Robin Grieve: Inside the Waitangi Tribunal

A Waitangi Tribunal hearing taking place on a Marae not far from my home presented me with the opportunity to see for myself what happens at these hearings. I had up to now been somewhat dismissive of the Waitangi Tribunal and what I regard as its questionable decisions, but now I had the chance to see for myself how these decisions were made and what sort of evidence was presented.

I made a conscious effort to attend the hearing with an open mind because I wanted to be informed and also because I knew some of the Maori claimants well enough to want to respect them with my objectivity.

It took me a little while to get an understanding of the process and even after two days I would have to acknowledge my understanding was less than complete, with much of the dialogue in Maori. I drew the conclusion it was some sort of pseudo court with people they referred to as judges and many lawyers but the law and the process was unlike anything I was familiar with. The Crown was represented by two fresh faced young lawyers who were very restrained and respectful in what were referred to as cross examinations, although they sang well, with all participants required to sing a song at the end of the day. 

The first claimant I heard had two grievances. The first was straightforward enough and involved a small parcel of land which was sold out of Maori ownership for a Maori school in the early 20^th century. When the school was closed, the land was sold by the Education Department and was now a privately owned residential property. The claimant believed that it should have reverted to Maori ownership when the school was closed. A point of contention was whether the land was originally sold freely by the Maori owners or given by them to the State for a school. The supporting documentation showed an agreement to purchase the land between the Education Department and the Maori owners but as the claimant pointed out this was not evidence that the money was actually paid. With the original Maori owners long dead this could probably never be proven he contended. I thought that had the original owners not been paid, as the claimant suggested might be the case, they would have made a fuss at the time. The claimant produced no evidence of any concern by the original owner, presumably believing that just suggesting payment may not have been made was sufficient for a claim to succeed.

Each claimant had their own lawyer who had helped them prepare their evidence. One would think a lawyer would know that if the success of your case rests on proving the land had been given by Maori to the Crown, as opposed to sold, and that the only evidence existing was a sale and purchase agreement between the Education Department and the Maori owners, that you don’t have a case.

It also seemed likely to me that when the school closed and the original owners or their descendants did not seek the land back, it could indicate they were not unhappy and believed that the new owners were entitled to do with the land as they wished. This point however was not put to the claimant by the Crown lawyers.

In fact the case was left up in the air by the claimant and the Tribunal which was a shame because I was now genuinely interested in getting to the bottom of it. It seemed straight forward to me in that once the facts of the matter were established the merit of the claim would be determined, but no one seemed interested in doing this, least of all the claimant who seemed only interested in putting the proposition that while records show that a sale and purchase agreement did exist, this did not mean that money had changed hands. He seemed to think that this was all the Tribunal needed. The large audience were certainly satisfied, with many ‘tut tuts’, and ‘bloody Pakehas’ resonating among the many kia ora’s contributed by the audience while the claimant gave his evidence.

I wanted more, why not search the financial records of the Department of Education? If the land was freely sold by the original Maori owners to the Education Department that would mean the Department was free to sell it to whoever they wanted and there was no cause for claim. If the land had been given by the Maori owner to the Department for the purpose of putting a school on it, as the claimant was suggesting happened, then the claimant had a legitimate case I would have thought. I felt that this issue could be easily resolved by looking at the financial reports of the Education Department but the claimant had not done this. I did not see this as exclusively a Maori problem either. “This is just a property right issue” I said to a person I knew sitting in front of me, why don’t they just go to court?” The answer was that “we Maori don’t have the money to do that”.

After giving his evidence the claimant was asked by one of the many lawyers there representing Maori, to comment on what she described as the ‘inherent racism’ that his evidence highlighted. The claimant had no idea what she was talking about so she elaborated. “Having land taken under the public works act and not given back happened more to Maori than non-Maori, so that must prove racism” she said. The claimant was not sure what he was supposed to do in response to this highly provocative allegation. “Do you agree?” she asked firmly.

The claimant still seemed unsure but meekly agreed to the lawyer’s racism statement although I am not sure he really understood what he was agreeing to or that his agreement was necessary. The lawyer had made her point in her statement which was sort of left field in any case, considering it was never established that this claim had anything to do with the public works act.

This was one of many examples where I felt the claimants were genuine but they were taken advantage of by politically motivated lawyers. Each claimant just a pawn in the real script of the Waitangi Tribunal. The real script of the Tribunal was not apparent to me yet, but it seemed to have less to do with the claimants and their evidence, and more to do with the agendas of the lawyers to create and promote grievance.

The barrage of leading questions by the lawyers to each claimant after they had given their evidence had the effect of turning it from what the claimant genuinely believed to be the problem to what the lawyer wanted the Tribunal to hear was the problem. ‘Don’t worry about the school land, there is racism out there and that is the real problem’. With each blatantly leading question I was reminded this was not a real court, although there was a pretence that it was with the word ‘judge’ used quite a lot, and the claimants were ‘cross examined’ by Crown lawyers who were very kind and did not appear to be aggressively defending the Crown at all.

The claimant’s second grievance involved a power station that was installed on the river. It had prevented eels from swimming back up the river to spawn. He had worked with the power company to get a race built for them. He seemed very interested in the eels and had put a lot of time and effort in to ensuring they could get up the river, even doing it with buckets when the race was in disrepair. He was genuine in his concern for the eels but I am not sure why the power station was a breach of the Treaty and justified his request for free power for Maori. He did have a fair point about some land that surrounded the power station, which was taken under the public works act and not used for the intended purpose, and now was privately owned farmland.

The word taken was used quite a lot in reference to land, as if it was snatched somehow when in fact it was compulsorily purchased. Under the law when land is no longer needed for the purpose for which it was taken it must be offered back to the original owner for them to buy it back. That seems fair to me and is what all New Zealanders have, so his claim that it should be given back is more than a little cheeky. Had he claimed that the original Maori owners should be allowed to purchase the land back, I would have supported him, after all they should.

The evidence by each claimant was read word for word from a document that each lawyer and the Tribunal members all had. It was a painstakingly slow process, although no one seemed in a hurry. The taxpayer presumably paying all and sundry there by the hour.

When the claimants had finished giving their evidence the lawyers asked questions. This was the most entertaining part of the process as the claimants were generally well humoured and witty. This claimant was asked if the Crown had prevented him from exercising kaitiakitanga over the river by preventing him from doing what he wanted with it. “No” he said proudly “because even if they don’t let me do it, I just bloody do it anyway” he said to much laughter from the audience. This pride amongst the claimants was evident throughout the hearing, they had the attitude that they did not see themselves as subservient and they were the masters of their own lands. This answer did not suit the lawyer who resorted to the leading question technique and she said, “the Crown by putting that power station there has robbed you of  kaitiakitanga of the river which is not what was supposed to happen under the Treaty is it” she said forcefully.” No” the claimant said rather timidly and unsurely, all his previous pride now gone.

After this claimant had finished there was singing, as there was after each claimant had finished. The claimant would start singing and several people would get up to support them. 

The next claimant was claiming the Crown had breached the Treaty because it had not protected Maori taonga being lost overseas and at issue for him was a wooden Maori head held in another country. This person was interested in taonga and seemed to have some role in looking after it. He described finding some taonga in a new subdivision development and he was angry that he had to register this taonga with the Maori land court. Mention of the Maori Land Court caused  outcry from the public sitting in the marquee which called out “Pakeha Court, it took our lands”  I presumed that the Maori Land court has some role in keeping track of all the taonga, which is presumably how the Crown attempts to fulfil its Treaty obligation to protect the taonga.

The claimant objected to having to register the taonga with the ‘Pakeha Land Court’, “this taonga is under our protection” he declared, “I should not have to cow tow to the Pakeha.” I did not follow how he could complain about the process of registering taonga with the Maori Land Court, which it seems is the Crowns way to fulfil its Treaty obligation to protect taonga, and in the same breath charge the Crown for not protecting taonga. I struggled with his logic, or lack of it. Either you want the Crown to take responsibility for your taonga or you don’t. If you do, register it with the Maori land court happily, if you don’t then don’t and what is more don’t blame the Crown for your own loss of taonga.  

This lack of logic permeated right through the hearing with claimants standing before the hearing panel demonstrating pride and a sense of self determination over their own land and their lives, they did not want the Crown or the local council telling them what to do with their land or possessions, yet they blamed the Crown and the Council for breaching the Treaty by not preventing past Maori from making decisions which led to loss of land and taonga. Claiming present restrictions and interferences in what they do with their land are a breach of the Treaty and that not having them is also a breach is illogical. It is hard to understand how they expect the Crown to protect them without exercising control over them.

The next claimant was a young man who spoke passionately in Maori initially. His story was sad in many ways and I felt for him to start with. He had wanted to build a house on the Marae land but had been frustrated in his attempt to get a mortgage through the Government guarantee scheme which provides for Kiwibank to lend money for housing on Maori land. His problem was that the Council had refused to allow another house on the property because there were too many on it already. Without this consent the bank would not take a mortgage. “It is our land and we should be able to do what we want with it” he said to cries of support from all around the tent. I agreed with him, in fact I felt like handing out ACT Party membership forms because these people, unlike most other New Zealanders, seemed to find it offensive to have a council or government tell them what they can or can’t do with their own land. Most New Zealanders think nothing of having their property right undermined in this manner. I was a kindred spirit I felt one with these people, at last people who believe councils and governments have no right to dictate how we use our land, but then before my feeling of kinship with the claimants had a chance to cement, the woman next to me screamed out angrily “racist Pakehas”, as if councils and racist Pakehas are one and the same. I felt torn, do I defend the council from this scurrilous attack? I have no time for councils they are the last thing I would defend but not even a council deserved such derision.

“Just go ahead and build it” one audience member called out “bugger the Pakehas” Again I thought it strange that the council is seen as something which is Pakeha. Of course the problem for this claimant was that the bank would not give a mortgage, even through the Government guarantee scheme, without having consent and the council would not give consent. “Racist Pakehas” called out the woman seated next to me again, this time as an attack on the bank which ‘doesn’t understand Maori’ according to the claimant. A good point I thought so why don’t Maori use their Treaty money to set up a bank which did understand Maori and did not need what they called Pakeha things, like council consents and financial security?

The next claimant alleged that the Treaty had been breached when a road realignment had seen storm water directed on to land held in trust for Maori as a water source. These Poroti springs I am very familiar with as I am a shareholder in an irrigation company which sources water on land below the Maori land from which the springs flow. The Poroti springs come out on land which was put in to trust and administered by Maori to preserve a water source for local Maori, at a time when there was no reticulated water.   

The land on which the springs  are situated is at the bottom of the hill and while originally all the water running off the road must have run on to it, water can only go downhill after all, the realignment had meant the run off was more concentrated coming through one culvert, not two. The solution provided by the road construction engineers to diffuse the water with hay bales was treated with much contempt and derision by the claimant and the audience.

“Who owns the land where the springs are?” was a question put to the claimant by the Crown lawyer. The claimant had no idea who owned it which seemed odd to me when he was the one making the claim.

He did have an association with the land though, which is largely unkempt now. He talked of a time when it was well looked after. As a boy he used to help his grandfather with a vegetable garden on the land. This was another common theme with many claimants and their commentary talking fondly of a time in the past when things were better and complaining that these times were lost.

“Do you have a vegetable garden now that you tend with your own children like your grandfather did with you?” asked the Crown lawyer. “No” he replied” it would be nice but it is just easier to go to Pak n save”. That was what it was really all about I thought because much of what they claimed to be lost, was not taken from them, it was given up by them. The Waitangi Tribunal process was just a place where loss had a home, loss of land, loss of independence, loss of ‘the good old days’ and this was a place for them to voice their loss to the Tribunal and somehow, all be it indirectly, blame the Crown and racist Pakehas for the losses they themselves had given up.

“I am just looking at the map here” said one of the Maori lawyers “and it looks to me like they have left all this Pakeha land alone that is all around this Maori land, and so all the Pakeha’s water is dumped on Maori land”. Kia ora’s erupted all around me as the audience cheered, I braced for another “racist Pakehas!” from the woman next to me but this time she was silent. This lawyer had impressed me up until then as he was personable and well-spoken, but no reasonable person could believe that all the water that runs off roads is Pakeha water, especially as he a Maori would have driven along that very road that morning himself to get to the hearing. No intelligent person surely could believe that road engineers can defy gravity and direct water anywhere but downhill, and that if they could choose between directing it on to Maori land or Pakeha land that they would choose Maori land.  If he did believe that he would have to be both completely stupid on matters of gravity and water and sickeningly cynical towards Pakehas that they would do that. It also poses the question that he, despite being a lawyer himself, did not think it possible that the road engineers might themselves be Maori.

The biggest surprise of the day came after his statement when the woman next to me said in a low voice, “doesn’t he know that water runs downhill?”

I don’t think this lawyer believed his own commentary, he was just doing his job and it was part of the script of Tribunal. His job was not to extract truth it was to play to the crowd, score points and feed anti Crown and anti Pakeha rhetoric in to the procedure. Facts were not that important and not needed to serve the Tribunal’s purpose.

The final day ended with lots of singing with each lawyer, Tribunal member and official all singing in turn before heading in to a Kai Hakari (feast). The atmosphere throughout the hearing had been festive and light hearted although hateful toward Pakeha and the Crown at times.

For me I could see that the claimants had felt listened to and had appreciated that, but beyond this my impressions were negative. There seemed little merit or logic in any of the claims, any supporting evidence was ill prepared, there was very little probing by the Crown lawyers in to the gaping holes in the claimants’ evidence, the lawyers used each claimant to get some point across that was nothing to do with the claimants case but everything to do with the lawyers anti Crown and anti Pakeha agenda.

The Waitangi Tribunal is a curious thing, not a court, not a place where the merits of a case are thrashed out to their conclusion, it is a show with a script that appeared to me to be to take whatever claims were presented to it, no matter how illogical, and use them to further the rhetoric that Maori have lost a lot and that even that which they gave up freely was the Pakeha’s fault. The claimants themselves might well have felt listened to, exorcized somewhat, but to me they were just pawns in a script that was not theirs. Two days of hearings were enough for me, I drove home feeling that whether Maori or European, we were all being ripped off by the Waitangi Tribunal’s existence. I began with the impression that the Tribunal might be a questionable entity with a questionable purpose, I know now that it is.

Robin Grieve, a tutor, orchardist and retired farmer, is Chairman of Pastural Farming Climate Research HERE.