The Waitangi Tribunal is not “a roving Commission”…

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

 

NOTE – this article was published before the High Court ruled that Karen Chhour does not have to appear before the Waitangi Tribunal

• Gary Judd writes – 

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.

 

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This article by Gary Judd was first published on Gary Judd KC Substack.