22/09/2026
Time to release treaty tribunal review
The Treaty of Waitangi is on the ballot again, with ACT calling for the Waitangi Tribunal to be stripped of its power to hear contemporary claims and to be wound up completely once it has heard outstanding historic claims.
It comes without the public being given the chance to read a review of the Treaty of Waitangi Act 1975 delivered a year ago and still waiting to go before cabinet.
If it had delivered the king hit its sponsors were hoping for, it’s likely it would be out by now.
The ferment ignores the interplay between claimants through the tribunal, the courts and parliament which has helped shape New Zealand society and government over the past 40 years.
In 1987 the New Zealand Māori Council went to the court of appeal to challenge what would have been the transfer of more than 4 million hectares of land to newly-created state owned enterprises.
At the time there was an estimated 1.18 million hectares of Maori freehold land, or just over 3 percent of New Zealand’s total land area.
The genesis of the Lands Case was a plea by Muriwhenua claimants at their first hearing in December 1986 that even if their claims were found to be valid, the transformation of government departments into the new commercial structures would mean the Crown would be unable to provide just compensation.
In an unusual step the tribunal sent off an interim report that evening, timed to arrive before parliament passed the State-Owned Enterprises Act.
After consulting with Muriwhenua’s Matiu Rata, the Government inserted a new section 9, “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”
The term “principles of the treaty” first entered legislation in Rata’s 1975 Act setting up the tribunal as a standing commission of inquiry with the exclusive authority to determine the meaning and effect of the Treaty as embodied in the two texts.
That makes getting rid of the tribunal now a problematic step. If there is no authoritative interpreter of the Treaty, does it still exist?
The five judges of the court scoured past tribunal reports – at that stage on contemporary claims, as its remit to cover claims from before 1975 was not added until 1986 – to find applicable principles.
Chief Justice Robin Cooke took the view that in interpreting the 1975 Act, “a broad, unquibbling and practical interpretation is demanded.”
In finding for the council on the need to protect claims, he introduced the concept the Treaty signified a partnership between races.
This was offered as a contrast to policies by successive Governments up to 1975 which amounted to integration, amalgamation of the races and the assimilation of the Māori to the Pakeha.
“Now the emphasis is much more on the need to preserve Maoritanga, Māori land and communal life, a distinctive Māori identity.”
The duty of the Crown included “active protection of the Māori people in the use of their lands and waters to the fullest extent practicable.”
While there was no obligation to consult on every legislative or administrative step which may affect Māori, parliament had put the transfer of Crown land state enterprises in the law so “as a reasonable Treaty partner” the Government should consult on how the policy would be implemented.
That indeed is what happened, with the subsequent negotiations leading to mechanisms which allowed the SOEs to get on with their business and in some cases subsequent privatisation.
These included a law change allowing the Waitangi Tribunal to make binding recommendations on land held by SOEs – a power which has not so far been exercised, as it provided a powerful incentive for the Crown to find other ways to satisfy claimants.
The Lands judgment also set limits to what claimants should expect.
“The principles of the Treaty do not authorise unreasonable restrictions on the right of a duly elected Government to follow its chosen policy. Indeed to try to shackle the Government unreasonably would itself be inconsistent with those principles. The test of reasonableness is necessarily a broad one … The parties owe each other cooperation,” Cooke wrote.
While politicians who have promised their voters change may be upset at the rash of claimants seeking urgent hearings on reforms, the Government has already acted to determine if the Waitangi Tribunal is still fit for purpose.
Upholding a commitment made in the coalition agreement between National and New Zealand First, in May last year it appointed an Independent Technical Advisory Group chaired by Bruce Gray KC to review the Treaty of Waitangi Act 1975.
Its report was due to be delivered last September, with legislative proposals intended to be introduced before the end of the year.
The report should be released now so voters can decide whether the problem is with the tribunal or with the politicians.
