Urgency applications in the Waitangi Tribunal: How urgent is urgent?

The Waitangi Tribunal (“the Tribunal”), established under the Treaty of Waitangi Act 1975, is a commission of inquiry charged with making recommendations on claims brought by Māori relating to actions or omissions of the Crown that potentially breach the promises made under the Treaty.

The Tribunal, through stringent planning processes, determines the order in which claims are to be heard.  In some circumstances, claimants may seek an adjustment to the priority that the Tribunal has given to their claim by outlining the main reasons for the urgent adjustment sought.  There are two circumstances in which parties involved in the Tribunal claim process may apply for urgent consideration:

• Applications for an urgent inquiry; and
• Applications for an urgent remedies hearing.

This article discusses the criteria set by the Tribunal in determining applications for urgent inquiry.

The Tribunal will only grant such applications in exceptional circumstances. This is because when applications for an urgent inquiry are filed, the Tribunal must review how it will allocate its resources to claims and inquiry districts.  This re-allocation may affect the order in which claims are heard and the Tribunal reserves its discretion to amend its priorities as circumstances require.

Criteria for applications seeking urgency

The Tribunal’s Guide to Practice and Procedure sets out the criteria for determining the proper allocation of resources.  The Tribunal has indicated that it will only grant an urgent hearing if it is satisfied that adequate grounds for priority have been made out.  Urgent hearings effectively delay hearings that are already in progress, such that the claims of those seeking urgency must be balanced against the claims involved in inquiries.

By way of illustration, some of the applications for urgent hearings that have been brought before the Tribunal to date include matters relating to the Kohanga Reo kaupapa, the grounding of the MV Rena and the preservation of the Maui’s dolphin.  The main basis of these applications, as stated above, is an alleged breach of the principles of the Treaty of Waitangi by the Crown.

Applications seeking an urgent inquiry

In deciding whether to grant an urgency application, the Tribunal will consider a number of factors and have particular regard to whether:

• The claimants can demonstrate that they are suffering, or are likely to suffer, significant and irreversible prejudice as a result of current or pending Crown actions or policies;
• There is no alternative remedy that would be reasonable for the claimants to exercise; and
• The claimants can demonstrate that they are ready to proceed urgently to a hearing, meaning that claimant briefs of evidence have been prepared and a majority of the technical research has already been undertaken.

In addition, the Tribunal will consider other factors, including whether:

• The claim challenges an important current or pending Crown action or policy;
• An injunction has been issued by the courts; or
• Whether other grounds justifying urgency have been made out.

Upon receipt of an application for urgency, the Chairperson or Deputy Chairperson may determine the application or may delegate consideration to a Tribunal Member.  The urgency application may be determined either on the papers or by convening a conference to hear submissions from the claimants and others who have a sufficient interest, including the Crown.  The process will normally be discussed amongst the parties involved and set out by the presiding officer.

The Tribunal will expect the parties, and especially the claimants seeking urgency, to be ready to do all that is reasonably possible to promote the prompt inquiry into, and reporting of, an urgent claim.  These circumstances will make it desirable or necessary that the Tribunal hear and report on an urgent claim as quickly as possible.   It is also important to note that upon approval, as with claims in the Tribunal District Inquiries, the costs of urgency applications are covered by the Ministry of Justice. 

Conclusion

It is generally understood that the Tribunal will only grant urgency in exceptional circumstances.   Despite this, and in light of the stringent conditions for urgency applications, the Tribunal will endeavour to give priority to claims that can satisfy the criteria.  Legal professionals with experience in this area of law can assess whether a particular claim meets the Tribunal criteria to be considered for urgency.

Jerome is a Solicitor in our Māori Legal Team and can be contacted on 07 958 7427.