17 April 2024 

Rt Hon Christopher Luxon 

1 Molesworth Street 

Pipitea 

Wellington 6011 

By email: C.Luxton@ministers.govt.nz; J.Collins@ministers.govt.nz 

Tēnā koe e te Pirimia, 

WAITANGI TRIBUNAL  

1. Te Hunga Roia Māori o Aotearoa | the New Zealand Māori Law Society are concerned about recent comments made by Minister Shane Jones in respect of the Waitangi  Tribunal. We consider that his comments breach the principle of the separation of  powers and the Cabinet Manual.  

2. On the 11 April 2024 in the context of the “Oranga Tamariki Urgent Inquiry (Section  7AA)” the Waitangi Tribunal issued a summons requiring Minister Chhour to give  evidence in response to particular questions. The Tribunal indicated that they will not  require the Minister to attend or respond pending the outcome of any High Court  proceedings. The Crown has since filed judicial review proceedings in the High Court.  

3. As reported in a Herald Article dated 17 April 2024, Minister Jones has since made  comment on the Waitangi Tribunal’s decision:  

“The Waitangi Tribunal has no business running its operations as some sort of star chamber  delivering pre-emptory summons for ministers to rock up and be cross-examined or grilled in some  kind of wannabe American star chamber pulp fiction gig.” 

4. The article goes on to say that “Jones says he’s looking forward to the review of the  Tribunal which is part of the coalition agreement.”. The article also reports Minister  Jones as saying:  

“I want to be absolutely clear and honest. I don’t understand why the Waitangi Tribunal believes it  has the power and authority to gainsay a newly-elected Government with an electoral mandate to  change things,”  

“What gives the Waitangi Tribunal the belief that their power is greater than the voting democratic  will of Kiwis?” 

5. These comments are inappropriate and unconstitutional. The Cabinet Manual  provides that Ministers must “exercise judgement before commenting on matters  before the courts or judicial decisions” (clause 4.12) and that “Ministers should not  express any views that are likely to be publicised if they could be regarded as reflecting  adversely on the impartiality, personal views, or ability of any judge” (clause 4.13). The  Cabinet Manual at clause 4.16 also provides that Ministers may comment on the effectiveness of the law “but not where the performance of the courts is brought into  question”.  

6. Minister Jones’ comments directly bring into question the performance of the Waitangi  Tribunal, an independent Commission of Inquiry established by legislation that serves  a function akin to a Court and over which a Judge presides. The comments, which are  paired with a threat of executive review of the function and purpose of the Tribunal  could also have a chilling effect and reflect adversely on Waitangi Tribunal decisions  going forward. Te Hunga Roia Māori o Aotearoa considers that Minister Jones’s  comments breach of the separation of powers and are likely to breach the Cabinet  Manuel.  

7. This is not the first time Minister Jones has made public criticism of the Tribunal. The  difference here as compared to election campaigning is that there is a live claim before  the Tribunal and the Tribunal has a statutory obligation to inquire into it. When making  electioneering comments, Minister Jones was not then a part of the Executive. Minister Jones’ comments have the effect of undermining both the Tribunal and its processes  regarding a current case. That is not the role of the Executive. The remedy available  for the affected Minister is through judicial review, which has been sought. It is for the  High Court, in accordance with the rule of law, to determine whether the Waitangi  Tribunal has overreached by issuing a summons. Ministerial comment relating to a judicial decision that is now currently before the High Court is an unconstitutional use  of power and platform that undermines the integrity of our system of law.  

8. Te Hunga Roia Māori o Aotearoa are seeking: 

a. a review by the Prime Minister and the Cabinet Office in respect of whether  there has been a Cabinet Manual breach; 

b. that the Attorney-General, who has particular responsibility for maintaining the  rule of law, to exercise her constitutional functions to uphold the integrity of the  judicial branch of government within Cabinet; and 

c. an attendance with the Prime Minister and Attorney-General alongside the  Cabinet office to discuss this matter further.  

Nā māua,  

Natalie Coates | Tai Ahu 

Tumuaki o Te Hunga Rōia Māori o Aotearoa

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