Dunne's Weekly: Unseemly Rush Shows Need To Review Role Of Waitangi Tribunal

The rush to push legislation through Parliament under Urgency to abolish the Māori Health Authority, Te Aka Whai Ora, has been unseemly. No matter that the Authority’s abolition was an election commitment of all three government coalition partners, and was thus inevitable, the process by which it has been done was messy.

The actual abolition of the Authority will not occur until the middle of the year, but the government moved now to prevent a hearing by the Waitangi Tribunal – due to get underway this week – on whether the move was a breach of the Treaty.

That action of itself raises questions about the role of the Waitangi Tribunal and where it fits in our constitutional framework. Its origins go back to 1975 when the then Labour Government passed legislation to give legal recognition to the Treaty of Waitangi for the first time. Part of that legislation established the Waitangi Tribunal with the authority “to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty”.

The Tribunal was not established as a Court, but as a permanent Commission of Inquiry on the actions or omissions of the Crown regarding the Treaty. As with all Commissions of Inquiry, its findings were not intended to be legally binding. Although the Tribunal has the power to consider proposed legislation which has been referred to it by Parliament, it can also look at any “policy or practice proposed to be adopted by or on behalf of the Crown” referred to it by “any group” of Māori who “claim” they might be prejudicially affected.

Those provisions are at the core of the government’s actions this week. Moving to abolish Te Aka Whai Ora now removes any question of the legislation being considered by the Tribunal because it cannot look at legislation that is currently before Parliament. However, the Tribunal can still consider whether Te Aka Whai Ora’s abolition will prejudicially affect “any group” of Māori, but the government obviously considers that a potential adverse finding from the Tribunal at some future time will be less significant, once Te Aka Whai Ora has been abolished.

This awkward situation raises questions about the current role and purpose of the Waitangi Tribunal. Although it is obviously not the “Māori Court” as Labour MP Willie Jackson typically ignorantly and divisively asserts, it is unclear what the Tribunal’s proper, precise function is. In that regard, it is questionable whether the Tribunal’s traditional role as a permanent Commission of Inquiry with the power to make only non-legally binding recommendations on matters relating to the Treaty is still appropriate, or whether greater clarification is needed.

It seems nonsensical that the Tribunal’s ability to hold a hearing on whether a proposed government action breaches the Treaty can be shut down by the government introducing legislation to Parliament. On the other hand, there is no tradition, nor desire, in New Zealand to give the Courts or tribunals the power to strike down legislation the way the United States Supreme Court can.

Any move – and none has been seriously suggested so far – to invest such a power in the Waitangi Tribunal regarding the Treaty would be a huge constitutional step. It would immediately raise the question of the same approach being applied by the Supreme Court of New Zealand regarding the general law. Any move in this direction, be it on the Treaty or any other matter, would be untenable. It would override the principle of the supremacy of Parliament on which our democratic system of government is based and open up the much wider question of broader constitutional reform, something successive governments have run a mile from.

Nevertheless, the position of the Tribunal remains ambiguous, and in need of clarification. This will be especially so if ACT’s proposed Treaty Principles legislation ever proceeds beyond the select committee stage in Parliament. At present, Māori could be forgiven for seeing the Tribunal as ineffectual in that its recommendations lack any legal standing. At the same time, governments often view the Tribunal as an awkward hindrance, especially when it makes findings adverse to their policies. That is unsatisfactory from just about every point of view.

The concept of a specialist Tribunal as proposed in the 1975 legislation remains a sound one, especially as debate around the principles of the Treaty intensifies. But that Tribunal needs to be structured in a way that enables it to have some meaningful impact when issues of significance arise. Therefore, a considered and structured review of the Waitangi Tribunal, nearly fifty years on, to better define its functions and purpose is in order. This is a constructive response, far preferable to the potentially divisive and protracted debate about legislatively defining the principles of the Treaty of Waitangi, from which there will be no winners.

Otherwise, more messy situations like the rushed legislation to abolish Te Aka Whai Ora will arise. These dishonour both the government and Māori alike. In an environment where half of all New Zealanders, according to a recent TVNZ Kantar poll, say they do not understand the principles of the Treaty, the founding document of our country, that would be the least desirable of all outcomes.

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