The Waitangi Tribunal, set up to address injustices against tangata whenua, has been accused of being unfair to Māori in the way it operates.
The Treaty of Waitangi. File photo. Photo: RNZ / Rebekah Parsons-King
The Tribunal has heard that a lack of access for claimants and vast inequities in resources between the Crown and Māori are perpetuating injustice.
This week's hearings are the latest in the Tribunal's wide-ranging kaupapa inquiries; this one examining how the justice system affects Māori. Its first two days were spent examining access to the Tribunal itself.
Ngāti Hine leader Pita Tipene used a whakataukī to describe how he saw things for claimant groups.
"He parirau ki te rangi, he tirohanga mutu ngā kore, he huruhuru ki te ururua, he timotimo haere," he told the hearing on its opening day: The Crown is like a soaring hawk, high above, beady eyed and predatory, ready to swoop with ease. Claimants, however, are like a kiwi: flightless, poking about in the dark.
"It goes a long way to describe the manufactured and the artificially constructed situation we are faced with as claimants in the Waitangi Tribunal," Tipene said.
"For the avoidance of any doubt, the Crown has the strong feathers and the capability in any inquiry, supported with much resource; we as the claimants are the kiwi."
The Waitangi Tribunal was set up nearly 50 years ago as a permanent commission of inquiry to keep watch over the Crown and address injustices.
But claimant Marise Lant said the Tribunal itself could often be the source of grievances.
"I believe it's dysfunctional," she said. "And a structure that's dysfunctional cannot represent or offer my people that fair representation in terms of the treaty."
To get before the Tribunal often involves a cumbersome process and vast amounts of time and resource.
That can be a tough ask for small, remote whānau, or poorly-resourced hapū, or smell-of-an-oily-rag community groups trying to go up against the machinery of the Crown.
For the past two days, the Tribunal has heard evidence of hurdles getting support from Te Arawhiti or Legal Aid, of cumbersome and bureaucratic criteria that did little to match what was needed.
Auckland's Waipareira Trust chief executive John Tamihere gave an example from a recent hearing into Oranga Tamariki.
"When a state agency has 118 lawyers employed within it, has the ability to reach out - at leisure and at its own whim - without any thought about cost of migrating in specialists, from QCs all the way through," he said, "that is not equality."
John Tamihere. File photo. Photo: RNZ
Counsel Cameron Hockly said the reality for claimants could not have been more stark.
Many claimants may only have a single lawyer running off a sliver of legal aid. Claimants can only offer koha to expert witnesses, and vast research reports are often done on voluntary time. In some cases, iwi tohunga are not considered experts in the Crown's criteria for legal aid.
"It's very difficult," Hockly said.
"You fall to Moana Jackson's situation, you know, are they willing to do it for a koha. If you're very lucky you might have an academic who's an expert on the kaupapa who's basically already covered it. But if those people aren't there or they're too busy, then it's very difficult."
Access was another barrier, he said.
Many whānau often had difficulty getting to hearings, while the Crown would have observers flown in to sit through the entire process - if it was ever held outside of Wellington.
"Claimants always want to be present, they really do. It's as much being the face to the claim, representing the group that they are there for. And it's about being present in a process that could have very serious implications for them."
Hockly, who has represented claimants on several significant inquiries, told the Tribunal the barriers were likely to be perpetuating injustices.
Tamihere said the way things stood was far from just.
"You just can't possibly suggest that when a Māori claimant comes against the full force of the state that there is equality before the law in terms of their ability to actually put their case and defend it."
The first stage of the inquiry runs until Friday.
