LAWPUBL 746 - Special Topic: Waitangi Tribunal: Past, Present and Future

Lecturer biography

Dr David V Williams holds a personal chair as Professor of Law at the University of Auckland, New Zealand. He was a Rhodes Scholar at Balliol College, Oxford and has tertiary qualifications in history, law and theology. He has taught and researched at the University of Dar es Salaam (Tanzania) and the University of Auckland. From 1991 to 2001 he was an independent researcher and barrister specialising in research relevant to Treaty of Waitangi claims by indigenous Maori concerning historic acts or omissions of the Crown. He is also an ordained priest in the Anglican Church.

He has worked as historian, lawyer and claims negotiator with many hapū and iwi in Aotearoa New Zealand, but especially with Ngāti Whātua Ōrākei from the days of the Bastion Point/Takaparawhau occupation in the 1970s right through to the Ngāti Whātua Ōrākei Claims Settlement Act passed in November 2012. He has been an expert witness in a number of legal proceedings concerning indigenous rights.

He has held visiting appointments at Exeter College and St John’s College in the University of Oxford, and at the University of Dar es Salaam. He has been elected to be Visiting Researcher at Corpus Christi College, Oxford in 2017. He has authored five books including Te Kooti tango whenua: The Native Land Court 1864-1909 (Huia, 1999) and A simple nullity? The Wi Parata case in New Zealand law and history (AUP, 2011). Additional publications include 16 book chapters, 37 refereed journal articles and 10 major technical reports.

Presently he is Co-Principal Investigator (with Prof Cris Shore, Social Anthropology, University of Auckland) in a Royal Society of New Zealand Marsden Grant researching ‘The Crown: Perspectives on a Contested Symbol and its Constitutional Significance in New Zealand and the Commonwealth.’

Course outline

Shortly before the Maori Land March reached Wellington in 1975 the Treaty of Waitangi Act 1975 was passed. It established the Waitangi Tribunal as a permanent commission of inquiry and embedded two texts of the Treaty of Waitangi into New Zealand law. This course will trace the development of the Waitangi Tribunal from its unpromising beginnings to the present, and then invite speculation as to what its future roles (if any) might be.

The various phases of the Tribunal’s emergence as a significant contributor to national debates on Treaty issues and historical injustice claims will be considered. A ‘toothless tiger’ chaired by Chief Judge Gillanders-Scott in the early years was transformed in the 1980s by Chief Judge Durie into a tribunal whose reports demanded deep reflection on the history of Crown/Māori relationships. In 1985 an expanded Tribunal was granted the power retrospectively to inquire into and report on acts and omissions of the Crown from 1840 onwards. Its reports from 1987 included radical reinterpretations of New Zealand history compared to that which most adults had learned in schools, though its recommendations to government tended to be somewhat pragmatic.

There will be a focus on the sea fisheries reports from 1988 to 1992 that led to the Sealords Deed and the Fisheries Claims Settlement Act 1992. The respective impacts of court litigation, tribunal hearings and political negotiations on the outcomes will be discussed. In the 1990s a funding flow from the Crown Forestry Rental Trust began to transform the nature and scope of tribunal hearings as the Tribunal moved away from claim by claim hearings, commissioned the Rangahaua Whānui national overview reports, and then moved into district-wide hearings of historical claims. This saw the emergence of a process often disparaged as “the Treaty industry” although others preferred to see elements of a truth and reconciliation process not dissimilar to the TRC in South Africa.

Later on the tribunal processes became the primary pathway to political negotiations with the Office of Treaty Settlements. Though the 1994 “fiscal envelope” proposals were virulently rejected initially by most Māori, in the years since almost all iwi have engaged in settlements negotiated under OTS’s Healing the Past, Building a Future policies. In the present century the Tribunal initiated  modifications to its hearing of claims designed to hasten the progress of claimants towards Treaty settlements. The arguments for and against the “new approach” of 2001 and the “new approach revisited” of 2005 will be discussed. A special topic will be an inquiry into the fact that the Tribunal has not once exercised its power (since 1988) to issue “binding recommendations.” Such recommendations have been sought on numbers of occasions, and the Tribunal has been chivvied along by the Supreme Court, no less, in Haronga v Waitangi Tribunal [2011] NZSC 53. Yet the power remains unexercised. How that fact ties in with parity issues in Treaty settlement negotiations will be considered. Finally, we will look to the future using the lens of Ko Aotearoa Tenei (Wai 262 Report, 2011) as the basis for considering the role of the Tribunal once the current round of Treaty settlements have been concluded.

Syllabus

Students who complete the course successfully should:

  • Be familiar with the Course Materials that will be provided to all enrolled students
  • Understand the evolution of the processes and procedures of the Waitangi Tribunal from 1975 to the present
  • Understand the intersections between law and policy in assessing the impact of Tribunal reports on government policies and on Treaty settlement outcomes
  • Choose and complete a topic for research that will focus on a specific element of Waitangi Tribunal jurisprudence or procedure

Assessment

Research Essay (90%)

Each student is required to submit a research essay of not more than 6,500 words. The topic of the essay must be approved in advance by the lecturer. The completed essay must be the student’s original work, based on primary and secondary sources. Students are expected to engage with the relevant legal issues by, for example, providing a conceptual analysis of the Tribunal’s reports, providing a critique of recommendations made by the Tribunal, examining the interface between law and policy in practice or developing proposals for future reform.

The essay must be properly referenced with footnotes; and it must include a bibliography (which is not included in the word count). Citations must comply with the rules contained in the 2nd ed of the New Zealand Law Style Guide.

Students will be required to sign a declaration when submitting their essays, confirming that the essay complies with the University’s plagiarism policy.

Essays must be submitted to the Faculty of Law not later than 12 noon on Thursday 11 October 2018.

Class presentation (10%)

On the final afternoon of the course each student will be asked to make a brief presentation (approximately five minutes) to the rest of the class on their proposed research essay topic. The mark will be based on the quality of the presentation and answers to any questions raised by other students.

Course details

Semester: Two
Type: Intensive
Points: 15
Dates: 2-4 August 2018
Time: 9am-5pm on each date
Venue: Building 810, Room 3.40
1-11 Short Street
Assessment due date: 11 October 2018

Contact details

Contacting lecturer

Email: dv.williams@auckland.ac.nz

Room 737 in Building 810 [1-11 Short Street]

Enrolment Details

Law Student Centre
Level 2, 1-11 Short St
Faculty of Law, University of Auckland

Email: postgradlaw@auckland.ac.nz