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For Maori, New Zealand’s Waitangi Tribunal Has Aided Reconciliation

New Zealand’s police don’t carry guns. But after a white supremacist armed with semiautomatic weapons killed 51 Muslim worshippers at two mosques in the city of Christchurch in March 2019—the worst mass shooting in the country’s history—some New Zealanders thought they should.

“The operating environment has changed,” the former New Zealand police commissioner, Mike Bush, said in a statement several months after the massacre. “Police must ensure our people are equipped and enabled to perform their roles safely and to ensure our communities are, and feel, safe.”

In October that year, the national police announced a project that would see units of armed officers, so-called Armed Response Teams, undertake regular neighborhood patrols, ready to respond to emergencies and high-risk events. Previously, New Zealand’s frontline officers were unarmed, with armed contingents only on call to respond if needed.

A six-month trial of the project began in October 2019 in three districts across New Zealand. But before the data could be evaluated, the entire project was unceremoniously scrapped. This was in part because of widespread public opposition to it. But there was another, perhaps more unexpected reason for the reversal: a unique-in-the-world local body known as the Waitangi Tribunal.

Originally created in 1975 to address the land rights grievances of Indigenous New Zealanders—the Maori—the Waitangi Tribunal is perhaps the longest-surviving truth and reconciliation project in the world. Many other countries, from El Salvador to Germany, have created similar organizations at one time or another to address issues of injustice and the legacies of violence, but most have had a limited purview or lifespan. In contrast, the Waitangi Tribunal has, after 45 years of operation, become an essential institution in New Zealand, and its mandate has evolved massively to cover everything from the preservation of Indigenous language, to Indigenous stewardship of the environment, to a group’s ability to copyright its cultural artifacts and traditions. Its work is even responsible for the fact that, since 2017, both a river and a forest in New Zealand have had the same legal rights as a human.

When the New Zealand police made their initial plans to take up arms, Maori advocates for criminal justice reform filed an emergency claim with the Waitangi Tribunal to halt them, arguing that the community that would be most affected by the policing change—the Maori—had not been adequately consulted. In New Zealand, Maori are nearly eight times more likely to be subjected to force by the police than non-Maori New Zealanders; between 2009 and 2019, two-thirds of those shot by the police were Maori or Pacific Islanders.

The failure to consult the Maori community, advocates argued, constituted a breach of New Zealand’s founding document, the Treaty of Waitangi, from which the Waitangi Tribunal takes its name. Even as they pushed for the tribunal to take up the case, in June 2020, thousands of Black Lives Matter protesters took to the streets in Auckland, Wellington and other cities, denouncing police violence against New Zealand’s Indigenous communities and making the idea of armed police officers even more unpalatable. By the second week of June, the police had abruptly canned the project, stating that armed units “do not align with the style of policing that New Zealanders expect.”

The Waitangi Tribunal has changed significantly over almost five decades, going from an organization ignored, feared and even demeaned, to a body that is often the first to be consulted when an important social or political change is planned. It has had a significant impact on the way many New Zealanders understand their own society and history—and that may, in time, help to reduce the long-standing inequalities between Maori and non-Maori. At a time when many countries are questioning how to address enduring issues with racism and colonialism, the Waitangi Tribunal may be able to offer an instructive example.

An Experiment in Racial Reconciliation

The Treaty of Waitangi was signed in 1840, in a far-north New Zealand town called Waitangi, by Indigenous Maori tribal chiefs and newly arrived representatives of the British crown. As the New Zealand government’s history website puts it, the Waitangi Treaty “is a broad statement of principles on which the British and Maori made a political compact to found a nation state and build a government in New Zealand.”

There were two versions of the treaty at the time, one in English and one translated into te reo, the Maori language. As local journalist Ted Reynolds wrote in a 1990 article for New Zealand Geographic magazine, “It seems certain that the two sides left the [treaty] signing ceremonies with sharply different ideas of what had been achieved. The British side believed they had gained sovereignty over a new colony. The Maori chiefs believed they had saved their country from being overrun by British settlers, and that the Queen now protected their status as chiefs over their own tribes.”

At a time when many countries are questioning how to address enduring issues with racism and colonialism, the Waitangi Tribunal may offer an instructive example.

That misunderstanding—some have called it outright deception on the part of the British—lies at the heart of New Zealand’s race relations and informs all the injustices that have followed. Consequently, attitudes toward the Treaty of Waitangi have varied significantly over the decades. Is it the country’s founding document, on which constitutional rights should be based? Or the relic of a long-gone colonial era best ignored?

The Waitangi Tribunal is an attempt to answer those questions. Over previous decades, many New Zealanders had prided themselves on what they believed to be some of the finest race relations in the world, after a supposedly harmonious colonization of the native people, a process that included the Waitangi Treaty. However, in 1961, the Hunn Report, a government investigation into the position of Maori in New Zealand society, gave lie to that belief. It documented how—among many other things—Maori had worse health, higher infant mortality and lower life expectancy; lived in poorer housing; had fewer educational opportunities; and were disproportionately represented among both juvenile and adult criminal offenders.

In other words, the report found that Maori were far from the equal partners in governance that the Treaty of Waitangi had promised they would be. Instead, they were a disadvantaged and marginalized people. The many reasons for that—systemic racism, colonization, violence and war—are still being dissected today.

The Hunn Report’s publication was followed, in the 1970s, by what is now described as a “Maori renaissance,” a cultural awakening, characterized by land marches and protests, that was inspired in part by Black internationalist social movements and the fight for Indigenous rights in the United States, as well as local developments such as urban migration.

This reawakening was reflected in the creation, in 1975, of the Waitangi Tribunal as a permanent commission of inquiry into consequences of the “misunderstanding” around the Waitangi Treaty’s purpose: the crooked land deals, demands to assimilate, bans on speaking te reo in schools, and more. The tribunal’s 20 members, half of whom are usually of Maori descent, include experts in law, history and Maori language studies, who serve on a variety of panels devoted to different issues. Their role is to investigate the validity of the claims brought by Maori individuals—any Maori person can present a case—and then issue a report with recommendations to the government. The reports, which can be hundreds of pages long, detailing exhaustive historical research, or as short as just a few, are not legally binding on the New Zealand government. But claimants can then later bilaterally negotiate a settlement with the government using the tribunal reports as a basis for their suit.

When it was first established, what the tribunal could actually do was hampered by political infighting over the institution’s scope and power. This was driven by the anxieties of many non-Maori New Zealanders, who feared the tribunal would create two separate societies divided by race, and worried that private property would be confiscated in reparations schemes.

Police officers at a park outside the Al Noor mosque in Christchurch, New Zealand, March 20, 2019 (AP photo by Vincent Yu).

“The Treaty is creating separatism,” wrote one angry respondent to a 1998 survey on the subject, with the kind of complaint that has been repeated for years. “It is unreasonable to expect the present generation to atone for the past, real or imagined. Learn to live with it. Burn the Treaty and dismantle the Tribunal.” On the other side, too, Maori rights activists argued—as some still do today—that the tribunal was just a way for the state to sideline their demands.

In the first nine years of the Waitangi Tribunal’s existence, only 14 claims were lodged, and its members used a Western approach to jurisprudence. Its first case, a 1977 fishing rights dispute, was heard in courtroom-style surroundings in the ballroom of a hotel. But between the late 1970s and 1980s, its operations began to change, as the tribunal “arguably transformed itself from a formal body of justice, to that of an informal justice forum that engaged with Maori on their terms; at least as far as protocol was concerned,” researchers explained in the journal New Zealand Sociology in 2011. By 1984, the tribunal had heard a case on a marae, a traditional meeting grounds for Maori people, using tribal protocol rather than European-style legal formalities.

“I think the 1980s were the period of the biggest impact,” argued David Williams, a recently retired law professor who has been working on Treaty of Waitangi issues since the 1970s, in an interview. “The need to reexamine our history had become very clear. And the tribunal’s reports were based on substantial, historical research. For the first time, for many people, it was clear those issues had to be addressed.”

A New Understanding of History

Over the following decades, there has been a big shift in local attitudes toward the Waitangi Tribunal and, more generally, the Maori culture and community.

“It’s obviously not the tribunal’s primary function, but this is one of the important roles that it has had,” Carwyn Jones, an associate law professor at the University of Victoria in Wellington, said in an interview. Jones served as a negotiator for his community, the Ngati Kahungunu tribe, in a case against the British crown, and also previously worked at the Waitangi Tribunal. The tribunal, he added, “has brought attention to these topics, which has had a big impact on public opinion. Since the mid-1990s, there has been a kind of bipartisan recognition that there needed to be some redress and recognition of treaty breaches.”

Surveys conducted over the past two decades support this view. For instance, a 1998 survey of public attitudes toward the Waitangi Treaty and the tribunal found that most New Zealanders were uncertain about what the treaty entailed, what Maori actually wanted and what the tribunal’s role was.

By 2006, that seemed to be changing, with more New Zealanders—and especially younger ones—claiming they had good knowledge of the Waitangi Treaty. Fast forward to September 2020, and a poll by national broadcaster Television New Zealand showed that 27 percent of respondents thought the Waitangi Treaty should play an even larger role in New Zealand law. That percentage had nearly doubled since the pollsters first asked the question in 2014.

“It’s taken me over 25 years to have any understanding of the injustice that Maori received at the hands of the colonizers,” wrote one commentator, a television producer who immigrated to New Zealand in 1990, responding to a 2018 article about Maori protest. “I’m proud to be a Kiwi, the wrongs of the past were not of my making and I’m not directly responsible for them but I now understand that I have a duty to acknowledge and respect what really happened and to realize what the Treaty really means and our responsibility as New Zealanders to that document.”

“[T]he tribunal’s reports were based on substantial, historical research. For the first time, for many people, it was clear those issues had to be addressed.”

“There has been so much more openness and interest in Maori affairs in general over the past year,” a member of one of the country’s Hauraki tribes, whose community is currently involved in tribunal cases, wrote in an email interview. She asked to comment anonymously because she was not authorized to speak on behalf of her tribe. “We’ve had [local celebrities] studying te reo Maori and being advocates for the promotion of tikanga [the Maori way of doing things]. The more liberal public are now the majority,” she said.

The shifts in public opinion have coincided with progress in other areas. The tribunal has received over 2,800 claims from the Maori community, and although criticism of its work persists, it has achieved what can be considered a wide variety of successes. It has almost finished addressing the land rights cases in which Maori sought redress for dodgy deals and confiscations dating back to the 19th century. And, according to Williams, the former law professor, it has also made progress on issues of “cultural redress,” including protecting historical or sacred sites and other aspects of Maori culture, such as language.

“Cultural redress has involved things like restoring the original Maori names to the landscape,” Williams explained. “For example, when I was young, everyone talked about Mt. Egmont,” a picturesque dormant volcano on the west coast of New Zealand’s North Island. “But virtually nobody talks about Mt. Egmont anymore; they call it Mt. Taranaki,” he said. “All of these things don’t cost much money, but for some people, it restores pride—which is actually more important than the money for them.” Most recently, calls have been growing to rename the country “Aotearoa New Zealand,” a combination of its Maori and English names; in September 2020, one the nation’s largest telecommunications providers actually changed the name of its network from Vodafone NZ to VF Aotearoa.

The tribunal’s work on te reo has also helped to bring the language into spaces where it had historically been excluded. For years, Maori were prevented, either by informal policy or outright bans, from speaking te reo in schools; many were even physically beaten for speaking their native tongue. But in 1986, the tribunal agreed with a claim that said that the Maori language was in danger of dying out and was a cultural treasure worthy of state protection. The tribunal recommended promoting the Maori language in public service, education and broadcasting, and said it should be seen as equal to English. The next year, Maori was declared one of New Zealand’s two official languages; today, it is widely acknowledged to be experiencing something of a revival. In 2019, a poll found that 8 in 10 New Zealanders now see the Maori language as part of New Zealand’s national identity.

“I think everyone of my generation has heard the stories about how our parents and grandparents were punished for speaking te reo at school,” politician Kelvin Davis, a former schoolteacher and current Minister for Maori Crown Relations, told local media during Maori Language Week in September 2020. “There is no denying that shaming Maori for speaking Maori has had an effect on many whanau [families], generation after generation.”

Auckland-based journalist Siena Yates recently described getting in touch with her Maori roots through the language, in the online magazine e-Tangata. “I got the courage and inspiration to start tracing my whakapapa,” or ancestry, she wrote. “Knowing that has given me strength and confidence like I never dreamed it could.”

There are other unforeseen impacts of the Waitangi Tribunal’s work, too, according to Jones. He pointed to a case where a retired parole officer brought a claim to the tribunal that the government was not doing enough to prevent Maori recidivism. “For too many Maori, prison is seen as normal,” the parole officer, 72-year-old Tom Hemopo, told local media. In 2017, there was an 80 percent chance a Maori prisoner would be convicted again within five years of their release, compared to 67 percent for non-Maori.

“The tribunal told the Department of Corrections that they needed to have a better strategy, so they developed a new strategy,” Jones recounted. “But then they decided that, rather than having one strategy for Maori and another for everyone else, they would use the Maori strategy as their main one. So they’ve learned something. They’re still seeing how it’s implemented, but that’s been quite a shift.”

Maoris welcome Queen Elizabeth II

Maori from the northern part of New Zealand’s South Island greet Queen Elizabeth II, March 15, 1970 (AP photo).

Williams, the former law professor, furnished another example. After the tribunal began holding hearings on traditional tribal ground, the lawyers attending, who were more used to a traditional courtroom setting, were initially uncomfortable. “They had to learn quite a lot,” he said. “But then those lawyers, the ones who were regularly acting for the government, are appointed to the bench. They become judges, and you tend to find they have some really quite enlightened attitudes,” he added. “So we’re seeing some very positive changes in attitudes—even though it’s not a direct consequence of the tribunal or any tribunal report. It’s a process.”

The country’s first Maori appointee to the New Zealand Supreme Court, Justice Joe Williams, believes that tikanga, the Maori cultural approach, is starting to take root in local bureaucratic culture. Almost all government departments are now required to consider Maori culture in their work. Williams, a descendant of the Ngati Pukenga and Te Arawa tribes, told local media that the challenge now is to “integrate, to synthesize, to weave, the best of both of these two systems into something that is bigger and better than each individually.”

Williams has been working on this cultural cohesion for a while. He presided over a Waitangi Tribunal panel that in 2011 released a far-reaching, 1,000-page report that suggested it was time for New Zealand to move beyond settling grievances toward “a new era based on partnership,” one “in which Maori interests and those of other New Zealanders are fairly and transparently balanced.” There is increasing acknowledgement, the report concluded, that “Maori identity and culture is now a vital aspect of New Zealand identity and culture.”

Toward a ‘True Partnership’ Between Peoples

There are areas, though, where the Waitangi Tribunal has not made as much of a difference. To this day, the major inequalities first highlighted in the 1960s between the country’s Maori and non-Maori populations persist. Data on crime and incarceration show that Maori, who make up about 16.5 percent of New Zealand’s population, constitute around 51 percent of its prison population. In terms of health, Maori are likely to die between six and seven years earlier than non-Maori, and have worse outcomes for diseases like cancer and diabetes. Home ownership rates among Maori are less than half that of the general population.

“It’s no surprise that we have these sad statistics in criminal justice, housing, health, education and so on,” Claire Charters, a law professor who traces her lineage to the Ngati Whakaue, Tuwharetoa, Nga Puhi and Tainui tribes, and is the co-director of the Aotearoa New Zealand Centre for Indigenous Peoples and the Law, told e-Tangata. “Inequality is a product of the colonial system, and we’re still subject to the colonial system … so it’s not surprising.”

Some New Zealanders also say that the tribunal doesn’t do enough to address the most elemental issue at stake in the Waitangi Treaty: genuine Maori sovereignty and the sharing of power. Charters and others would like to see established state mechanisms working alongside Maori tikanga in a “true partnership” between peoples.

The Waitangi Treaty, Jones explained in an op-ed about avenues for reform earlier this year, “points to different models, different values on which to base decisions, and different ways of understanding the relationships between people, lands and waters.” For example, in the 2017 case that led a local river to attain “legal personhood,” the treaty, he wrote, “has shown us glimpses of the potential of reframing environmental relationships.”

Local optimists would say that the tribunal’s work has led to the kind of shifts in public opinion that may make further change, politically and socially, possible in the near future.

Clearly, the tribunal’s mission remains a work in progress. Still, experts say its almost-half-a-century-old exercise in reconciliation can offer some lessons to other countries now dealing with their own legacies of colonialism and racism.

Although the Waitangi Tribunal’s reports are not binding for the government—which, critics point out, makes outcomes dependent on political and bureaucratic will—they still have an impact. The reports from the tribunal that are best received by the government, according to Jones, are those that tap into the existing public mood. The tribunal has strategically selected cases on topics that many locals, not just Maori, are interested in, or that the current government also wants to address, such as environmental pollution and criminal recidivism. This approach has increased the likelihood that the government would take a positive view of the tribunal’s recommendations.

The nonbinding nature of its decisions has also “provided the tribunal with some flexibility,” Jones said in an interview. “If it did behave more like a court, there would be more constraints on the way it operates and the kind of evidence that is admissible. Its flexibility has enabled the tribunal to adapt as circumstances require.” And because the tribunal doesn’t make binding decisions, “it still needs to persuade, it needs to make a political case,” Jones said, which means its reports address critics directly.

That flexibility has also made the Waitangi Tribunal into something of an “honest broker” in situations that can easily turn emotional and rancorous. “One of the things it has done quite effectively is the ‘truth’ part of ‘truth and reconciliation,’” Jones added. “It’s brought attention to issues, then had the government acknowledge them, and even say sorry. Which must lead to the question: What are we going to do about that now?”

But the whole model could never be exported, Williams, the law professor, insisted. “This is specific to Aotearoa New Zealand.”

“All I think you can say is that all societies have systemic racism of one sort or another, and the Waitangi Tribunal has helped make New Zealanders feel more at ease in dealing with these issues with Maori,” he said. “It’s much more difficult to change generations of dysfunction, especially when there are underlying economic issues,” referring to the ongoing inequalities. “It’s not easy to do something about this all that quickly.”

The Waitangi Tribunal has not—and perhaps cannot alone—address New Zealand’s well-documented issues with racism and inequality. But local optimists would say that its many years of fact-finding and documentation of historical wrongs have led to the kind of shifts in public opinion that may make further change, politically and socially, possible in the near future.

Most of all, though, the tribunal has made New Zealand’s history, and its legacy, hard to ignore. “New Zealanders now know there are some genuine issues that need to be thought about,” said Williams, “which makes it more possible to bring about substantive changes for those who are suffering.”

Cathrin Schaer is a journalist based in Berlin, Germany, who grew up in New Zealand. Her work has been published in The Atlantic, The New York Times, Al Jazeera and Der Spiegel, among other outlets.