Coming to terms with the past

The Waitangi Tribunal, once described as the conscience of the nation, is 25 years old tomorrow. Maori issues reporter ANGELA GREGORY charts its progress.


The plush velvet seats and crystal chandeliers in the ballroom of Auckland's flashest hotel, the Inter-Continental, proved too much for Joe Hawke.

It was May 1977 and he was there with about 50 Maori supporters from the Orakei Marae for the first hearing of the Waitangi Tribunal.

"We stood in the middle of the room and slowly turned around and looked at every corner in amazement," recalls Mr Hawke, now a Labour list MP. "It was way out, full of Goldies and art.

"It was simply off the wall to have Maori kaupapa [tradition] in a situation like Buckingham Palace. It was hilarious. We saw the futility of it and couldn't stop laughing."

But he was not amused when he rose to present his submissions in the first case to go before the tribunal and was told by the tribunal chairman, Chief Judge Kenneth Gillanders-Scott, that he needed a lawyer.

Mr Hawke explained that he was representing himself, but Chief Judge Gillanders-Scott said: "You can't do that."

Mr Hawke's mother leaped to her feet to challenge the judge: "Who are you to tell my son he cannot speak on our kaupapa, our submissions? He has brains between his ears and my mana to speak."

Mr Hawke was forced to take a walk down Queen St and eventually found a lawyer with the advice he needed - the tribunal was a commission, not a court, and Mr Hawke was entitled to put his case.

"I was so angry I took my time. I kept stopping to blow my nose, and coughed so much I got a sore throat. Utu [revenge] it was."

Mr Hawke spoke in Maori, forcing Chief Judge Gillanders-Scott to wait while tribunal member Sir Graham Latimer translated.

When Mr Hawke finally finished, the Orakei people were elated. "At long last they had told their story."

Mr Hawke lost that first fisheries claim, but later "beefed it up" into the successful Orakei land claim - the first brought to the tribunal since its jurisdiction was extended in 1985 to cover crown policies and practices from 1840.

In 1987, the tribunal found that the Orakei people had suffered at the hands of the Crown "one of the worst cases of cultural genocide this country has known."

It added: "Orakei is a microcosm of the country, and we have hope that our full analysis of this case will aid the settlement ... of others."

The tribunal found that the Crown's purchase of Orakei was contrary to the Treaty of Waitangi, and the claim settlement led to the return of some housing and cash compensation of $3 million.

In 1952, Maori families had been forcibly evicted from the Orakei Marae, which was wanted for a park, and relocated as tenants of 35 state homes on another part of the block.

The tribunal called the final eviction traumatic.

"Homes and buildings were pulled down and burned by the Crown. Many of the elders died within a year of relocation."

Mr Hawke remembers sitting in a fruit tree watching the houses razed.

"I said, 'Dad, there's a house on fire down on the marae ... Now there are two houses, three' ... "

The burning of the marae put fire in the belly of the 9-year-old boy.

"The Crown tore out our hearts, murdered our people ... It has a lot of sorries to say."

Mr Hawke took part in the 1975 land march led by Dame Whina Cooper from the Far North to Parliament, which was joined by thousands of Maori angry over huge land losses.

His tribunal claim was triggered when fisheries officers caught him gathering seafood at Okahu Bay for a 1976 reunion hui of the land marchers. 'They wanted to know whether I had a permit. I said it was hanging on my wall - a copy of the Treaty of Waitangi."

Mr Hawke was convicted, but in researching his defence of customary fishing rights he stumbled on the 1975 Treaty of Waitangi Act, which was soon to establish the tribunal.

"The wheels started to move."

The act was the work of Labour Maori MPs, particularly Matiu Rata who, as Maori Affairs Minister, aimed to give the treaty statutory force and hoped the legislation would be retrospective.

Instead, the Labour Government decided it would apply to the Crown's future actions, and deal only with treaty breaches subsequent to the passage of the act.

The act stated that "any Maori" or group of Maori who considered they were prejudicially affected, or likely to be so, by any act or omission of the Crown in breach of the principles of the treaty could lodge a claim with a new body - the Waitangi Tribunal.

Established a year later, the tribunal had exclusive authority to determine the meaning and effect of the treaty as embodied in the Maori and English texts and decide on issues raised by their differences

Chief Judge Gillanders-Scott, of the Maori Land Court, was the tribunal's first head, with founding members Sir Graham Latimer, head of the Maori Council and appointed on the recommendation of the Maori Affairs Minister, and Laurence Southwick, an Auckland Queen's Counsel recommended by the Minister of Justice.

When Chief Judge Gillanders-Scott retired in 1981, the chair was taken by Chief Judge (later Justice) Edward Durie, who has been credited with transforming the tribunal's procedure and philosophical approach by meeting on marae and observing claimants' protocol.

Historian Alan Ward described the tribunal's 1983 report on the Motunui-Waitara claim in Taranaki as embracing "totally new dimensions" by drawing on Maori cosmology and world views to show the nature of Maori rights and interests in a reef.

The Te Atiawa claim concerned the pollution of fishing reefs by town sewage and possible additional pollution from oil extraction.

The National Government accepted some recommendations to modify sewerage and oil pipelines systems, and Maori felt their cultural values were finally being recognised by a state tribunal with real influence.

For its first 10 years, the tribunal was legally able to address only contemporary issues, so the number of registered claims (14) was small, mainly dealing with environmental issues.

But that changed when a 1985 amendment extended the tribunal's jurisdiction back to 1840.

At the time, some Opposition MPs like Sir Douglas Graham and Winston Peters predicted that the retrospective jurisdiction would prompt a rise in Maori activism, a flow of new claims and a major Pakeha backlash.

By 1995, the number of registered claims had increased to 480, and by August last year it was 869.

About 130 claims have been dealt with fully or partially, and today the tribunal has 16 warranted members plus the chairman, Justice Durie, and deputy chairman, Chief Judge Joe Williams.

Chief Judge Williams calls the tribunal the "honest broker" between Crown and Maori.

The tribunal's formation meant that, for the first time, the history of grievances was heard in Maori terms, he says. "And there were Maori faces on the panel which judged their grievances in a process which was open, public and independent.

"That was enormous empowering for Maori ... and the reason it has been accepted into Maori communities."

It was also important that the Crown had fronted up at hearings.

The tribunal had kick-started many of the building blocks for improved relations. "The te reo claim produced the Maori Language Commission, the fisheries claim produced the Sealords settlement, the Muriwhenua claim produced the state-owned enterprise provisions for forestry protection ... the historical hearings process produced the Office of Treaty Settlements ... so it goes on."

TIMELINE


1840 - Treaty of Waitangi is signed between representatives of the British Government and more than 500 Maori chiefs.

1975 - Treaty of Waitangi Act establishes the Waitangi Tribunal and directs it to have regard to the principles of the treaty and make recommendations to give effect to them. It allows claims to be brought by any Maori in respect of actions of the Crown since 1975 in breach of the treaty.

1981 - Edward Durie appointed Chief Judge of the Maori Land Court and ex-officio chairman of the Waitangi Tribunal.

1985 - Treaty of Waitangi Amendment Act extends the tribunal's jurisdiction to allow it to hear claims relating to actions by the Crown since February 6, 1840. The tribunal's membership is expanded from three to six appointees, of whom four must be Maori.

1988 - Treaty of Waitangi (State Enterprises) Act gives the tribunal power to make binding orders in respect of state-owned enterprises' land if acquired in breach of treaty principles.

1989 - Crown Forest Assets Act provides that rentals from forested lands licensed to timber companies be held by the Crown Forestry Rental Trust, with income from the invested funds available for research of treaty claims.

1989 - Treaty of Waitangi policy unit set up.

1993 - Treaty of Waitangi Amendment Act prevents the tribunal from making recommendations relating to private land.

1995 - The Office of Treaty Settlements is established as the Government's premier agency in the negotiation of durable, fair and affordable settlements of well-founded historical grievances, enabling breaches to be demonstrated without need of a Waitangi Tribunal hearing.