Whakatika ki Runga, first report from Waitangi Tribunal Justice Inquiry says claimants raising important issues are suffering hardship because of lack of Crown support

On Friday 17 February 2023 at 12pm the Waitangi Tribunal released its first report in its inquiry into the Justice system, Whakatika ki Runga. Over three weeks between July and October last year, the Tribunal heard about how claimants are funded for their important work bringing claims in the Tribunal. In only four months, the Tribunal has produced a quality report with practical guidance for the Crown.

The Tribunal has found that claimants have in most cases covered all their own costs to file claims and attend hearings on issues of national importance to all New Zealanders, and that this was wrong:

“The Waitangi Tribunal is a cornerstone of our constitution and claimants are the cornerstone of the Waitangi Tribunal. Unless they can participate fully in Tribunal processes without hardship to them, and in accordance with Māori cultural norms, the Waitangi Tribunal cannot fulfil the role intended for it.” [Whakatika ki Runga report page xiii]

“The Waitangi Tribunal’s kaupapa inquiries are addressing areas of policy and practice where Māori occupy the sorry end of all the statistics. … Claimants are not able to pay their own way through these processes precisely because those policy areas do not work in their favour. It is imperative that it is easy for them to come to this Tribunal. It should cause them no difficulty or hardship at all.” [Whakatika ki Runga report page 131]

Claimant Timoti Te Moke gave evidence that he had no funding to get to hearings and had chosen Wellington to complete his final year of medical school, because it was close to the Tribunal hearing room. He told the Tribunal he felt an obligation to pursue his claim to shine a light on racism that he and other Māori men suffer in dealings with Police, saying:

“there is nothing in it for me, and I am taking time out from my very important exams to do this mahi. But I see the importance of my claim.” [evidence of Timoti Te Moke]

The Crown had already agreed in hearings last year the important mahi of claimants and that claimants needed funding without delay:

“the Crown acknowledges the importance of claimant participation in Waitangi Tribunal processes and takes the concerns that claimants have raised seriously” [Crown opening submissions]

The evidence presented during Whakatika ki Runga has demonstrated, in particular, the need for the Crown to move expeditiously to establish a whole-of-Government, final policy to provide claimant funding for kaupapa inquiries, which is clear, consistent and provides adequate levels of funding to assist claimants to participate” [Crown closing submissions]

This report follows groundbreaking guidance from the Tribunal in the recent years on how New Zealand can move towards a future that honours Te Tiriti o Waitangi. The Northland Te Paparahi o Te Raki Reports have confirmed once and for all the Māori did not cede sovereignty, and the Hauora (2019) and Haumaru (2021) Reports on Primary Health and the COVID-19 response were watershed moments in progress to a truly equitable health system.

Mr Te Moke said today that he is impressed by the pace with which the Tribunal has once again been able to release nationally important, positive and future focussed report:

“I am excited that the Tribunal is moving quickly to create quality reports. I am anxious for my claim about Police Bias to be heard, because every week 16 Māori children are being convicted of a crime in Aotearoa and it has to stop”

Who is Timoti Aperahama Karora Te Moke?

Growing up poor in South Auckland Mr Te Moke’s experiences with the Police started when he was young boy. Several minor offences led to him serving time in prison as a teenager on remand (before being found guilty). In prison he was absorbed into a gang and further convictions followed throughout his teens, until he left the gang.

Many years later, while studying to be a paramedic, Mr Te Moke was attacked at work by a drunk man who fell and later died. He was charged with manslaughter, and a jury found him not guilty.

Mr Te Moke’s experience with the Police has had a negative impact on his life. Rather than being treated as a child in need of support he was seen as a criminal from an early age. The decision of Police to charge him with manslaughter delayed his qualifying as a paramedic, and ultimately, beginning medical studies. Mr Te Moke is in his final year of Medical School and only months away from becoming a doctor.

FREQUENTLY ASKED QUESTIONS

Who is Timoti Aperehama Karora Te Moke?

Growing up poor in South Auckland Mr Te Moke’s experiences with the Police started when he was young boy. Several minor offences led to him serving time in prison as a teenager on remand (before being found guilty). In prison he was absorbed into a gang and further convictions followed throughout his teens, until he left the gang. Many years later, while studying to be a paramedic, Mr Te Moke was attacked at work by a drunk man who fell and later died. He was charged with manslaughter, and a jury found him not guilty. Mr Te Moke’s experience with the Police has had a negative impact on his life. Rather than being treated as a child in need of support he was seen as a criminal from an early age. The decision of Police to charge him with manslaughter delayed his qualifying as a paramedic, and ultimately, beginning medical studies. Mr Te Moke is in his final year of Medical School and only months away from becoming a doctor.

What are Kaupapa Inquiries?

In 2015, the Waitangi Tribunal announced a programme of Kaupapa (thematic) inquiries into issues of national significance affecting Māori that require a whole-of-Government response. Already the Tribunal has released important Kaupapa Reports including the Hauora (2019) and Haumaru (2021) Reports on Primary Health and the COVID-19 response were watershed moments in progress to a truly equitable, and Treaty consistent health system. The ongoing work on Kaupapa inquiries is nationally important, as Aotearoa finds a way to heal from the past and create a Treaty consistent future for the benefit of all New Zealanders. The Kaupapa Inquiries build on the Tribunal’s Northland Te Paparahi o Te Raki Reports which have confirmed once and for all the Māori did not cede sovereignty. The guidance of the Tribunal is vital for the Crown, as the Crown generally acknowledges in Tribunal inquiries.

What is the Wai 3060 Te Rau o te Tika Justice System Inquiry about?

The justice system Kaupapa inquiry formally began in August 2021 and is known as Wai 3060.[1] The Kaupapa will focus primarily on issues in the Justice System affecting Māori looking particularly at the process and procedures in the criminal courts, police, prisons (including remand) and non-custodial sentencing, civil litigation in the district and senior Courts including legal aid, Family Court, Environment Court and Māori Land Court. Planning for the balance of the inquiry would follow the completion of a mini-inquiry into funding for claimants in the Waitangi Tribunal. This mini-inquiry is called Whakatika ki Runga and falls under the wider 3060 Kaupapa. The Kaupapa is broken into 3 main stages –

1. Whakatika ki Runga mini-inquiry which looks into funding in the Waitangi Tribunal;
2. Te Tuapapa o te Tika which will help frame and better understand the foundational Treaty Principles; and
3. Te Tahu o te Tika which will cover the different Justice Systems within New Zealand under the following 7 Heke:

a. Police;

b. Criminal courts, including criminal legal aid;

c. Prisons (including remand) and non-custodial sentencing;

d. Civil litigation including civil legal aid;

e. Family Court;

f. Environment Court;

g. Māori Land Court.

What was the Whakatika ki Runga mini-inquiry about?

The Whakatika ki Runga mini-inquiry was held over three weeks between July and October of 2022. The purpose of this mini-inquiry was to inquire into the funding of claimant participation in the Waitangi Tribunal.

What does funding have to do with the Justice System?

Whakatika ki Runga was an important first step to understanding the key issues surrounding Maori participation within our Justice System. The Waitangi Tribunal is a crown entity that was designed to look the Crown’s failure to uphold Te Tiriti o Waitangi. Bringing a claim to the Tribunal can be time consuming and costly. This tends to deter Māori from participating in the Waitangi Tribunal Process. This is a big problem, because the Tribunal cannot inquire into issues of national significance affecting Māori if Māori claimants cannot afford to pursue their claims.

Aren’t Māori funded through their crown settlements?

Treaty Settlements are for historical breaches of the Treaty, in particular the impoverishing of Māori through the Crown removing them from 95% of their lands. A Treaty settlement provides a small contribution towards those losses, which Māori groups accept as a positive step forward for them and New Zealand. The Kaupapa inquiries are looking at ongoing breaches of the Treaty that prejudicially affect Māori now. Already the Tribunal has released important Kaupapa Reports including the Hauora (2019) and Haumaru (2021) Reports on Primary Health and the COVID-19 response were watershed moments in progress to a truly equitable, and Treaty consistent health system.

[1] Retrieved from [Te Rau o te Tika: Justice System Kaupapa Inquiry (Wai 3060) | New Zealand Ministry of Justice]

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