There is growing concern among lawyers working on Te Tiriti o Waitangi claims before the Waitangi Tribunal that changes to the legal aid system in 2011 have the potential to completely derail the Waitangi Tribunal process, and with it the entire Treaty Settlements process. A severe lack of resourcing for Iwi, Hapū, claimants, and lawyers alike has resulted in a system which massively favours the Government and speed and efficiency are taking precedence over justice.
In the name of posterity the Government has embarked on a series of reforms of the legal aid system designed to make the regime more efficient and cost-effective. The reforms have been touted as ensuring quality in legal representation but in reality they are nothing short of a blatant cost-cutting exercise. Yet, the savings made by the Government in this area are minimal in the context of the entire budget, amounting to a total of $138 million over four years. In the year ended 30 June 2011, total Government expenditure amounted to a shade under $100 billion. This amounts to a saving of 0.0345% each year. To put this into context, if a person spending $50,000 per annum was to cut expenditure to the same degree, he or she would save a grand total of $17.25. Even in the context of a multi-billion dollar deficit, the savings in this area are nothing more than cosmetic. The only purpose the cuts serve are political.
While the cost-cutting in Wellington has a negligible effect on the Government’s bottom line, the impact on Māori is being felt throughout the country. Māori lawyers are coming under increasing financial pressure and unless a release valve is found soon, the entire Treaty Settlement system will fall apart. The Ministry of Justice, tasked with administering the legal aid system, is under-resourced and failing to provide enough staff to adequately administer legal aid funding for Waitangi Tribunal claims. Invoices submitted to the Ministry for payment are being held up for 6 months or more, and in one extreme case a law firm has not been paid on its legal aid files since August 2011. Personally, it has been over a year since I had any security of income as we also deal with delayed payment by the Government in respect of our Waitangi Tribunal work.
This has downstream consequences for Māori hapū and whanau who are taking claims to the Waitangi Tribunal. Lawyers are no longer taking on new claimants, leaving them to navigate the very technical and time-intensive legal processes of the Waitangi Tribunal on their own. Even where claimants have legal representation, the Ministry of Justice will occasionally deny hapū or whanau legal aid, or fail to approve the requisite legal work required to fully present a claim to the Waitangi Tribunal. There is only so much pro bono work that a lawyer is prepared to do.
It is difficult to see exactly what the Government is trying to achieve here. The cuts in legal aid funding, the under-resourcing of the Waitangi Tribunal, and the increasingly one-sided take-it-or-leave-it approach to Treaty Settlements are all acting in direct opposition of their stated aim to settle all historical Treaty claims by 2014. Iwi, Hapū and Whanau need high quality legal representation to guide them through the Waitangi Tribunal and Treaty Settlement processes. Without it the Crown can harness its institutional knowledge and use this to its advantage against a group whom find the process to be foreign and, at times, daunting. If the Government has any realistic desire to complete settlements by 2014 (or even 2016) then it needs to fully fund the Waitangi Tribunal, provide adequate resources to the Ministry of Justice, and ensure that the lawyers working to assist Māori achieve justice, are firstly, paid for the work that is being done and, secondly, paid in a timely manner.
I know politicians and beehive staffers read this blog, and I speak directly to those of you reading this today. Māori will not tolerate another round of injustices. Full and Final will never mean Full and Final unless the process is fair and, as things stand, the Government is working overtime to stack the process in its favour. Changes to legal aid, and the constant delay in approving legal work and paying on invoices, are designed to drive as many lawyers out of the field as possible – further tilting the process in the Government’s favour.
Justice is as much, if not more, about the process than it is about the result. After 170 years, Māori deserve better.