Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
by Tom Bennion
The Commonwealth is proposing to establish a Native Title Tribunal to hear and decide claims to common law native title. State tribunals may also be established provided they conform to Commonwealth criteria.1
Establishing appropriate bodies and procedures to give substance to indigenous rights within a mono-cultural legal framework is an exercise fraught with difficulty. It raises deep questions about the nature of law in society and what is required to achieve fairness. Reviewing the precedent-setting Northern Territory land rights legislation, one commentator has remarked:
'When the concepts 'Aboriginal land rights' and 'legislation' are juxtaposed, it is suggested that insuperable difficulties may be encounted [sic]. These arise whenever a majority introduced culture espousing positivism attempts to deal justly and sensitively with the needs of a radically different indigenous culture espousing very different values and philosophies."2
He concludes that it is best to agree that 'the legislation involved will be basically inadequate' because of these 'intrinsic limitations'. Consequently the approach should be to recognise 'the precise nature and extent of the failure, and devise a 'workable remedy.3
The body which hears Maori claims to land and other resources, the Waitangi Tribunal, has been one of the several models studied by the Commonwealth in the preparation of its response to the High Court decision on common law native title.4
What does this model have to offer? This article will attempt to briefly answer that question.
The Waitangi Tribunal was established in 1975 to hear and report on claims by Maori people that they have been, or may be, 'prejudicially affected' by laws, actions or policies of the Crown which are in breach of the principles of the Treaty of Waitangi.5 Since 1985 the Tribunal has been able to retrospectively consider claims about events since 6 February 1840, the date on which the treaty was signed.6 Consequently, the Waitangi Tribunal reports mainly on historical loss rather than present rights - as a native title tribunal would do. Any comparison needs to be conscious of this important jurisdictional difference.
One jurisdictional point is however worth mentioning. The Tribunal is required to consider the Maori text of the Treaty, as well as the English text.7 This enhances its ability to appreciate Maori views of the Treaty bargain. To give a simple example, where the English text guarantees 'possession of lands, etc., the equivalent Maori text uses the words te tino rangatiratanga, which loosely translates as 'full chiefly authority'. This has modernly been equated with local self-government.8 Such a result could not have been easily achieved if debate had been confined to the meaning of the word 'possession'. Maori words and phrases are now becoming a commonplace in New Zealand legislation.9
This experience suggests that when language from the indigenous groups finds its way into written 'black-letter' law, the result is a widened perspective on indigenous culture and norms.10
The Waitangi Tribunal is not a court, but a non-judicial inquisitorial body, with the powers of a commission of inquiry.11 Unlike a court, an inquisitorial body is able to actively seek out information, and the Tribunal has made full use of this facility, sometimes itself raising matters which have not been mentioned by parties in a claim.12 This accords with the broad mandate of the Tribunal, to achieve substantive justice by making recommendations to prevent future injustices.13
The Tribunal has 17 members, with about equal numbers of Maori and non-Maori, and sits in divisions as small as three members. Each sitting is presided over by a judge of the Maori Land Court (a specialist court which administers land Maori retain from pre-colonial times) or a barrister or solicitor of 7 years standing.14
The Minister of Maori Affairs makes appointments to the Tribunal, in consultation with the Minister of Justice.15 There is no formal requirement for consultation with Maori groups, which is a weakness, although informally nominations are advanced. The Minister in making appointments must "...have regard not only to a person's personal attributes but also to a person's knowledge of and experience in the different aspects of matters likely to come before the Tribunal".16
All members, both legal and non-legal, have decision-making power. They are not simply assessors. This means that final reports have a direct input from elder experts on Maori norms, historians and other Maori and non-Maori academics and lawyers. Members to hear any particular claim are normally drawn from the range of skills available having regard to the particular issues of law, history or Maoritanga (Maori culture) the claim raises. Tribunal reports reflect this input, not only in content, but also increasingly in format, for example reproducing relevant waiata (songs) and whakntauaki (proverbs)17
Adherence to the requirements of natural justice and fairness are maintained by the judge of the Maori Land Court presiding over each sitting (or a lawyer of 7 years standing). This is important to reduce the chance of review proceedings. Such proceedings have been only rarely threatened, and never yet followed through.18
The Tribunal reports to the claimants and the Crown and, where breaches of Treaty principles are found, recommends appropriate remedial action by the Crown. The form of recommendations is not circumscribed.19 The return of land, monetary compensation, law changes or simply general negotiations have been recommended. To date most recommendations, with a few notable exceptions, have been accepted and fully or partially implemented.20
The Treaty of Waitangi Act 1975 provides that "the Tribunal may regulate its procedure in such a manner as it thinks fit, and in doing so may have regard to and adopt such aspects of te kawa o to marae [protocols of Maori meeting places] as the Tribunal thinks appropriate in the particular case.21 The general approach has been outlined by the chairperson of the Tribunal, Maori Land Court Chief Judge E. T. J. Durie:
"In considering the accommodation of Maori in the law, the Tribunal was faced with various options, including legal pluralism, and the division of legal services to provide separate units for Maori. It chose instead what might be described as a single jural order with bicultural capabilities as the option most expressive of the treaty and best suited to the New Zealand milieu."22
It was considered that were the Tribunal to operate using the rules from one Treaty partner it would "invite the criticism that the means determined the end".23
The Tribunal is anxious that potential claimants are not discouraged by formal procedural requirements. Claimant groups range from corporate bodies with their own lawyers, to small family groups unfamiliar with legal procedures and, at this initial stage, without the funds for legal advice. The only specific requirement in the legislation is that at least one Maori individual is named as bringing the claim. There is not even a requirement of writing - presumably a claim might be made orally!24 There are therefore no set legal forms for a claim, no filing fees, nor any list of detailed matters to be included such as a precise description of the land concerned, the individuals affected, etc. It is understood that a claim will inevitably develop as it progresses, and amendments are regularly allowed and in some cases positively encouraged if later evidence suggests them 25 Consequently, a brief letter raising a prima facie grievance will be registered as a matter requiring further investigation by the Tribunal.
For hearings themselves, the Tribunal has recognised that "there are probably few things so culture-laden as the techniques societies have developed to encourage speakers to tell the truth."26 In other words, for receiving Maori evidence, an openness to Maori forms and techniques provides as good a guarantee of truth-telling as the formalities and sworn oaths of an English-style courtroom.
In addition, the Tribunal is not bound by the rules of evidence.27 It may consider myths, legends, waiata and extended genealogies which are important Maori evidence in this context but would in a court setting be regarded as hearsay.
The Tribunal often sits on marae. Wherever it sits, evidence may, as of right, be given in the Maori language.28 A Tribunal member who is a kaurnatua (Maori elder of standing and an expert in protocol) chairs sessions where Maori witnesses, particularly other kaumatua, provide evidence. A kaurnatua will never be stopped and questioned when giving important oral evidence (which can take hours and sometimes days). Cross examination is discouraged, because this would be insulting of the elder's standing in the eyes of the community, although questions of clarification are often put. It is felt there are adequate safeguards provided in the marae setting and expertise of the Tribunal membership. Rigorous examination in English would in all probability miss important cultural nuances and confuse rather than clarify.
Speakers who are associated with the claiming group will often act as official translators. This practice it is felt enables a more accurate presentation of the evidence which bare translations could not produce. For example, words used for the involuntary loss of land, 'muru' and 'raupatu', have area-specific meanings depending on different historical events in those areas. There are adequate checks in that tapes and transcriptions of proceedings are available to parties if requested, and the Crown will often have its own translator present.
The broad nature of the Tribunal inquiry requires other innovations. For example, historical, archaeological and similar written evidence of technical complexity is not directly cross-examined. Questions of clarification are asked on the day and detailed examination takes place by way of written memos and further questions of clarification at later hearings.
Other features require a passing mention: the legal aid available to claimant groups modelled on legal aid available in normal civil matters29; the ability of the Tribunal to commission expert research3O, and the presence of ‘in-house’ researchers.31 The power to call conferences32 and appoint mediators33 have also proved essential in expediting the investigation and reporting of claims.
The High Court decision has suggested Aboriginal land holding systems should be properly recognised. To achieve this it would seem essential that any tribunal approaching the issue try as far as possible to adapt its procedures to gain a full appreciation of the Aboriginal evidence presented. Several important features are suggested in the proposed legislation. These should be regarded as minimum to achieve true fairness, and their application will be all-important. The work of the Aboriginal Lands Commissioner under the Northern Territory legislation, which has been operating since 1978, must of course be the primary model. Some Waitangi Tribunal features and aspects of its approach may be useful to consider: the status of assessors; the wording of the jurisdiction; the form in which claims are made; procedures at hearing as to use of language, cross-examination, translation; and generally the use made of indigenous cultural forms to assist truth-telling.
If the New Zealand experience says nothing else, it suggests that to properly consider the indigenous viewpoint, native title tribunals should fully exploit provisions in the law which give them procedural latitude. If there is any hesitancy about this, it is perhaps worth considering for a moment the reverse situation - would it be considered fair or 'equality before the law' if land ownership issues of non-aboriginals could only be judged on Aboriginal reserves by elders speaking their own language?
1. Mabo. Outline of Proposed Legislation on Native Title, September 1993, para 75 ff. Commonwealth standards for the states regard a consistent approach to recognition of native title, and consistent processes including efficient notification and registration of claims, involvement of appropriate expertise including Aboriginal and Torres Strait Islander expertise, informal, accessible and expeditious procedures, a capacity for mediation, adequate resourcing, consultation on appointments; see para 78.
2. Keon-Cohen, B. A., "Aboriginal Land Rights in Australia: Beyond the Legislative Limits?" in Legislation and Society in Australia, Tomasic, R., ed., George Allen and Unwin Pty. Ltd., 1980,382 at 383.
3. Ibid.
4. Unpublished ATSIC paper, 1993.
5. There is no set list of Treaty principles. They are articulated by the Tribunal in the course of its investigation of claims. The Tribunal has found in several reports that in relation to land and other natural resources, the Crown was under a general duty to vigilantly protect Maori from the excesses of colonisation and ensure they retained an adequate land base to continue to develop economically and culturally after white settlement. See NgaiTahu Report and Muriwhenua Fishing Report, 1988.
6. Subsection 6(1) was amended by s3 of the Treaty of Waitangi Amendment Act 1985. Previously, claims were limited to matters arising after 10 October 1975.
7. Subsection 5(2), Trartyof Waiangi Ad 1975.
8. See Muriwhenua Fishing Report, 1988.
9. Eg., Conservation Act 1987, Environment Act 1986. Resource Management Act 1992, Tare Whwnna Maori (Maori Land) Act 1993.
10. In this regard, it is disturbing to see that the NSW Native Titles Bill (Clause 47) proposes a definitive list, solely in English, of the possible attributes of native title.
11. Clause 8(1) second schedule, Treaty of Waitargi Act 1975.
12. See comment in Dune and On, "The Role of the Waitangi Tribunal and the Development of a Bicultural Jurisprudence', NZ Universities Law Review No. 14,1990, p62.
13. The preamble reads in part, "And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty..." and section 6(3) provides that recommendations may provide "that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future".
14. Section 4 and clause 5 second schedule Treaty of Waitangi Act 1975.
I5. Ibid, Section 4(2)(b).
16. Ibid, Section 2A(b).
17. Eg., Ngei Tnhu, Sea Fisheries and Te Roan Reports.
18. Counsel representing the NZ fishing industry filed proceedings after the Tribunal's Muriwhnma Fishing Report in 1988 but these were subsequently withdrawn.
19. Subsection 6(3),Treaty of Wailangi Act 1975.
20. Oliver, W. H., Appendix II in Claims to the Waitangi Tribunal, 1991.
21. Clause 5(9), second schedule, Treaty of Waitangi Act 1975.
22. Note 12, p63.
23. Ibid.
24. See Section 6(1), Treaty of Waitangi Act 1975.
25. Note 12, p65.
26. Ibid, p69.
27. Second schedule, Clause 6(l), Treaty of Waitangi Act 1975.
28. Ibid, Second schedule, Clause 6(2). The Maori Language Act 1987 also provides that Maori may be spoken as of right in most courts and tribunals.
29. The Legal Services Act 1992.
30. Clause SA second schedule, Treaty of Waitangi Act 1975.
31. Clause 9 second schedule, Treaty of Waitangi Act 1975.
32. Ibid, Clause 8(2) second schedule. 33. Ibid, Clauses 9A-D second schedule.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1993/45.html