Speech to Waitangi Tribunal members' dinner

E nga mema o te Ropu Whakamana i te Tiriti, tena koutou katoa.

Tena koutou e takahi nei i nga tapuwae o nga tipuna, na ratou te Tiriti o Waitangi i tamoko kia whai mana.

The Tribunal is unique, and its ongoing contribution to Aotearoa New Zealand's identity and constitution is quite extraordinary.

The Tribunal has gained maximum advantage from it's status as a quasi-judicial standing commission of inquiry, and the nexus for a number of intersecting social, political, legal, cultural and constitutional processes.

Your accountabilities are confusing. The Tribunal's procedures are inquisitorial in a legal culture that is generally adversarial. The Act provides that they may also incorporate aspects of tikanga Maori.

As a Commission of Inquiry, the Tribunal's powers are limited to recommendation, rather than being binding court decisions (except in special circumstances). Nevertheless your findings and recommendations can be subject to judicial review.

Recommendations addressed to Ministers are, in essence, policy advice rather than legal determination, provided in the context of a highly political process of settling Treaty claims.

But instead of getting bogged down in a legal and political mire, the Tribunal has revolutionised our constitution.

The Tribunal also has a relationship with Maori that is unique among Crown entities. As a judicial body working in the Treaty field, it must understand and respond to tikanga Maori, to be seen to deliver justice to claimants. In return, Maori have staked a special claim to the Tribunal.

There can be no doubt that it was the Motunui finding, and the subsequent public and political response, that established the Tribunal's value as a forum for Maori.

When a wave of public anger forced Prime Minister Muldoon to reconsider his rejection of your findings, the Tribunal's mana went right up. And that mandate, directly from the public, changed the course of the Tribunal's history.

So the Tribunal straddles some of the most active faultlines in our constitutional landscape - between law and politics, tangata whenua and Crown, justice and tikanga, kawanatanga and rangatiratanga.

It is the broader landscape I want to survey, without in any way interfering with judicial independence!

At the end of the day, when it comes to settling Treaty claims, we're all in this together.

We all face challenges inherent in Treaty processes that are redefining our national identity.

For example, the Tribunal is currently hearing claims by Ngapuhi that they (and by implication, other iwi) did not cede sovereignty by signing the Treaty of Waitangi. They point to the Declaration of Independence of 1835 - a document virtually unknown outside professional historical circles until quite recently.

The information that is presented to the Tribunal, and the interpretations that are debated, greatly strengthen our understanding of our history and constitution as a nation.

At another level, the way the claims are handled tells us a lot more about our constitution.

For example, much is made of mandating and representation issues among claimants - with good reason. Mandating and representation is all about finding and expressing a collective identity.

Past claim funding policies created incentives for claimant groups to splinter into ever-smaller factions that became incapable of achieving justice.

The Crown is entitled to know who it is dealing with, and that the representative group is able to bind the claimants to an agreement, and manage the benefits of a settlement for all the affected parties. Mandating and representation is a search for rangatiratanga - political organisation and leadership, and the capacity to determine one's own future.

But claimants are also entitled to know who they are dealing with.

I regularly hear from tangata whenua about the disjointed and fragmented nature of their Treaty partner - of a lack of co-ordination between Crown agencies, of inconsistent policies and practices, and changes of policy when governments change.

This lack of the Crown's understanding of its collective identity has impacts, not just on the hearing process, but in establishing the post-claims environment.

The Waipareira claim was a watershed in that respect, that has helped to lay the foundations for whanau ora and other inter-agency responses to Maori issues. WAI 262 is a challenge that still lies ahead!

Just on that note, I want to thank the Tribunal for modifying its usual process, and issuing a partial report on WAI 262, concerning te reo Maori.

I understand the Tribunal's intent is to assist Te Paepae Motuhake, the independent panel which is currently reviewing the Government's efforts to revitaslise te reo Maori.

I just want to say that I really appreciate the Tribunal's consideration, and I am sure the panel willl find your analysis very helpful. I will reserve any comment until I see the full report on WAI 262 (whenever that might be!)

I believe the Tribunal process has helped officials to develop a better sense of the Crown's identity, and its collective responsibilites to tangata whenua.

Suffice to say that the government, as a result of the Relationship and Confidence and Supply Agreement between the Maori Party and the National Party, is planning a constitutional review, with particular reference to the place of the Treaty in the constitution.

The Tribunal's unique role, history and experience could contribute invaluable wisdom and analysis to the review, especially on recent changes and future trends in the rapid evolution of our constitution.

I've said the Tribunal straddles several faultlines.

Perhaps its feet are most firmly planted in the fields of education and communication, across cultures and over time.

Claimant research has brought to light much documentary evidence that supports the oral traditions of iwi and hapu.

The extraordinary thing is how little of it was known to the public, or even to the government, until the claims prompted the research. It is hard to avoid the conclusion that part of the process of colonisation is to systematically conceal the past, to allow it to be forgotten.

I've mentioned the Declaration of Independence already, but The Treaty itself is the prime example - a key constitutional document buried for decades in a waterlogged basement, chewed by rats, and rediscovered almost by accident.

The resolution of contentious political issues like the foreshore and seabed, and perhaps Maori representation in the super-city of Auckland, will be based on mutual recognition and respect, co-operation and good faith - all of which spring from a common understanding of our shared past, that began with the Treaty.

So I see the Tribunal ushering in an era when tikanga Maori will find expression in New Zealand's own unique jurisprudence, legal system, and constitution. And the result will be a more inclusive society, where tangata whenua no longer suffer systematic disadvantage, and our society, culture and economy flourish.

The Tribunal is a key player in our constitutional arrangements.

It has succeeded in elevating the Treaty to the status of a constitutional foundation of Aotearoa.

It has laid the foundations for Treaty negotiations and settlements that have renewed the Treaty parties' understanding, of each other, of themselves, and their joint enterprise in nation-building.

Through the application of tikanga Maori in its own procedures, and through its jurisprudence, it has commanded a mandate to map out a vision for a bilingual, bicultural future.

That being so, perhaps we should consider whether or not the Tribunal itself should come within the ambit of the planned review of our constitution.

What might be a future role for the Tribunal in a post-settlement Aotearoa?

Is there a role for a Parliamentary Commissioner for the Treaty (another Maori Party policy) - and is this a function the Tribunal could fulfil?

This is a timely discussion to have. Tomorrow I am due to speak at the third Kokiri Ngatahi hui of claimants and Crown, about the settlement process.

A key purpose of the hui is to discuss the post-settlement environment - one where iwi are playing a more active, and better-recognised role as Treaty partners with central and local government, and major players in local, regional and national economies.

These are exciting times, and it is a pleasure to share them in the company of those who have done so much to bring a vision to reality.

Ko te pae tawhiti, whaia kia tata.

Ko te pae tata, whakamaua kia tina!

Kia ora tatou.