Gary Judd KC: Real reason Waitangi Tribunal could not summons Chhour

And why did the Crown not challenge the Tribunal's jurisdiction?

Retired District Court Judge, David Harvey, has posted on his A Halflings View Substack an excellent summary of Justice Isacs’ judgment declining to uphold the witness summons issued by the Waitangi Tribunal to compel Minister for Children, Karen Chhour, to appear before it to be questioned. See The Summoning The Witness Summons That Did Not Work.

In short, the High Court decided that the doctrine of comity, requiring the branches of government to treat each other with respect, meant that the Tribunal could not summons the Minister unless her evidence was clearly necessary. The Court held it wasn’t. An appeal to the Court of Appeal has been heard and its decision is awaited.

What troubles me about a decision based on comity is that it treats the Waitangi Tribunal as an element of the judicial system, raising its status to something it is not.

The Tribunal is not an element of the judicial system. Except in a very narrow area, it does not make decisions. Its functions, described in s5(1) of the Treaty of Waitangi Act 1975 1, are to make recommendations to the Executive Branch of government although a settlement flowing from the recommendations may result in legislation, an action of the Legislative Branch.

A body which is not decision-making lacks a fundamental judicial characteristic.

There are other matters. Judges must take an oath before taking office, an oath requiring them to "well and truly serve ... His Majesty, His heirs and successors, according to law, in the office of [specify]; and I will do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will."

Although the Tribunal's chairperson must be a Judge (usually the Māori Land Court Chief Judge), the chairperson does not preside in a judicial capacity, and the person presiding at a sitting of the Tribunal does not even need to be a judge. Members of the Tribunal do not take an oath of office. They do not promise to serve His Majesty (the Crown). They do not promise to serve "according to law". They do not promise to do right to all manner of people after the laws and usages of New Zealand.

As it is not a decision-maker and for these other reasons, the Tribunal cannot be part of the judicial branch of government, so the comity doctrine is inapplicable.

If the Tribunal does not sit within the judicial branch, where does it sit?

Section 6 establishes that the recommendations the Tribunal makes are to the Crown 2. It does so by sending its findings to the Minister of Māori Affairs “and such other Ministers of the Crown as in the opinion of the Tribunal have an interest in the claim.”3 In this case obviously that would include the Minister for Children.

The Tribunal’s position as a standing commission of inquiry, and its function to make recommendations to the Crown and report to Ministers mean it is best be considered as a specialist part of the Executive Branch, established to inquire into matters within its functions, to assist the Executive Branch with respect to decisions of Cabinet as the decision-making organ of the Executive Branch.

In this case, the Tribunal has summoned to give evidence one of those whom the Tribunal exists to assist — the responsible Cabinet Minister.

It is taking an adversarial position in conflict with its statutory position of adviser to her. That is inconsistent with the Tribunal’s function with the consequence that it must be outside the powers conferred by the legislation. That’s the reason why the witness summons is invalid. It has nothing to do with comity.

On the face of it, the government has not been well-served by its advisers. Instead of putting the Tribunal in its rightful place, its status has been elevated by inappropriate reliance on the comity principle. Nor was the Tribunal’s jurisdiction challenged as in my view it should have been — see The Waitangi Tribunal is not "a roving Commission".

1  5Functions of Tribunal

(1) The functions of the Tribunal shall be—
(a)

to inquire into and make recommendations upon, in accordance with this Act, any claim submitted to the Tribunal under section 6:
(aa)

to make recommendations, in accordance with section 8D, that land or interests in land be no longer subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 569 of the Education and Training Act 2020:
(ab)

to make any recommendation or determination that the Tribunal is required or empowered to make under Schedule 1 of the Crown Forest Assets Act 1989:
(ac)

to make recommendations in accordance with section 8HE that land, or any part of any land, that is subject to a Crown forestry licence under the Crown Forest Assets Act 1989, be no longer liable to be returned to Maori ownership under section 36 of that Act:
(ad)

to make recommendations in accordance with section 8D (as applied by section 8HJ) that land or any interest in land that, immediately before being vested in a Crown transferee company pursuant to section 6 of the New Zealand Railways Corporation Restructuring Act 1990, was land owned by the Crown or an interest owned by the Crown in land, be no longer subject to resumption under section 39 of that Act:
(b)

to examine and report on, in accordance with section 8, any proposed legislation referred to the Tribunal under that section.

2  (3) If the Tribunal finds that any claim submitted to it under this section is well-founded it may, if it thinks fit having regard to all the circumstances of the case, recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future.

3  Section 6(5).

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.