Edward T. Durie – Tribunal head

Tu Tangata, Issue 12, 1 June 1983, Page 6

Edward T. Durie - Tribunal head

When Edward T. Durie jnr became the first Maori to be appointed a district judge of the Maori Land Court, he shunned publicity. When the same Judge Durie became the court’s first Maori chief judge in 1980 and automatically also chairman of the Waitangi Tribunal, he did not want a fuss made over it by the news media or anyone else. It was not particularly important or necessary, he believed, for the person in these roles to be a Maori. But the tribunal’s recent decision for the north Taranaki Te Atiawa tribe on the Motunui synthetic fuels plant Chief Judge Durie’s first decision as chairman changed his mind. In this the first real set of recommendations the tribunal has made in its six-year history, the quasijudicial body took the unusual and successful step of holding its hearings on the tribe’s marae at Manukorihi near Waitara. “When I listened to those Te Atiawa people talking I was suddenly conscious

of the fact that what they were saying I had heard from my grandparents when I was very, very young. “What they were saying was not new,’’ says Chief Judge Durie, grandson of the late Mr Mason Durie, a widely respected elder of the Ngati Kawhata and Rangitane tribes. “What was new was that they had the opportunity to say it in a public form. That’s when it struck me that it is significant to have a Maori in a position to hear it. “I’ve seen the relevance,’’ says the 43-year-old Gisborne-born judge with renewed vitality at the end of a long interview. “I think it is important when dealing with Maori things that you should have judges who can look at the law and look at the facts through the spectacles of the people they are dealing with... because they know those customs and habits.” Chief Judge Durie was educated at Fielding, Te Aute College, and Victoria University where he graduated with a

BA and LIB and was president of the New Zealand Federation of Maori Students.

The chief judge worked as a lawyer in Wellington and Tauranga before becoming a district Maori Land Court judge in 1974. He has also been active in church affairs.

The other two members of the tribunal Judge Durie chairs are New Zealand Maori Council chairman, Sir Graham Latimer, and Laurie Southwick QC. Judge Walter Willis substituted for Judge Southwick over the Taranaki decision only.

Tribunal chairman Chief Judge Durie hopes that future decisions can be issued with a Maori translation attached “so that some old (Maori) people can understand what it’s all about.”

He says the experience of hearing his first claim on the North Taranaki marae regardless of the national furore that followed the Government’s treatment of the tribunal’s recommendations was a feeling he personally could not describe.

“Overall, my feeling when I came away from there (the marae) was one of immense sadness,” he explains, adding with a smile that “old Maori people are always looking back on old times.”

Realisation

But the sadness came from his realisation that people of the “earlier generation were unable to say the sorts of things that these people can say today. It (the experience) was saying to me ‘what a long way we have progressed in New Zealand that nonMaori are now receptive to these expressions’.”

The Waitangi Tribunal established in 1975 as a brainchild of former Labour Maori Affairs Minister Mr Matiu Rata, has the power only to make recommendations to the Government.

Since it released its Taranaki decision recently, Mr Rata himself, now leader of the Mana Motuhake Party, has echoed calls of government ministers made when they were in opposition that the tribunal was toothless and needed retrospective powers to consider past acts and regulations.

Under the Treaty of Waitangi Act which set up the tribunal, it can look only at acts and policies of the Crown arising after enactment of the act in 1975.

Technicalities

The tribunal was able to adopt a very informal approach because it only has a power of recommendation, Chief Judge Durie says.

“If it had a power of final determination that would affect the rights and privileges and duties of individuals, then I think it would have been obliged to adopt a much more

formal procedure, and that’s the danger.

“I would advocate the informal atmosphere. I do not think that Maori people should be constrained by legal technicalities in bringing a case. Maori advocacy requires different rules of procedure and a totally different way of going about things.”

The adversarial set-up of normal court situations is totally inappropriate for Maori people and coming to compromise and agreement, the chief judge says.

“When you look at the Waitangi Tribunal and the task it has to measure policies and legislation against the treaty... a willingness to understand the viewpoint of an opposing person becomes very important.

Asked if the tribunal should have retrospective powers, Chief Judge Durie replies, his brown eyes darting characteristically: “That’s a very political question. I don’t want to comment further than saying it’s one on which a politicial decision has to be made. Government has to decide whether past claims should continue to be handled on a political level as they were in the past.”

In a recent discussion paper on Maori legislation the Maori Council criticises a “disparate, diverse and unpredictable treatment of Maori claims,” generally at a political level, to the detriment of Maoris and the country.

Disproportionate

“The resolution of disputes involving land,” the chief judge of the land court says, “have gone to the political level. The result is that there have been some disproportionate awards; some claims have been rejected entirely where other claims which may not have been quite as good have been accepted.

“I think that is a bad thing. The worst aspect of it is that since 1960, largely as a result of Maori people moving from rural to predominantly urban localities, Maori land claims have been associated with protest.

“I think it unfortunate if Maoris were to come to the view that it is only as a result of protest that you might hope to achieve some redress...”

Most of the large number of “Maori issues” are being resolved by protest, Chief Judge Durie says.

“It's been very productive, frankly,” he chuckles, “but I think it would be helpful to Maori people to have a tribunal that they can go to, to help provide information and help reconcile people in areas of dispute.

Reconciliation

“The Treaty of Waitangi was primarily intended as a means of reconciling Maori and Euorpean in this country (and) that’s what the tribunal should be still concerned to do.”

Under its act the tribunal is only asked to measure things against the principles of the treaty a moral rather than a legal obligation, because the treaty is not recognised by New Zealand law. If the tribunal’s recommendations were not listened to, “and I’m not saying that’s so,” then the body would die, the chief judge says. Rather than that, though, he wants the tribunal given the facilities to do its work better: “Where I think the Waitangi Tribunal is deficient is that to perform the sort of function we need to perform we need a research unit, people who can investigate the background of a case, make the results of the investigations known, lay that on the floor of the tribunal... and then investigate it. “I think a number of Maori people make allegations about things after experiencing considerable frustrations in trying to find out what the facts are.” Needs research The Maori Land Court also needs a research unit with the ability to “move out among Maori people and make proposals for land and community development projects,” Chief Judge Durie says, pointing out that a 1980 royal commission chaired by Sir Thaddeus McCarthy declared the court inadequately staffed. One senses the chief judge would always rather talk about the land court than the tribunal. He says that from when he was very young he has always been interested in land. The tribunal looks at complaints, but “we in the Maori Land Court are looking at the very positive ways in which you can create new

developments in Maori land.” Since it was established in 1865 the role of the court has changed “enormously”, Chief Judge Durie says. It has gone from being concerned with Maori customary ownership according to principles of British law, to setting up trusts and incorporations as it is doing now “so that the owners of Maori land can develop them in accordance with management patterns of their own choosing.” Pretty exciting “The court is primarily, I hope, a facilitator of Maori aspirations,” which, Chief Judge Durie says, is “pretty exciting”. He believes that as long as there is multiple ownership of land there will still be a mechanism needed for locating consensus of views and giving legal effect to group decisions. The chief judge says the main issue in Maori land is that Maori land laws have tended to be written on a presumption that Maori ownership and use of land will be, or can be, the same as that of the European. “The challenge is to come up with laws that can accommodate Maori concepts or ownership and development. Maori people have proved they can develop their own lands in their own ways.” The court still needs to become more informal, says Chief Judge Durie: “I find it strange that the Maori people who are customarily used to the settlement of disputes by discussion should have a court that doesn’t have the sorts of facilities the family court has.” Karen Brown