The Waitangi Tribunal is the main mechanism of truth and reconciliation between the Māori people and the British Crown to address economic and land issues. This process is based on the Treaty of Waitangi which was signed in 1840 by the British Crown and around 540 Māori chiefs.[i] This treaty recognized the Crown’s rights of governance over Māori tribes and Māori’s ownership of their land and resources while benefitting from British full rights and protection from the Crown.[ii] The Crown proclaimed British sovereignty over New Zealand and later the colonial office in England declared that the Treaty applied to all Māori tribes, including those who had not to signed.

The increasing settler desire for land and the Crown’s will to impose full sovereignty over Māori people led to the New Zealand Wars of the 1860s.[iii] This war ended with the wide confiscation of 4 million of Māori tribal land. Over time, the growing Māori grievances sparked debates over the treaty in New Zealand society and Pākehā began supporting Māori calls to honour the treaty. Ultimately, Māori grievances were acknowledged by the Crown and in 1975, the Waitangi Tribunal was created.[iv]

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[i] “The Treaty in Brief.” New Zealand History, History Group of the New Zealand Ministry for Culture and Heritage, nzhistory.govt.nz/politics/treaty/the-treaty-in-brief.

[ii] “The Treaty in Brief.” New Zealand History, History Group of the New Zealand Ministry for Culture and Heritage, nzhistory.govt.nz/politics/treaty/the-treaty-in-brief.

[iii] “Slide to war.” New Zealand History, History Group of the New Zealand Ministry for Culture and Heritage, nzhistory.govt.nz/politics/treaty/the-treaty-in-practice/slide-to-war.

[iv] “The Treaty Debated.” New Zealand History, History Group of the New Zealand Ministry for Culture and Heritage, nzhistory.govt.nz/politics/treaty/the-treaty-in-practice/the-treaty-debated.

The Waitangi Tribunal is a permanent mission of inquiry made to investigate Māori grievances and alleged breach of the Treaty of Waitangi against the Crown.[i] Through fact-finding and mostly non-binding recommendation, the tribunal began hearings for grievances up until 1975 and recommended the settlement of historical claims to the government.[ii] Later, the hearings were extended to hearings dating up until 1840, the date at which The Treaty of Waitangi was signed. If the government representing the Crown decides to settle a claim, the Office of Treaty Settlement will then negotiate with the claimant on the appropriate way to settle the claim. Deeds of settlement include three kinds of redress.[iii] First, the redress can be a historical account of how the Crown broke the Treaty and subsequent acknowledgment and apology for the harm caused. Second, the redress can be cultural through land transfers, co-governance of water resources or change of place names. And third, the redress can be commercial or financial where the Crown would give claimants cash, property or a mix of both. Once agreed terms of settlement are signed by both parties, the Crown sends redress to the claimant and removes the tribunal’s ability to investigate further this claim.[iv]

The main critics in this process rely on power asymmetry and lack of consultation with Māori.[v] Indeed, this process is entirely dependant on the government’s will to settle chosen claims and could easily choose to settle claims that satisfy its own interest. Furthermore, there are increasing critics denouncing the inequality between settlements and actual losses. To illustrate, the iwi Ngai Tahu settlement worth NZ$170 million was not even close to the actual economic loss of the tribe estimated at NZ$20 billion.

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[i] “Waitangi Tribunal Te Rōpū Whakamana i Te Tiriti o Waitangi.” Waitangi Tribunal , waitangitribunal.govt.nz/.

[ii] Healing the Past, Building a Future: a Guide to Treaty of Waitangi Claims and Negotiations with the Crown. Office of Treaty Settlements, 2018, www.govt.nz/assets/Documents/OTS/The-Red-Book/The-Red-Book.pdf.

[iii] “What Are Treaty Settlements and Why Are They Needed?” Ministry for Culture and Heritage Te Manatu Taonga, 30 Nov. 2020, teara.govt.nz/en/te-tai/about-treaty-settlements.

[iv] Mulholland, Malcolm. New Zealand's Indigenous Reconciliation Efforts Show Having a Treaty Isn't Enough. The Conversation, 20 Nov. 2020, theconversation.com/new-zealands-indigenous-reconciliation-efforts-show-having-a-treaty-isnt-enough-49890.

[v] Mulholland, Malcolm. New Zealand's Indigenous Reconciliation Efforts Show Having a Treaty Isn't Enough. The Conversation, 20 Nov. 2020, theconversation.com/new-zealands-indigenous-reconciliation-efforts-show-having-a-treaty-isnt-enough-49890

• Maori people act as claimants in the Waitangi Tribunal process. Traditionally, the Māori society is divided according to the tribal organization between iwi (confederation of tribes), hapū (clan) & whānau (community of extended family).[i]
• The Waitangi Tribunal: The main instance of the investigation into Māori grievance which provides non-binding recommendations to the government/Crown for settlement of historical grievances.[ii]
• Office of Treaty Settlements: Based on the recommendations of the Waitangi Tribunal, the Office of Treaty Settlements hosted by the Ministry of Justice can choose to negotiate in the Crown’s name with Māori claimants on the deeds of settlements.[iii]

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[i] “Tribal Organisation.” Te Ara Encyclopedia of New Zealand, Ministry for Culture and Heritage Te Manatu Taonga, 22 Feb. 2019, teara.govt.nz/en/tribal-organisation.

[ii] “What Are Treaty Settlements and Why Are They Needed?” Ministry for Culture and Heritage Te Manatu Taonga, 19 Feb. 2020, teara.govt.nz/en/te-tai/about-treaty-settlements.

[iii] “What Are Treaty Settlements and Why Are They Needed?” Ministry for Culture and Heritage Te Manatu Taonga, 19 Feb. 2020, teara.govt.nz/en/te-tai/about-treaty-settlements.

• The Crown settles historical breach of the Treaty of Waitangi. Settlements negotiated by the Office of Treaty Settlements in the Crown’s name include formal apologies, cultural and economic redress.[i]

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[i] “What Are Treaty Settlements and Why Are They Needed?” Ministry for Culture and Heritage Te Manatu Taonga, 19 Feb. 2020, teara.govt.nz/en/te-tai/about-treaty-settlements.

Representation

The Crown process of addressing grievances suffers from an issue of representation, thus posing as a structural barrier to full reconciliation with the Māori people. Indeed, the Office of Treaty Settlement only negotiates with “large natural groupings”[i] or iwi groups. Yet, Māori society is composed of iwi (confederation of tribes), hapu (community) and whanau (community of extended family).[ii] Therefore, hapu must unite with bigger iwi, which often means that their grievances are subdued by the larger group. In practice, this inaccurate representation process leads to unaddressed grievances and undermines the Crown’s obligation to rebuild traditional Māori social structures.

Crown’s Lack of Communication and Support

The Crown’s lack of communication on settlements to the public raises an issue of durability and creates a barrier to reconciliation in the long term. Indeed, in 2013, the Ngati Whatua o Kaipara tribe got ownership of the Woodhill Forest as a result of negotiations with the Office of Treaty Settlements. Nevertheless, due to the lack of communication from the Crown and the subsequent public misunderstanding of the significance of the settlement, the Ngati Whatua o Kaipara must deal with numerous violations of private property in the Woodhill forest.[iii] Thus, the public disrespect and misinformation for treaty settlement threaten the integrity of the Crow’s redress in the long term.

Unclear Interpretation

While the treaty of Waitangi was a fully bilingual document, there are discrepancies that can be exploited between the Māori and English translations. Words such as 'governorship' had no meaning in the Māori language and words such as 'mana' have no direct translation into English, creating multiple loopholes in such a vital treaty.[iv] For example, while the English translation grants rights to 'properties', the Māori translated term 'taonga' encompasses language and culture and even varies from iwi to iwi.[v] This has led to many cases in which differing interpretations of language is a sole influencer in how a settlement is decided.

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[i] Birdling, Malcolm. "Healing the Past or Harming the Future-Large Natural Groupings and the Waitangi Settlement Process." New Zealand Journal of Public and International Law 2 (2004): 259.

[ii] “Tribal Organisation.” Te Ara Encyclopedia of New Zealand, Ministry for Culture and Heritage Te Manatu Taonga, 22 Feb. 2019, teara.govt.nz/en/tribal-organisation.

[iii] Kawharu, Margaret. "The ‘unsettledness’ of Treaty claim settlements." The Round Table 107.4 (2018): 483-492.

[iv] "He Whakaputanga - Declaration of Independence, 1835". NZ History, Archives New Zealand - Te Rua Mahara o te Kāwanatanga. https://nzhistory.govt.nz/media/interactive/the-declaration-of-independence

[v] Laurie, John. “Translating the Treaty of Waitangi.” The Journal of the Polynesian Society, vol. 111, no. 3, 2002, pp. 255–258. JSTOR, www.jstor.org/stable/20707078. Accessed 10 Nov. 2020.

While the New Zealand TRC is effective at building peace and is a model that other countries with indigenous peoples should strive to emulate, it is decidedly imperfect and has a plethora of problematic flaws.

The creation of the Waitangi Tribunal was an extremely important gesture to commit to reconciliation for the grievances of the Māori people when the Crown could have easily and lawfully repudiated the Treaty of Waitangi as a non-legally binding document. However expedited it may seem to have an Office of Treaty Settlements dedicated solely to indigenous claims, the reliance on the government to determine parameters of the settlement framework creates an asymmetrical power dynamic that disenfranchises many Māori people.[i] And while the 2.24 billion awarded as of 2018 over the course of a quarter century may seem like a wide-reaching and inspiring amount, it is worth comparing it to the 14 billion that the government spends on annual superannuation per year.[ii]  In a similar vein, many critics see the compensation as unsatisfactory or even patronizing. For example, when the iwi Ngai Tahu settled for 170 million it was contested not as a victory but rather as a loss by some who estimated the economic loss of the tribe to be around 20 billion.[iii] Perspective is vital in analyzing TRCs, and we cannot allow ourselves to be dazzled by substantial figures and political jargon.

Another criticism of the New Zealand TRC is how inefficient and cumbersome it is. Some iwi take part in negotiations for upwards of 20 years, and it is easy to feel helpless and like it is easier to give up than be pitted against the bureaucratic impedance of governmental red tape in structures of law, and buildings that some Māori people might be unfamiliar with.[iv] This is especially true given the language discrepancies between the Māori and English version of the Treaty of Waitangi and the overabundance of ways to exploit one’s interpretation. While the Waitangi Tribunal has registered 2501 claims, it has only issued 123 final reports, partially reported on 1028 claims, and will only be starting on claims post-1992 in the year 2025.[v] Peace is being made, but at an extremely slow rate. At the risk of painting all Māori with the same brush, it is worth noting that not all indigenous groups in New Zealand are Māori, and that not all indigenous groups come out of the claims process feeling at peace – many Ngai Tahu, for example, were unsatisfied with what they felt was an insult to their historical grievances. That being said, the Waitangi Tribunal has passed over 73 settlements into law[vi], which goes a long way to creating a maintainable peace between the indigenous peoples and their colonisers. The peace process does not stop with the settlement, though, as that is just the first step on a long road to recovery.

Where New Zealand excels is in its commitment to education, truth, and change. The government publicly funds immersion Māori schools and Māori language television stations, seemingly taking pride in its bicultural roots.[vii] Despite not being compulsory, the educational curriculum acknowledges Aotearoa New Zealand as a bicultural nation, and redress often includes historical recounts to take responsibility for the breach in treaty – which is often the taking of land or lives – and take accountability for historical acts of brutality.[viii] When grievances are acknowledged on an international stage, it inspires and gives hopes to others who have undergone similar atrocities. Taking accountability and offering multiple formal apologies for specific instances as opposed to a broad history of oppression makes the New Zealand TRC seem both personal and sincere and tends to disassociate it from tokenism and empty promises in a way that many other countries struggle with. Actively ensuring the revitalizing and longevity of the Māori language, culture, and history among both indigenous and non-indigenous peoples as opposed to sweeping it under the rug to slowly die off shows a dedication to change for the better and fosters a sense of community that encourages peace.

In conclusion, New Zealand’s TRC is recognizable as a prototype that other nations facing indigenous reconciliation should endeavour to contend with. However, the fact remains that it has many problematic features and can always improve upon itself. It is a long and arduous process to attempt to circumvent centuries of grievances, and we absolutely cannot allow ourselves to become complacent.

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[i] Mulholland, Malcolm. New Zealand's Indigenous Reconciliation Efforts Show Having a Treaty Isn't Enough. The Conversation, 20 Nov. 2020, theconversation.com/new-zealands-indigenous-reconciliation-efforts-show-having-a-treaty-isnt-enough-49890.

[ii] “What Are Treaty Settlements and Why Are They Needed?” Ministry for Culture and Heritage Te Manatu Taonga, 19 Feb. 2020, teara.govt.nz/en/te-tai/about-treaty-settlements.

[iii] Mulholland, Malcolm. New Zealand's Indigenous Reconciliation Efforts Show Having a Treaty Isn't Enough. The Conversation, 20 Nov. 2020, theconversation.com/new-zealands-indigenous-reconciliation-efforts-show-having-a-treaty-isnt-enough-49890.

[iv] Mitchell, Mark. Largest ever Treaty deal 'Treelords' passes into law. NZHerald, 24 Sep. 2008, https://www.nzherald.co.nz/nz/largest-ever-treaty-deal-treelords-passes-into-law/GSARI43YLKJPTRMBXDKPTBVZA4/.

[v] “About the Waitangi Tribunal.” Waitangi Tribunal, waitangitribunal.govt.nz/.

[vi] “About the Waitangi Tribunal.” Waitangi Tribunal, waitangitribunal.govt.nz/.

[vii] “Māori education – mātauranga” Ministry for Culture and Heritage Te Manatu Taonga, Accessed 10 Nov. 2020, https://teara.govt.nz/en/maori-education-matauranga/page-5

[viii]Mulholland, Malcolm. New Zealand's Indigenous Reconciliation Efforts Show Having a Treaty Isn't Enough. The Conversation, 20 Nov. 2020, theconversation.com/new-zealands-indigenous-reconciliation-efforts-show-having-a-treaty-isnt-enough-49890.

The Treaty of Waitangi 1840. https://nzhistory.govt.nz/files/documents/treaty-kawharu-footnotes.pdf

Treaty of Waitangi Act 1975.http://www.legislation.govt.nz/act/public/1975/0114/107.0/DLM435368.html

Annotated Bibliography

Byrnes, Giselle. “Relic of 1840” or founding document? The Treaty, the tribunal and concepts of time.” Kōtuitui: New Zealand Journal of Social Sciences Online 1.1 (2006): 1-12.

The author identifies an evolving trend in the Waitangi Tribunal’s conception of time towards a more timeless, transcendent notion of time, acknowledging the application of the Treaty of Waitangi in the past, present and future.  In parallel, the author finds similar conceptions of time in contemporary Māori culture. As such, this article argues that there is a conjunction between the Waitangi Tribunal and the Māori conception of time, highlighting a more comprehensive understanding of Māori values and concepts and their relations to the Treaty of Waitangi. Other trends echoed this further understanding and inclusion of Māori values, such as increasing references to the Treaty in Māori statutory law, deeds of settlement and Waitangi Tribunal reports.

Cant, Garth. “Reclaiming land, reclaiming guardianship: the role of the Treaty of Waitangi Aotearoa, New Zealand.” Aboriginal History, vol. 19, no. 1/2, 1995, pp. 79–108. JSTOR, www.jstor.org/stable/24046297. Accessed 11 Nov. 2020.

This article provides a timeline for the events leading up to, including, and directly after the signing of the Treaty of Waitangi. This history is told from the perspective of both the Māori peoples and the colonisers, and attempts to be unbiased by often citing positives and negatives for both parties. It also provides a historical analysis of some major claims taken on by the Treaty of Waitangi, hindrances to these procedures, and walks the reader through the process using an example case. It has maps and figures for reference, and stays consistently factual without attempting to make a political point about either side.

Franklin, Margaret Ann. “Māori Politics and the Treaty of Waitangi.” The Australian Quarterly, vol. 61, no. 2, 1989, pp. 292–299. JSTOR, www.jstor.org/stable/20635537. Accessed 15 Nov. 2020.

This article details the political ongoings on New Zealand from the perspective of the Māori, with a focus on the growth of their political awareness throughout time. It provides a timeline of the political consciousness of the Māori people from the (assumed) coerced signing of the Treaty of Waitangi to present day cases of manipulating the clauses and language in order to further their political game on a national scale. It discusses the differences and disputes between various iwi, champions Māori politicians, and provides insights for next steps while acknowledging that there are still many steps to be taken towards equality.

Laurie, John. “Translating the Treaty of Waitangi.” The Journal of the Polynesian Society, vol. 111, no. 3, 2002, pp. 255–258. JSTOR, www.jstor.org/stable/20707078. Accessed 10 Nov. 2020.

The author discusses very bluntly the advocacy method of exploiting the language mistranslations of the Treaty of Waitangi to suit one's benefit. They expose various cases by providing detailed examples in which law has deliberately mistranslated the treaty in a conscious effort to reach a conclusion that would further their agenda. This direct but factual attack unravels the problematic morality of the legal system as well as the flaws within the Treaty of Waitangi itself and provides tangible evidence of translations to elaborate on an issue that is only touched on briefly by most other non experts in scholarly writing.

Mutu, Margaret. “Behind the smoke and mirrors of the Treaty of Waitangi claims settlement process in New Zealand: no prospect for justice and reconciliation for Māori without constitutional transformation.” Journal of Global Ethics 14.2 (2018): 208-221.

In this article, the author argues that the government’s real intent concerning reconciliation is to bolster the narrative of reconciliation with the Māori people while legislatively removing legal and Treaty rights throughout the settlement process. Understanding this intent reveals why the reconciliation process is traumatizing to many claimants and the government’s systematic avoidance of a proper restorative justice approach. As a result, the author finds that this settlement process is in clear violation of the Treaty of Waitangi and the United Nations Declaration on the Rights of Indigenous People (UNDRIP), echoed by three U.N special Rapporteurs on indigenous rights.

O’Sullivan, Dominic. “The treaty of Waitangi in contemporary New Zealand politics.” Australian Journal of Political Science 43.2 (2008): 317-331.

This article outlines the three dominant perspectives on the Treaty of Waitangi policy debate, each entailing different implications for Māori political status within modern New Zealand, explaining perceived racial division among society. The first perspective overstates the significance of the Treaty by overemphasizing the implicit partnership in the Treaty of Waitangi. The second perspective takes the opposite stance by viewing the Treaty as an assimilationist strategy from the Crown that denies partnership with Māori people. Ultimately, the authors argue for the third position, which sees the Treaty as enabling a political space in which Māori can exercise their citizenship both collectively and individually

Sullivan, Ann. “The politics of reconciliation in New Zealand.” Political Science 68.2 (2016): 124-142.

This article analyzes how the Waitangi tribunal as a state-led institutional process of reconciliation has helped iwi move from grievances due to treaty breaches to self-determination or ftino rangatiratanga through further integration in the national economy. She defines New Zealand’s reconciliation as a process of assimilation aimed at limiting Māori dissent with the government by providing space for Māori political, economic and cultural integration.  While her analysis explains the decrease of Māori political advocacy for sovereignty among iwi, she overlooks the other important groups of Māori society, namely hapu and whanau, who experienced grievances at well.

Tauri, Juan, and Robert Webb. “The Waitangi Tribunal and the Regulation of Māori Protest.” New Zealand Sociology 26 (2011): 21-41. ProQuest. Web. 27 Nov. 2020.

This paper rejects the conventional idea that the creation of the Waitangi tribunal represented a meaningful institutional mechanism to settle historical grievances related to the breaches of the Treaty of Waitangi compared to the previous legal systems. Through a historical examination of the early years of the Waitangi Tribunal, the authors argue that the Waitangi tribunal was implemented to create a state-led informal justice forum in an effort to regulate the growth of  Māori Treaty activism As such; the authors highlight that the tribunal’s lack of authority in producing legally binding decision and the tribunal’s push to make of Māori political and social activism a government-controlled forum.

Birdling, Malcolm. "Healing the Past or Harming the Future-Large Natural Groupings and the Waitangi Settlement Process." New Zealand Journal of Public and International Law 2 (2004): 259.

"He Whakaputanga - Declaration of Independence, 1835". NZ History, Archives New Zealand - Te Rua Mahara o te Kāwanatanga. https://nzhistory.govt.nz/media/interactive/the-declaration-of-independence

Healing the Past, Building a Future: a Guide to Treaty of Waitangi Claims and Negotiations with the Crown. Office of Treaty Settlements, 2018, www.govt.nz/assets/Documents/OTS/The-Red-Book/The-Red-Book.pdf.

Kawharu, Margaret. "The ‘unsettledness’ of Treaty claim settlements." The Round Table 107.4 (2018): 483-492.

Mitchell, Mark. Largest ever Treaty deal 'Treelords' passes into law. NZHerald, 24 Sep. 2008, https://www.nzherald.co.nz/nz/largest-ever-treaty-deal-treelords-passes-into-law/GSARI43YLKJPTRMBXDKPTBVZA4/.

Mulholland, Malcolm. New Zealand's Indigenous Reconciliation Efforts Show Having a Treaty Isn't Enough. The Conversation, 20 Nov. 2020, theconversation.com/new-zealands-indigenous-reconciliation-efforts-show-having-a-treaty-isnt-enough-49890.

“Slide to war.” New Zealand History, History Group of the New Zealand Ministry for Culture and Heritage, nzhistory.govt.nz/politics/treaty/the-treaty-in-practice/slide-to-war.

“The Treaty in Brief.” New Zealand History, History Group of the New Zealand Ministry for Culture and Heritage, nzhistory.govt.nz/politics/treaty/the-treaty-in-brief.

“The Treaty Debated.” New Zealand History, History Group of the New Zealand Ministry for Culture and Heritage, nzhistory.govt.nz/politics/treaty/the-treaty-in-practice/the-treaty-debated.

“Tribal Organisation.” Te Ara Encyclopedia of New Zealand, Ministry for Culture and Heritage Te Manatu Taonga, 22 Feb. 2019, teara.govt.nz/en/tribal-organisation.

“Waitangi Tribunal Te Rōpū Whakamana i Te Tiriti o Waitangi.” Waitangi Tribunal, waitangitribunal.govt.nz/.

“What Are Treaty Settlements and Why Are They Needed?” Ministry for Culture and Heritage Te Manatu Taonga, 19 Feb. 2020, teara.govt.nz/en/te-tai/about-treaty-settlements.