Friday, April 26, 2024

Gary Judd KC: The Waitangi Tribunal is not "a roving Commission"

it has a restricted jurisdiction which must not be abused: it is not an inquisition

The High Court is today [22/4/24] hearing an application by the Crown to set aside a witness summons requiring the Minister for Children, Karen Chhour to appear before the Waitangi Tribunal to be questioned as part of an inquiry into her plans to remove s 7AA from the Oranga Tamariki Act, which sets out the duties of the chief executive of Oranga Tamariki in relation to the Treaty of Waitangi. The section says, among other things, that the chief executive must ensure: “The policies, practices and services of the department have regard to mana tamaiti (tamariki) and the whakapapa of Māori children and young persons and the whanaungatanga [kinship] responsibilities of their whānau, hapū and iwi.” This description is taken from Audrey Young’s article in the Herald.

Audrey Young notes that the Tribunal is exercising powers it has as a Commission of Inquiry. Graham Edgeler, a Wellington lawyer and commentator on matters electoral and constitutional, has likewise referenced the powers of a Commission as the source of the power the Tribunal is purporting to exercise.

It seems to me this is too simplistic. It is true that s 4(8) of the Treaty of Waitangi Act 1975 states that the provisions of Schedule 2 have effect in relation to the Tribunal and its proceedings. Schedule 2’s clause 8 does indeed provide that the Tribunal is deemed to be a Commission of Inquiry under the Commissions of Inquiry Act 1908, and it contains specific provisions empowering the chairperson or presiding officer at an inquiry to issue a witness summons.

However, this all presupposes that the Tribunal has jurisdiction to undertake the inquiry in relation to which the proposed witness is being summoned. The law is clear that a Commission of Inquiry may not go outside its terms of reference.

It comes back then, in my opinion, to the interpretation of the instrument itself. A Commission of Inquiry under the statute and a Royal Commission under the Letters Patent are alike in this respect— each of them is an inquiry, not an inquisition. By that I mean that the Commission is not a roving Commission of a general character authorizing investigation into any matter that the members of the Commission may think fit to inquire into and that the ambit of the inquiry is limited by the terms of the instrument of appointment of the Commission.

So said the New Zealand Court of Appeal, per Chief Justice Myers, in In re Royal Commission on Licensing [1945] NZLR 665, 680. In that case, the Commission had requested directions as to whether certain questions it wanted to ask were within its powers. The Court of Appeal decided that they were not, because questions of that nature were outside the terms of reference of the Commission.

The “instrument of appointment” of the Waitangi Tribunal as a Commission of Inquiry is the 1975 Act. In the context of the present issue, the Tribunal has jurisdiction to consider claims within s 6, and under s 8 to consider proposed legislation. Proposed legislation is what this case concerns. The government proposes to introduce legislation to remove s 7AA. Therefore, on the face of it this should be considered under s 8. However, s 8(2) provides that in the case of a Bill before the House of Representatives, the jurisdiction arises if the proposed legislation is referred to the Tribunal by resolution of the House. There is no Bill before the House and there is no resolution. Therefore, s 8 cannot confer jurisdiction on the Tribunal.

Undaunted, the claimants and the Tribunal assert that jurisdiction exists under s 6 of the 1975 Act. Section 6 is mainly concerned with things which have happened. As there is no more than a proposal to introduce legislation to remove s 7AA, the potentially jurisdiction conferring provisions is paragraph (c) in s 6(1):

Where any Maori claims that he or she, or any group of Maoris of which he or she is a member, is or is likely to be prejudicially affected— …

(c) by any policy or practice (whether or not still in force) adopted by or on behalf of the Crown, or by any policy or practice proposed to be adopted by or on behalf of the Crown….

The position of the Crown, the claimants and the Tribunal is shown in the Tribunal’s decision on the application for urgency. In granting urgency, the Tribunal directed:

40. The urgent inquiry will be targeted and specific and is to focus on “whether the action and policy of the Government to repeal section 7AA of the Oranga Tamariki Act 1989 is in breach of the principles of the Treaty of Waitangi.” I leave it to the panel to define the specific issues that arise in this regard.

Earlier, in paragraph 26, the Tribunal stated that it gained its jurisdiction from s 6(1)(c). In paragraph 29, it baldly states: “29. There is no doubt that the proposed repeal of section 7AA represents an important current and pending Crown action and policy.” In so stating, the Tribunal does not explain why it rejected the Crown submission recorded in paragraph 15:

The repeal is a political commitment made by political parties in the process of forming a government and is not the product of a policy process by Crown officials (Wai 3309, #3.1.14 at [13]–[14]).

In light of the Crown’s submission, and what I explain below, the Tribunal’s claim that “there is no doubt” of a current and pending Crown action and policy lacks any credibility.

The Oxford English Dictionary entry has policy as:

A principle or course of action adopted or proposed as desirable, advantageous, or expedient; esp. one formally advocated by a government, political party, etc. Also as a mass noun: method of acting on matters of principle, settled practice. (Now the usual sense.)

It has been an ACT Party policy that s 7AA needs to be repealed. That policy resulted in an agreement in the coalition agreement between ACT and National that s 7AA would be removed, and a subsequent Cabinet decision that legislation to effect removal would be introduced. It seems to me that to describe either the agreement or the decision as a policy or practice by or on behalf of the Crown, is to strain the language of the statute.

The Waitangi Tribunal does not have jurisdiction in respect of the policies adopted by political parties. Nor does it have jurisdiction in respect of agreements made between political parties forming a coalition government. These are not policies or practices of the Crown. The only candidate for a policy which might be the subject of inquiry is the Cabinet decision (because Cabinet is part of the Crown). But that is not a policy — it is a decision.

If a Māori or a group of Māori is or is likely to be prejudicially affected (as the opening words of s 6(1) require), it will not be by the decision to introduce removal legislation, but by the legislation itself should it be passed.

That is no doubt one reason why the 1975 Act indicates that where legislation is involved, the Tribunal should have a part to play only if the proposed legislation is referred to it under s 8. Erstwhile claimants before the Tribunal have the same rights as anyone else to engage in the legislative process.

Once again, the Tribunal is displaying cavalier disregard of its responsibility to stay within its remit. It is to be hoped that the High Court will say so.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.


Anonymous said...

Abolish the WT?.... not likely with Minister Goldsmith in charge.

Anonymous said...

Best solution - get rid of the tribunal and its establishing Act.

Peter said...

An excellent commentary and makes more sense than a quick scan of the judge's findings, which came to the right outcome, but appears to have missed the simple point that Gary so eruditely and clearly cites. (One can only hope the Appeal Court will cut to the chase.)

But that all aside, why the ToW (and its undefined principles) should EVER HAVE BEEN MENTIONED in the OT Act is the real question we should demand to be answered by our politicians.

And on that matter, Maori were conferred the rights and privileges of British subjects (now NZ citizens) and that involves acting not only within the law, but also those unwritten fundamental mores of everyday decency, including when you bring a child into the world you love and nurture it and provide it not only with the basic necessities of life (including things like a school lunch), but all those other things like an education (ensuring they get to school in the first place) and guide as to what is appropriate when interacting with one’s peers and society in general. Children are not typically overly concerned with their gender, cultural and religious beliefs etc. unless that’s indoctrinated into them by their caregivers/teachers – which is a moot issue and topic in and of itself.

Many Maori (and by no means all Maori, but I’m referring to that amorphous cohort that are found representing the worst of all our statistics, along with those charlatans and opportunist activists that use that cohort for their own betterment) are patently failing in their ability to act as decent citizens (and parents) and are therefore failing to honour their side of the Treaty. How ironic and ridiculous that they should demand what they do in claiming that the Crown (i.e. everyone else) should respect the Treaty and accord them special privileges (above and beyond) when they (individually themselves), fail at such a fundamental level in respecting their own, yet alone the society more generally in which they live. And, moreover, isn’t it incongruous that the vast majority that claim the ‘Maori’ identity, now have more genes from other ancestral lineages.

It’s well past time we commenced removing all apartheid type references in our legislation, and the OT Act would be a good (and now timely) start.

Anonymous said...

The 1975 Treaty of Waitangi Act and the Waitangi Tribunal were brought into existence on a lie and the use of a ‘tampered’ with Hobson official two part document, known as Maunsell’s ‘make do’ Maori Language treaty.

This ‘tampered’ with document was separated, and one page then renamed ‘The official English language Treaty of Waitangi as signed’, and then fraudulently used to introduce apartheid into New Zealand in 1975, via the Treaty of Waitangi Act/Waitangi Tribunal.

Martin Doutre has done extensive work in this area, and what follows is sourced directly from his website which can be found here: under tab PAGE TWO OF MAUNSELL'S "MAKE-DO" TREATY.

On April 11th, 1840, Maunsell stood before 1500 Maori gathered in for a business hui at Port Waikato and read the official and solitary, Maori-language treaty to the assembly. He was obliged to work from the "printed Maori-language sheet" produced on the CMS Mission press by Reverend William Colenso (mission printer) on the 17th of February 1840.

The chiefs were later invited to sign the treaty, so the most senior of them in the Port Waikato area came forward first and signed the printed-Maori sheet. However, there was only sufficient space at the bottom of the page for 5 signatures.

Whatever signatures would not fit onto the printed-Maori text document, were allowed to overflow onto the "Formal Royal Style" sheet Freeman had sent over to Maunsell (accompanied by the printed-Maori sheet) before HMS Herald set sail from the Waitemata after the March 4th meeting there.

(Freeman had taken it upon himself to also forward over to Maunsell a ruined copy of one of his "Formal Royal Style" versions in English. Earmarked for overseas despatch only, it had been ruined when Hobson had attempted a "left-handed" signature at the height of his stroke between the 1st and 4th of March 1840).

Hobson later accepted Maunsell's, two-part, "make-do" document and acknowledged the wishes of the Waikato Chiefs, whom he knew had heard and understood the official Maori Treaty wording presented to them by Maunsell.

The Formal Royal Style, English version, placed on the table that day, was used only to catch overflow signatures that would not fit on the printed-Maori sheet. Nothing more. It was merely a surplus piece of paper with plenty of room on it to receive the overflow signatures.

Later, the printed Maori sheet, with the Formal Royal style version sitting behind it, were glued together with wax to become one document and Hobson added a waxen seal to render Maunsell's "make-do", Maori language treaty "official".

So it's not hard to join the dots now is it?

Ken S said...

A question that Gary or Graham might like to answer. How difficult would it be to pass a Bill removing all references in statute to "the principles of the Treaty of Waitangi" until those principles are defined in law?