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Document 16 - Attachment 3
Draft – Not Government Policy
The “kaupapa approach” being implemented by the Waitangi Tribunal to
address Kaupapa Inquiries
In 2014, the Waitangi Tribunal launched a new ten-year strategic plan
1, which clarified the priority of claims
being scheduled for consideration. The strategic direction awarded primacy to completion of remaining district-
based inquiries, fol owed by progression of certain high-priority contemporary (kaupapa) claims raising key
thematic issues for the Crown–Māori Treaty relationship.
2 Since 2015, the Waitangi Tribunal has been hearing
and issuing determinations on kaupapa inquiries alongside district inquiries.
3 The Waitangi Tribunal Chair has
issued two memoranda
4 on the kaupapa inquiry programme, taking into account feedback from claimants who
have been engaging through the process.
Key Features of the Kaupapa Inquiry Programme
The Waitangi Tribunal have stated that the “kaupapa inquiries programme provides an inquiry pathway for
claims outside of district inquiries, which raise national y significant issues affecting Māori as a whole or a section
of Māori in similar ways, and which have not previously been fully heard, reported or settled. Each kaupapa
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inquiry wil focus on a single issue or cluster of related issues.”
5
In 2019, in response to feedback from some claimants over different inquiries, the Waitangi Tribunal Chair
issued a new memorandum concerning how it was planning to run kaupapa inquiries going forward, fol owing
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a continuous review approach. The Chair clarified that:
“The
purpose of a kaupapa inquiry is not to conduct a general exploration of al aspects of its thematic topic
or one of the totality of Māori experience of Crown actions and omissions. Rather it is to investigate and
make findings on the Treaty breaches and prejudice al eged by the claimants in respect of the kaupapa issue
or issues of national significance that fal within the scope of that topic. Kaupapa issues may themselves be
broadly or narrowly defined and may be given differing levels of priority by claimants.”
6
At the outset, it was intended that kaupapa inquiries would fol ow a similar process to that used in most district
inquiries. This meant proceeding to hearing once the eligible claims have been combined for joint inquiry, a
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sufficiency of technical, claimant and Crown evidence has been filed, the issues for inquiry have been
determined, and the parties have confirmed their readiness to proceed.
7 The Waitangi Tribunal Chair advised,
however, that the Tribunal would have some flexibility in process- for example, there may be agreement on
early hearing of claimant oral evidence.
8 INFORMATION
In 2019, the Tribunal Chair announced
9 an additional two steps may be introduced at the discretion of the
Chair prior to appointing a presiding officer and panel for the inquiry, in order to speed up the process and
appear to be useful innovations:
1
Strategic Direction 2014-2025 (Waitangi Tribunal, 2 July 2014). Available here:
https://www.waitangitribunal.govt.nz/news/waitangi-tribunal-strategic-direction-launched-2/.
2
Strategic Direction 2014-2025 (Waitangi Tribunal, 2 July 2014). Available here:
https://www.waitangitribunal.govt.nz/news/waitangi-tribunal-strategic-direction-launched-2/
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3 Previously, kaupapa claims were only considered if it was a matter of urgency or as part of a district inquiry programme.
In his 2015 memorandum, the Chairperson of the Waitangi Tribunal noted that “many kaupapa issues are, by definition,
national in scope and not suited to a district inquiry context, even though many have a significant historical dimension.”
Memorandum of the Chairperson concerning the Kaupapa Inquiry Programme (Waitangi Tribunal, 1 April 2015) “The 2015
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Memorandum”, paragraph 8, pg. 3.
4 Available her
e: https://www.waitangitribunal.govt.nz/inquiries/kaupapa-inquiries/.
5 The 2015 Memorandum, paragraphs 2-3, pg. 2.
6
Memorandum of the Chairperson concerning the Kaupapa Inquiry Programme (Waitangi Tribunal, 27 March 2019) “The
2019 Memorandum”, paragraph 13, pg. 3.
7 The 2015 Memorandum, paragraph 36, pg. 8.
8 The 2015 Memorandum, paragraph 37, pg. 8.
9 The 2019 Memorandum, paragraphs 28 to 31, pages 5 to 6.
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Draft – Not Government Policy
1.
Claimants intending to participate: The Tribunal wil :
a. Distribute a preliminary list of claims
registered with the Tribunal that appear to relate to the
inquiry’s kaupapa issues and request that claimants indicate whether they wish to participate in the
inquiry; and
b. Request any claimant intending to participate particularise or otherwise amend their claim and
identify any issues that they think that the Tribunal should prioritise for early inquiry.
2.
Exploratory scoping report: To assist with planning and identifying the principal issues, the Tribunal
would commission an exploratory scoping report as a preliminary step. Terms of reference may vary but
general y this would include:
a. A preliminary outline and analysis of statements of claim likely to fal within the scope of the inquiry
and of the kaupapa issues to which they appear to relate;
b. An indication of whether and to what extent any such issues concern current Crown policy and
practice; and
c. A brief description and select, annotated bibliography of the main evidential resources in the public
domain that are likely to be relevant to the identified kaupapa issues.
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Eligibility for Kaupapa Inquiry
In the 2015 Memorandum, the Waitangi Tribunal Chair stated that each kaupapa inquiry wil usual y have the
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fol owing characteristics of scope and significance:
•
The inquiry wil be organised around a theme that brings together al aspects of a kaupapa claim issue
or a cluster of related issues.
•
The kaupapa issue should extend to Māori as a whole or to a section of Māori on a national scale,
whether or not the issue by its nature is limited to particular geographical areas.
•
The claim grievance should have broadly similar features, as should the nature and impacts of the
Crown legislation, policies, acts and omissions al eged to be in breach of the Treaty.
•
The kaupapa issue should be of national significance to Māori in terms of the seriousness of the Treaty
breaches al eged or to the nation in terms of potential impact on government policy or resources.
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The range of kaupapa issues wil also be influenced by the extent to which an issue (or sub-issue) has been
addressed in previous Tribunal inquiries
10 and whether an issue met the national scale threshold. The Waitangi
Tribunal’s
Strategic Direction document states that it intends to provide alternative processes for claims that fell
into these excluded categories. In 2019, the Tribunal Chair stated that it had established a “Standing Panel
process for hearing remaining historical claims and a process for remaining contemporary claims would
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commence once the district inquiries have been completed.”
11
The Chair advised that the overal thematic scope of the kaupapa inquiry programme was intended to enable
claimants to bring al eligible claims to the Tribunal for a hearing – an “inclusive approach”
12.
In 2019, the Chair clarified how this
inclusive approach worked by setting out the fol owing three-part
threshold test for participation of claims raising specific and local issues in a kaupapa inquiry
13:
1.
Nationally significant claim issues: Once the Tribunal is satisfied that the national significance
threshold has been met, any claimant whose claim relates to the issue (including specific and local
claims brought on behalf of others, e.g. whānau, hapū) may seek to participate in the subsequent
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kaupapa inquiry. Claims are not required to meet the threshold individual y.
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10 i.e. no hearing of a claim or part claim a second time (unless a claim’s kaupapa grievance was severed from the inquiry
and the Tribunal noted it was excluded from the report or only partial y inquired into e.g. under urgency) and for registered
claims yet to be heard but which raise kaupapa issues that were heard and reported on in a previous inquiry eligibility
depends on the extent to which they raise new and substantive aspects of the kaupapa issue. The 2015 Memorandum,
paragraph 15, pg. 4.
11 The 2019 Memorandum, paragraph 44, pg. 8.
12 The 2015 Memorandum, paragraph 13, pg. 4.
13 The 2019 Memorandum, paragraphs 36 to 43, pg. 7.
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Draft – Not Government Policy
2.
Māori widely affected: At its simplest, this threshold may be met by a single claim brought on behalf
of al Māori said to have suffered prejudice as a result, provided that the claimant is a member of
the affected group. The threshold is also met where a group of claims brought by individuals and
groups on their own behalf that, taken together can be regarded as representing most of the affected
Māori (e.g. in the Māori Military Veterans Inquiry).
3.
Similarity of experience of the Crown policy or action complained of: The Tribunal wil hear and
report on such claims on the basis that the claimants assert that they have been similarly affected in
respect of the al eged Treaty breaches.
How are Kaupapa Inquiries prioritised?
In 2015, the Chair of the Tribunal established that the fol owing factors
14 would be taken into account to
determine priority of kaupapa claims, with some flexibility as the programme progressed:
•
Removal of the Tribunal’s ability to inquire (i.e. is something about to happen that would prevent the
Tribunal from hearing some or al of the claims if they are given a lower priority?).
•
Immediacy of the take or potential remedy (i.e. can something meaningful stil be done to remedy the
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grievances, is it time bound, is the take both live and current)?
•
Seriousness of the al eged breach or prejudice (i.e. how significant is the issue having regard to the
Treaty relationship – this takes into account the severity of the al eged Treaty breach and the severity
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and extent of the prejudice al eged to have resulted from it)?
•
Importance of the take to claimants (i.e. what is the weight of claimant interest in the take and how
important is the kaupapa take within the context of their claims as a whole?
•
Importance of take to Māoridom (i.e. how significant is the issue to Māori as a whole today? This
factor considers the overall significance of the take for Māori as a whole, by looking at the numbers of
Māori actually or potentially affected and the importance of the issue to Māori general y).
•
Importance of the issue to the nation (i.e. This factor particularly applies to matters affecting major
aspects of economic, social and environmental policy, particularly where there are large scale financial
implications or political / legal uncertainty).
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In the 2019 Memorandum, the Chair provided further advice on how the Waitangi Tribunal would be
enabling
pressing contemporary issues to be prioritised for rapid inquiry where early reporting. The six factors
outlined in the 2015 Memorandum (see above) stil apply, but there is a stronger focus on contemporary
kaupapa issues giving additional weight to the immediacy of the take or potential remedy.
15 In addition, the
Tribunal would:
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•
continue a targeted approach where appropriate to the nature of the issue (e.g. housing policy);
•
take a proactive approach to consulting affected claimants and the Crown on contemporary matters
that may merit an early and rapid kaupapa inquiry; and
•
prioritising issues within inquiries.
16
The Tribunal Chair also clarified the process for starting unlisted kaupapa inquiry claims where an early start
may be requested (effectively, a request for prioritisation). In these circumstances, the Tribunal may take
into account the fol owing matters:
•
Clarifying the issues that the claimants and the Crown propose to include in the kaupapa inquiry;
•
Establishing whether the issue(s) satisfy the threshold test for starting a kaupapa inquiry;
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•
Identifying which claims the claimants wanted the Tribunal to hear, particularly pressing
contemporary claim issues concerning current Crown policy and practice;
•
Confirming claimant and Crown readiness to proceed; and
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•
Any consequential impacts of delaying other claims that are scheduled.
14 The 2015 Memorandum, paragraph 22, pp. 5-6.
15 The 2019 Memorandum, paragraph 10, pg. 3.
16 The 2019 Memorandum, pg. 4.
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Draft – Not Government Policy
What is the nature and status of the Kaupapa Inquiries?
The kaupapa programme was designed to meet two of the Tribunal’s strategic goals, namely:
•
To achieve a significant reduction in the backlog of kaupapa claims by 2020. These include claims with
kaupapa grievances that are likely to be included in the historical Treaty settlements, as wel as other
claims with high priority issues.
•
To substantial y advance or complete the remaining kaupapa claims by 2025. These comprise claims
with non-district-specific historical grievances that are not included in historical Treaty settlements,
such as those raised by national organisations rather than tribal groups, and claims with contemporary
kaupapa grievances.
A list of scheduled, current and completed claims is outlined in the table below. As can be seen, while there is
significant mahi that has been done by the Waitangi Tribunal in hearing substantial kaupapa inquiries, we are
only two years out from their 2025 deadline set in their second strategic goal. In 2019, the Waitangi Tribunal
Chair advised that the Tribunal’s resources were heavily committed and that this would limit the Tribunal’s
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ability to progress the next inquiries in the Kaupapa Inquiry Programme.
17 At this stage there are six kaupapa
inquiries yet to commence and only one kaupapa inquiry that has been completed.
Priority
Kaupapa Inquiry
Status
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Pre-
The National Fresh Water and Geothermal Resources Inquiry (Wai
Stages 1 and 2 complete,
2015
hearings to commence in
2358). This inquiry was commenced prior to the formal kaupapa
2024
inquiry programme being established.
1
The Military Veterans Kaupapa Inquiry (Wai 2500)
Commenced
2
The Health Services and Outcomes Kaupapa Inquiry (Wai 2575)
Stage 1 complete, hearing
stage 2.
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3
The Marine and Coastal Area (Takutai Moana) Act Inquiry (Wai
Stage 1 complete, Stage 2
2660)
hearings complete
4
The Mana Wāhine Kaupapa Inquiry (Wai 2700)
Commenced in inquiry
research phase
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5
The Housing Policy and Services Kaupapa Inquiry (Wai 2750)
Stage 1 complete
6
Constitution, self-government, and the electoral system services
Commenced
7
Education and outcomes
Scheduled
8
Social services and social development
Scheduled
9
Economic development
Scheduled
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10
Identity and culture
Scheduled
11
Natural resources and environmental management
Scheduled
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12
The Justice System Kaupapa Inquiry (Wai 3060)
Commenced
13
Citizenship rights and equality
Scheduled
17 The 2019 Memorandum, paragraphs 24-25, pg. 5.
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Draft – Not Government Policy
14
Trans-Pacific Partnership Agreement – Stage 2 (Wai 2522)
Completed in 2021
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