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Legal aid bill for Treaty claims hits $79m in six years

Published: 5:47AM Wednesday January 09, 2013 Source: Fairfax

  •  (Source: Thinkstock)
    Source: Thinkstock

Treaty of Waitangi claims have become a multimillion-dollar industry for lawyers, generating $79 million in legal aid since 2006.

Justice Ministry figures show millions of dollars of public money are paid out every year to help Maori groups seek compensation for Treaty of Waitangi breaches.

However, one Treaty lawyer argues the odds are still stacked against claimants, with the Government spending millions on settlement lawyers while claimants are forced to find lawyers who will work for "bargain basement prices".

As well as legal costs, Treaty lawyers can claim on travel, meals, accommodation, and the expense of attending a hui to discuss a claim.

Unlike civil or criminal cases, Treaty claimants can obtain legal aid regardless of their financial circumstances.

Labour MP Shane Jones, who is linked to the northern iwi Te Aupouri and Ngai Takoto, said "ridiculous" amounts of money were being spent on lawyers appearing before the tribunal.

"It is a bit dispiriting when you go to a Waitangi Tribunal hearing these days and there are legions of lawyers."

But he said delays caused by infighting and bureaucracy - rather than excessive fees - were to blame.

"Legal costs are a legitimate part of the process but that process needs to be going somewhere."

Between 2006 and 2010, legal aid payments to Treaty claimants more than doubled, peaking at $16.7m in the year to June 2010.

By the year to June 2012 it had dropped to $11.5m, and in the last six months $4.6m had been paid out.

The biggest payouts are for attending hearings and legal preparation.

More than $800,000 has also been claimed in travel costs during the past 2 years.

While Treaty claims represent a fraction of the total number of legal aid cases, they are often among the most expensive.

Dame Margaret Bazley's damning review of the legal aid process in 2009 found that of the 75 most expensive cases of 2008-09, 41 per cent were for Treaty claims.

In the year to June 2012, about 8 per cent of New Zealand's $148m legal aid bill went towards paying Treaty claimants' legal bills.

But while the legal bill has spiked, the number of settlements has also risen. Since 2006, 19 Treaty claims have been settled, with the Government paying out more than $480m.

Another 16 claimants have signed settlement deeds and are now awaiting legalisation to ratify the agreements. Combined, they will be worth more than $250m.

'These are just big cases'

Auckland barrister Grant Powell, who has been representing Treaty claimants for more than 20 years, said despite the big figures, legal aid was not a money generator for Treaty lawyers.

"In one regional inquiry I spent 26 weeks in hearings. These are just big cases."

Tight restrictions, pay delays and low hourly rate - less than half a normal market rate - meant the number of lawyers willing to represent Treaty claimants was actually declining, he said.

The Ministry of Justice figures cover only the Waitangi Tribunal stage and exclude the often-considerable legal costs of negotiating a settlement with the Government.

Mr Powell said legal aid for settlement negotiations was cut in 2011 as part of wider legal aid shake-up and had left a "gaping hole" in support.

"The Government is quite willing to spend significant amounts on an hourly basis for lawyers to do its [Treaty settlement] work but not for the claimants."

The Ministry of Justice has attributed the spike in the legal aid in the past five years to a surge in claims caused by the Government-imposed 2008 deadline for accepting claims.

The Waitangi Tribunal is currently handling or preparing 780 separate claims, which are resolved through regional hearings.

In a statement, Justice Minister Judith Collins said she was comfortable with the amount of money being spent on legal aid for Treaty claims.

HOW THE WAITANGI TRIBUNAL WORKS

The tribunal is an ongoing commission of inquiry into Maori grievances under the Treaty of Waitangi.

When an iwi, hapu or other Maori group submits a claim, it is grouped into a geographic "inquiry district", with all claims within that district examined together.

After the inquiry, the tribunal makes recommendations to the Government, which can choose to either accept or reject those recommendations.

The recommendations are often the starting point for settlement talks between the Government's Office of Treaty Settlement and claimants, although both parties can choose to bypass the tribunal completely.

Maori groups can receive legal aid for Waitangi Tribunal claims but not for direct talks with the Government.

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