Fifty years of the Waitangi Tribunal

This week marks 50 years since the establishment of the Waitangi Tribunal. 

Here, Carwyn Jones looks at the Tribunal’s history and remit at a time when it’s under “sustained attack”.

 

On October 10, 1975, the Treaty of Waitangi Act received the Royal Assent and came into force. In the half-century that has passed since then, the Tribunal has made an immense contribution to our understanding of Te Tiriti, our history and our national identity, and has shown us a pathway towards more just constitutional relationships in Aotearoa.

As the Tribunal and Te Tiriti are subjected to unprecedented attacks by the current coalition government, we should remember the vital role that the Tribunal plays. It helps New Zealanders face each other and our history with clear eyes, and strengthens Te Tiriti and the relationships between our communities.

Before it was given the jurisdiction to consider historical claims, some of the early Tribunal reports addressed environmental issues, such as the discharge of sewage, effluent, and industrial waste in the Motunui-Waitara Report (1983), the Kaituna River Report (1984), and the Manukau Report (1985).

In 1985, when the Tribunal was granted the ability to hear claims about Crown actions going back to 1840, it began engaging with major historical claims relating to loss of lands and natural resources. This became the primary focus of the Tribunal’s work for at least the next 20 years, and is perhaps the area of its work with which people are most familiar.

These inquiries, eventually organised around large geographical districts, revealed the history of lands and peoples in ways that was sometimes confronting, but always enlightening. It is no exaggeration to say that, through these reports, the Tribunal fundamentally changed the way in which we understand our history.

The Tribunal has also always made important interventions in contemporary policy issues, from the Report on the Te Reo Māori Claim (1986), through reports addressing the Māori electoral option (1994), radio spectrum management (2000), the foreshore and seabed policy (2004), intellectual property and traditional knowledge (2011), Oranga Tamariki (2021), and the response to the Covid-19 pandemic (2023).

Just within this current term of government, the Tribunal has issued urgent reports on the disestablishment of Te Aka Whai Ora (the Māori Health Authority), the Principles of the Treaty of Waitangi Bill and the review of Treaty clauses in legislation, the removal of specific provisions in the Oranga Tamariki Act, changes to Māori wards, and the Regulatory Standards Bill.

Major ongoing inquiries are currently underway into freshwater and geothermal resources, military veterans, health services and outcomes, housing policy and services, the justice system, constitutional matters, and education services and outcomes.

While the government has not always acted on Tribunal recommendations, the evidence and analysis these inquiries provide have helped to better inform the public of the issues at stake and have often had a profound effect on the public conversation.

Yet, in this 50th anniversary year, the Tribunal and Te Tiriti are under a sustained attack from perhaps the most anti-Tiriti government that we’ve seen since the Tribunal was established.

The Tribunal’s role of scrutinising government action was always likely to be irritating to a government that can’t rationally justify many of its decisions and doesn’t want to be held accountable.

Among a much wider set of policies that will harm Māori communities and the Tiriti relationship, the government has specifically attacked the role Te Tiriti and the Tribunal have in New Zealand public life.

The now rejected Principles of the Treaty of Waitangi Bill was intended to strip Te Tiriti of any constitutional or legal effect. The radical distortion of both the words of Te Tiriti and decades of precedents from the courts and the Tribunal that was proposed in the bill would have, among other things, rendered the Tribunal’s jurisdiction virtually meaningless. The Regulatory Standards Bill, currently with the select committee, similarly aims to remove the legal effect of Te Tiriti and negate the rights that Te Tiriti guarantees.

There are also two reviews underway that directly address the work of the Waitangi Tribunal and the application of the principles of the Treaty.

The first of these is a review of the Waitangi Tribunal’s governing legislation, the Treaty of Waitangi Act 1975. This review arises from a slightly confused commitment in the coalition agreement between the National Party and New Zealand First. That commitment is to “amend the Waitangi Tribunal legislation to refocus the scope, purpose, and nature of its inquiries back to the original intent of that legislation.”

It appears that at least some members of the government think that the Tribunal is straying beyond its original purpose by inquiring into current policy issues. But, of course, when the Tribunal was first established in 1975, it did not have jurisdiction to inquire into historical claims. Its only purpose at that time was to address contemporary policy matters. It’s therefore unclear exactly what the intention of the coalition commitment is, although the aim of limiting the Tribunal’s role seems obvious.

The National Party and New Zealand First coalition agreement also includes a commitment to “conduct a comprehensive review of all legislation (except when it is related to, or substantive to, existing full and final Treaty settlements) that includes ‘The Principles of the Treaty of Waitangi’ and replace all such references with specific words relating to the relevance and application of the Treaty, or repeal the references”.

A review focusing on Treaty principles provisions in 23 specific statutes has begun. Again, the primary objective seems to be to limit the impact of Te Tiriti.

Amid all of this, the Waitangi Tribunal continues to do its work, providing a forum for rights to be recognised and for the practical application of Treaty principles to be considered.

New Zealanders can rightly feel great pride in the Waitangi Tribunal, the vision of those who helped to establish it, and the leadership of committed tangata whenua and tangata tiriti that has ensured it has adapted and remained responsive in changing and often difficult circumstances.

The Tribunal has enabled us all to better understand the Treaty partnership and the relationship that was entered into in 1840 and to see that knowing our past helps us to more confidently navigate future pathways together.

The foundation that the Tribunal has laid down over its 50 years is undeniably important and impressive, but, like Te Tiriti itself, its real value is not in the past, but in the potential of what lies ahead.

Dr Carwyn Jones (Ngāti Kahungunu) is Pūkenga Matua (Lead Academic) of Ahunga Tikanga (Māori Laws and Philosophy) at Te Wānanga o Raukawa, and Honorary Adjunct Professor, Te Kawa a Māui (School of Māori Studies) at Te Herenga Waka Victoria University of Wellington. He is an editor, alongside Maria Bargh, of the new collection of essays, 50 Years of the Waitangi Tribunal – Whakamana i te Tiriti.

E-Tangata, 2025