the UN Human Rights Committee for the Elimination of Racial Discrimination (CERD) recommended to the New Zealand government that it review actions relating to Ihumātao and ensure proper consultation with all Māori affected by the proposed housing development.
Whānau stand their ground – the Crown intervenes
The Crown eventually intervened in this case after the police came onto the whenua in July 2019 to evict the kaitiaki – the land protectors. The determination of whānau to stand their ground, aided by intense media scrutiny and thousands of supporters, led the Crown to formally mandate a process facilitated by the Kingitanga that has since enabled consultation with the hau kāinga (the home people). That process is still underway.