Schedule 2 Provisions relating to the Waitangi Tribunal

s 4(6)

1 Member to continue in office to complete proceedings

Any member of the Tribunal whose term of office has expired or who has resigned from office shall, whether or not that member’s successor has come into office, continue in office for the purpose of completing any proceedings heard by the Tribunal before the expiry of the member’s term of office or the member’s resignation.

Schedule 2 clause 1: replaced, on 1 January 1989, by section 6(1) of the Treaty of Waitangi Amendment Act 1988 (1988 No 233).

2 Vacation of office

(1)

Any member of the Tribunal appointed under section 4(2)(b) may at any time resign his or her office by delivering a notice in writing to that effect to the Minister.

(2)

A member of the Tribunal appointed under section 4(2)(b) shall be deemed to have vacated his or her office if he or she dies or is, under the Insolvency Act 2006, adjudged bankrupt.

(3)

Any member of the Tribunal appointed under section 4(2)(b) may at any time be removed from office by the Governor-General for inefficiency, inability to perform the functions of the office, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.

(4)

The powers and functions of the Tribunal shall not be affected by any vacancy in its membership.

Schedule 2 clause 2: replaced, on 1 January 1989, by section 6(1) of the Treaty of Waitangi Amendment Act 1988 (1988 No 233).

Schedule 2 clause 2(2): amended, on 3 December 2007, by section 445 of the Insolvency Act 2006 (2006 No 55).

Schedule 2 clause 2(3): amended, on 1 January 2002, by section 70(1) of the Human Rights Amendment Act 2001 (2001 No 96).

3 Remuneration, allowances, and expenses of members of Tribunal

(1)

There shall be paid to the members of the Tribunal such remuneration by way of fees, salary, wages, or allowances as may from time to time be fixed, whether generally or in respect of any particular member or members of the Tribunal, by the Remuneration Authority.

(2)

Any decision under subclause (1) shall take effect on such date (whether the date thereof or any earlier or later date) as may be specified therein. If no such date is specified, the decision shall take effect on the date thereof.

(3)

The Tribunal is hereby declared to be a statutory Board within the meaning of the Fees and Travelling Allowances Act 1951.

(4)

There shall be paid to the members of the Tribunal travelling allowances and travelling expenses, in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply accordingly.

Schedule 2 clause 3: replaced, on 1 January 1989, by section 6(1) of the Treaty of Waitangi Amendment Act 1988 (1988 No 233).

Schedule 2 clause 3(1): amended, on 1 April 2003, by section 4(1) of the Remuneration Authority (Members of Parliament) Amendment Act 2002 (2002 No 54).

4 Deputy members
[Repealed]

Schedule 2 clause 4: repealed, on 1 January 1989, by section 6(1) of the Treaty of Waitangi Amendment Act 1988 (1988 No 233).

5 Sittings of Tribunal

(1)

The persons to constitute the Tribunal for the purposes of any sitting of the Tribunal shall comprise—

(a)

as presiding officer—

(i)

the Chairperson; or

(ii)

a Judge of the Maori Land Court appointed by the Chairperson to act as presiding officer; or

(iii)

a member of the Tribunal appointed by the Chairperson to act as presiding officer; and

(b)

such other members of the Tribunal (being not less than 2 and not more than 6) as are appointed by the Chairperson.

(2)

Only a member of the Tribunal who is a barrister or solicitor of the High Court of at least 7 years’ standing, shall be qualified for appointment as presiding officer under subclause (1)(a)(iii).

(3)

Where a Judge of the Maori Land Court acts as presiding officer pursuant to subclause (1)(a)(ii), that Judge shall, while he or she holds office as presiding officer, be deemed to be a member of the Tribunal.

(4)

Sittings of the Tribunal shall be held at such times and places as the Tribunal or the presiding officer from time to time appoints.

(5)

Any sitting of the Tribunal may be adjourned from time to time and from place to place by the Tribunal or the presiding officer.

(6)

The powers conferred on the Tribunal are exercisable notwithstanding the absence from any sitting of the Tribunal of any of the persons constituting the Tribunal for the purposes of the sitting so long as—

(a)

the presiding officer is present; and

(b)

at least 2 of the other members constituting the Tribunal for the purposes of the sitting are present; and

(c)

at least one of the members present is Maori.

(7)

In the event of disagreement in respect of any matter, the decision of the majority of the members dealing with the matter shall be the decision of the Tribunal, and, where those members are equally divided, the decision of the presiding officer shall be the decision of the Tribunal.

(8)

The Tribunal may meet in private or in public, as the Tribunal from time to time decides. The presiding officer shall cause such notice as he or she thinks fit to be given of any public sitting of the Tribunal to persons likely to be affected thereby.

(9)

Except as expressly provided in this Act, the Tribunal may regulate its procedure in such manner as it thinks fit, and in doing so may have regard to and adopt such aspects of te kawa o te marae as the Tribunal thinks appropriate in the particular case, but shall not deny any person the right to speak during the proceedings of the Tribunal on the ground of that person’s sex.

(10)

After consulting whoever, in his or her opinion, is appropriate, the Chairperson of the Tribunal may issue practice notes as to the practice and procedure of the Tribunal.

Schedule 2 clause 5: replaced, on 1 January 1989, by section 7(1) of the Treaty of Waitangi Amendment Act 1988 (1988 No 233).

Schedule 2 clause 5(10): inserted, on 13 December 2006, by section 7 of the Treaty of Waitangi Amendment Act 2006 (2006 No 77).

5AA Chairperson may appoint replacement presiding officer

(1)

For the purposes of an inquiry into a particular claim or other matter under section 5(1), the Chairperson may appoint another member of the Tribunal or a Judge of the Maori Land Court to replace a presiding officer or former presiding officer holding office under clause 5(1)(a).

(2)

Clause 5(2) and (3) applies to a replacement appointment under subclause (1).

Schedule 2 clause 5AA: inserted, on 10 April 2003, by section 4 of the Treaty of Waitangi Amendment Act 2003 (2003 No 13).

5AB Chairperson may appoint replacement member

For the purposes of an inquiry into a particular claim or other matter under section 5(1), the Chairperson may appoint another member of the Tribunal to replace a member or former member holding office under clause 5(1)(b).

Schedule 2 clause 5AB: inserted, on 10 April 2003, by section 4 of the Treaty of Waitangi Amendment Act 2003 (2003 No 13).

5AC Conditions applying to replacement appointments

(1)

An appointment made under clause 5AA or clause 5AB may be made before or after the Tribunal has begun to inquire into a particular claim or other matter under section 5(1).

(2)

The power conferred on the Chairperson by clauses 5AA and 5AB may be exercised only if—

(a)

the presiding officer or member holding office under clause 5(1) has ceased to hold office—

(i)

as provided for in clause 2; or

(ii)

in the case of a Judge of the Maori Land Court, as provided for in section 12 of Te Ture Whenua Maori Act 1993:

(b)

the personal circumstances of the presiding officer or member holding office under clause 5(1) make that person unable by reason of his or her physical or mental condition to continue to participate in the inquiry into the particular claim or other matter:

(c)

it would be unreasonable to expect the presiding officer or member holding office under clause 5(1) to continue to participate in the inquiry into the particular claim or other matter because of his or her personal circumstances.

(3)

If the Tribunal has commenced its inquiry into the particular claim or other matter, the Chairperson must not exercise the power conferred by clause 5AA or clause 5AB unless—

(a)

there is an adequate record of the inquiry that has already been heard by the Tribunal; and

(b)

it is reasonable to expect the person appointed to the Tribunal under clause 5AA or clause 5AB to review the record of that inquiry.

(4)

For the avoidance of doubt, the power conferred by clauses 5AA and 5AB may be exercised even if the relevant circumstance under subclause (2) arose before the commencement of the Treaty of Waitangi Amendment Act 2003.

Schedule 2 clause 5AC: inserted, on 10 April 2003, by section 4 of the Treaty of Waitangi Amendment Act 2003 (2003 No 13).

5AD Chairperson may appoint acting presiding officer

(1)

The Chairperson may appoint an acting presiding officer if the presiding officer appointed under clause 5(1)(a) for the purposes of the particular claim or other matter under section 5(1) is temporarily unable to be present for the whole or part of a sitting because of—

(a)

his or her illness; or

(b)

unforeseen circumstances that prevent his or her attendance.

(2)

Only a member of the Tribunal who is a barrister or solicitor of the High Court of at least 7 years’ standing is qualified for appointment under subclause (1).

(3)

In making an appointment under this clause, the Chairperson must fix and state the period for which the acting presiding officer is appointed.

Schedule 2 clause 5AD: inserted, on 10 April 2003, by section 4 of the Treaty of Waitangi Amendment Act 2003 (2003 No 13).

5AE Conditions applying to appointment of acting presiding officer

(1)

The power conferred on the Chairperson by clause 5AD may be exercised only if, in the opinion of the Chairperson, the Tribunal can, with an acting presiding officer, properly continue to exercise its functions to inquire into the particular claim or other matter.

(2)

A person appointed to be an acting presiding officer under clause 5AD has, while that person is the acting presiding officer, the powers of a presiding officer under this Act.

Schedule 2 clause 5AE: inserted, on 10 April 2003, by section 4 of the Treaty of Waitangi Amendment Act 2003 (2003 No 13).

5A Power of Tribunal to commission research and receive report in evidence

(1)

The Tribunal may commission, or authorise a claimant to commission at the expense of the Tribunal, any person (whether or not a member of its staff appointed under clause 9)—

(a)

to investigate—

(i)

any matter relating to a claim under section 6; or

(ii)

any matter relating to an application under section 8D or section 8HE; or

(iii)

any other matter relating to the functions of the Tribunal; and

(b)

to prepare a report on any matter investigated under paragraph (a) and to submit that report for consideration by the Tribunal.

(2)

The Tribunal may receive any such report in evidence.

(3)

Every party to the proceedings shall be entitled—

(a)

to receive a copy of the report; and

(b)

to make submissions on it to the Tribunal.

(4)

Any party to the proceedings may, with the leave of the Tribunal, cross-examine the person by whom the report was made.

Schedule 2 clause 5A: replaced (with effect on 9 December 1987), on 30 June 1988, by section 5 of the Treaty of Waitangi (State Enterprises) Act 1988 (1988 No 105).

Schedule 2 clause 5A(1)(a)(ii): amended, on 25 October 1989, by section 41 of the Crown Forest Assets Act 1989 (1989 No 99).

6 Evidence in proceedings before Tribunal

(1)

The Tribunal may act on any testimony, sworn or unsworn, and may receive as evidence any statement, document, information, or matter which in the opinion of the Tribunal may assist it to deal effectually with the matters before it, whether the same would, apart from this section, be legally admissible evidence or not.

(2)

Witnesses appearing before the Tribunal may give their evidence in the Maori language.

(3)

Subject to subclause (1), the Evidence Act 2006 shall apply to the Tribunal in the same manner as if the Tribunal were a court within the meaning of that Act.

Schedule 2 clause 6(3): amended, on 1 August 2007, by section 216 of the Evidence Act 2006 (2006 No 69).

7 Right to appear

(1)

Any claimant or other person entitled to appear before the Tribunal may appear either personally or, with the leave of the Tribunal, by—

(a)

a barrister or solicitor of the High Court; or

(b)

any other agent or representative authorised in writing.

(2)

Any such leave may be given on such terms as the Tribunal thinks fit, and may at any time be withdrawn.

Schedule 2 clause 7(1)(a): amended, on 1 April 1980, pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124).

7A Appointment of counsel

(1)

The Tribunal may appoint counsel to assist it in respect of any proceedings or any part of any proceedings before the Tribunal.

(2)

The Tribunal may appoint counsel to assist the claimant in respect of any proceedings or any part of any proceedings before the Tribunal if it is satisfied that the matter is of sufficient importance or complexity to warrant such an appointment or that it would be unjust to the claimant not to make such an appointment.

(3)

Every counsel appointed under this clause shall be paid out of money appropriated by Parliament for the purpose such fee as may be agreed between the Tribunal and the counsel appointed.

Schedule 2 clause 7A: inserted, on 6 January 1986, by section 8 of the Treaty of Waitangi Amendment Act 1985 (1985 No 148).

8 Tribunal to be a Commission of Inquiry

(1)

The Tribunal shall be deemed to be a Commission of Inquiry under the Commissions of Inquiry Act 1908, and, subject to the provisions of this Act, all the provisions of that Act, except sections 11 and 12 (which relate to costs), shall apply accordingly.

(2)

The Chairperson of the Tribunal, or any other person, being the presiding officer at a sitting of the Tribunal or a member of the Tribunal purporting to act by direction or with the authority of the Chairperson,—

(a)

may issue directions or conduct conferences; or

(b)

may issue summonses requiring the attendance of witnesses before the Tribunal, or the production of documents; or

(c)

may do any other act preliminary or incidental to the hearing of any matter by the Tribunal.

Schedule 2 clause 8(2): replaced, on 1 January 1989, by section 8 of the Treaty of Waitangi Amendment Act 1988 (1988 No 233).

9 Staff of Tribunal

(1)

There may from time to time be appointed under the State Sector Act 1988 a Director of the Tribunal, a Registrar of the Tribunal, and such research officer or officers or other staff as may be necessary for the efficient operation of the Tribunal.

(2)

Any person appointed to any position under subclause (1) may hold that position either separately or in conjunction with any other position in the Public Service.

Schedule 2 clause 9: replaced, on 6 January 1986, by section 9 of the Treaty of Waitangi Amendment Act 1985 (1985 No 148).

Schedule 2 clause 9(1): amended (with effect on 9 December 1987), on 30 June 1988, by section 6 of the Treaty of Waitangi (State Enterprises) Act 1988 (1988 No 105).

Schedule 2 clause 9(1): amended, on 1 April 1988, pursuant to section 90(a) of the State Sector Act 1988 (1988 No 20).

9A Power of Tribunal to refer claim for mediation

(1)

The Tribunal may from time to time refer to any member of the Tribunal or the Director of the Tribunal or any other person any claim submitted to the Tribunal under section 6.

(2)

Where a claim is referred to a member of the Tribunal under subsection (1), that member shall not sit as a member of the Tribunal for the purposes of the inquiry into that claim.

Schedule 2 clause 9A: inserted (with effect on 9 December 1987), on 30 June 1988, by section 7 of the Treaty of Waitangi (State Enterprises) Act 1988 (1988 No 105).

9B Duties in relation to claim referred for mediation

The person to whom a claim is referred under clause 9A shall use his or her best endeavours to bring about a settlement of that claim.

Schedule 2 clause 9B: inserted (with effect on 9 December 1987), on 30 June 1988, by section 7 of the Treaty of Waitangi (State Enterprises) Act 1988 (1988 No 105).

9C Settlement of claim referred for mediation

(1)

Where a claim referred under clause 9A is settled, the person to whom the claim was referred shall record in writing the terms of the settlement, which shall be signed and dated by the representatives of the parties.

(2)

The terms of settlement shall be given to the Tribunal by the person to whom the claim was referred.

(3)

When the Tribunal has received the terms of settlement, the Tribunal may include those terms in a recommendation under section 6(3).

Schedule 2 clause 9C: inserted (with effect on 9 December 1987), on 30 June 1988, by section 7 of the Treaty of Waitangi (State Enterprises) Act 1988 (1988 No 105).

9D Reference back to Tribunal of unsettled claim

(1)

If a claim that has been referred under clause 9A has not been settled, the person to whom the claim was referred shall refer the claim back to the Tribunal if—

(a)

that person considers the claim unlikely to be settled; or

(b)

the Tribunal requires that person to do so.

(2)

Where a claim is referred back to the Tribunal under subsection (1), the person to whom the claim was referred shall deliver to the Tribunal a written record showing separately—

(a)

those matters on which agreement is reached between the parties; and

(b)

those matters on which no agreement is reached between the parties.

Schedule 2 clause 9D: inserted (with effect on 9 December 1987), on 30 June 1988, by section 7 of the Treaty of Waitangi (State Enterprises) Act 1988 (1988 No 105).

10 Seal of Tribunal

The Tribunal shall have a seal which shall be appended to all reports and recommendations made by it.