Mai Chen

Public and employment law specialist Mai Chen on current events

Mai Chen: PM may have breached the Treaty

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The Waitangi Tribunal was established as a commission of inquiry under the Commissions of Inquiry Act 1908. Photo / Mark Mitchell
The Waitangi Tribunal was established as a commission of inquiry under the Commissions of Inquiry Act 1908. Photo / Mark Mitchell

The nature and timing of the Prime Minister's statements on the Government's preparedness to seriously consider any recommendations the Waitangi Tribunal on Maori water rights before the share sell-down of the state energy companies gives the impression the Government had predetermined the issues.

This begs the question for claimants: why have such a costly middle step, which is recommendatory only, when court action would bind the Crown unless Parliament reverses the effect of its decision?

But it also raises the question for the public of whether tribunal recommendations should be made binding on the Government.

The tribunal has asked the Crown to respond by Monday to submissions by the water claimants that, among other things, the PM's statements show bad faith on the part of the Crown, which is itself a breach of the Treaty of Waitangi. Respect and good faith requires in substance and in appearance that the Government will consider any tribunal recommendations with an open mind.

Although the Tribunal's recommendations are not binding, they should still be given careful consideration because of its Treaty of Waitangi function.

The tribunal was devised by the Hon Matiu Rata and established by the Treaty of Waitangi Act 1975 under the third Labour Government. The act was implemented under the Muldoon National Government. The tribunal is also a commission of inquiry, and is thus in broad terms part of the fabric of New Zealand's judicial institutions.

The constitutional convention of comity between the three branches of government - executive (the Government), legislative and judicial - means that each branch should respect the others in the exercise of their constitutional functions. If the tribunal's findings and recommendations are not going to be seriously considered, then should the Government abolish it?

That would be a bad idea for the same reason that the proposal to make all tribunal decisions binding on the Government is a bad idea. Such a proposal generally fails to understand the role and value of the Waitangi Tribunal.

The tribunal fulfils an important function by providing a forum to air Treaty issues between Maori and the Crown. Since the 1985 extension of its jurisdiction to hear historic claims relating to Crown Treaty breaches from 1840, it has made many recommendations to the Government for resolution for these claims. Many of these recommendations have informed settlements of historic claims entered into between Maori and the Government.

This week the tribunal has heard about the negative impacts on Maori claims to water and geothermal resources if Maori interests are not determined prior to the share sell-down.

These contemporary issues, along with earlier issues regarding fisheries and forests, are primarily political. They concern the adjustment of interests and rights, and fundamentally the relationship or partnership, between Maori and the Crown.

Many of these are not strictly legal rights. For that reason, tribunal claims allow symbolic vindication of Treaty breaches without having to prove formal legal causes of action as required in the courts. The tribunal can also advise the Crown on how a good Treaty partner should behave.

Because of the overtly "political" character of the Treaty relationship, it is appropriate that the Waitangi Tribunal was established as a commission of inquiry under the Commissions of Inquiry Act 1908.

The Treaty of Waitangi Act 1975 mandates the tribunal to apply the Treaty's two texts (in Maori and English) and its principles to Maori claims of Crown breach and recommend to the Government ways and means of resolving any Crown breaches.

The Waitangi Tribunal is similar to other public law tools expressly created to have a recommendatory function, such as the Office of the Auditor-General, the Ombudsmen, the Parliamentary Commissioner for the Environment, and other commissions of inquiry.

The alternative to the tribunal is of course the general courts. The Maori Council is very familiar with this approach from the landmark "Lands" and "Forests" cases of the late 1980s, which led to the famous pronouncements of the Court of Appeal on the Treaty's principles.

However the council has chosen to go the tribunal route - for the moment. The reasons for this would appear to be, as the tribunal records Sir Edward Durie as saying in its original decision granting urgency to the water claims, that the tribunal is the appropriate body to consider such claims in light of its unique Treaty jurisdiction and the bicultural composition and expertise of its membership.

The one certainty is that there will be more contemporary claims like the water and geothermal resources claim, and the tribunal will be important in helping the Treaty partners find constructive solutions, as it has done for 42 years. The courts alone will not be enough to air Maori grievances and prevent "race wars".

Mai Chen is a partner in the firm Chen Palmer. The firm advises clients on Waitangi Tribunal claims.

- NZ Herald

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