Historian and former Waitangi Tribunal member Robyn Anderson grills one of the Crown lawyers during the Northland inquiry in 2017. Photo / Peter de Graaf
Historian and former Waitangi Tribunal member Robyn Anderson grills one of the Crown lawyers during the Northland inquiry in 2017. Photo / Peter de Graaf
Opinion by Audrey Young
Audrey Young, Senior Political Correspondent at the New Zealand Herald based at Parliament, specialises in writing about politics and power.
The Waitangi Tribunal review, approved by the cabinet, must report by September, but lacks detailed terms.
The review group, led by Bruce Gray KC, includes two Pākehā and two Māori.
Concerns include the Tribunal’s kaupapa inquiries and its perceived political nature.
Despite the howls of protest, the unusual part of the review into the Waitangi Tribunal is not that it is happening but that, on the face of it, it looks rather puny.
From the scant detail that was released at 2pm on Friday, it is hard to see how itcould be a comprehensive review when it has to report back to ministers by September.
The terms of reference are yet to be signed off by Māori Development Minister Tama Potaka.
Reviewing the tribunal is hardly the “disgrace” Labour’s Willie Jackson claims it is, but at least Labour has no issue with the reviewers themselves.
The Public Service Association went beyond its brief today in calling for the review to be abandoned before it has started. The union says it is an attempt to undermine rangatiratanga and has criticised the reviewers as not being representative of Māori.
Not many publicly funded organisations, not even the courts, have gone as long as 50 years without a review. Most PSA members have been subject to a review or reviews of their organisations and many are likely to believe it is time to review the tribunal. To suggest that any organisation is above review is not remotely realistic in 2025.
The Waitangi Tribunal review group comprises two Pākehā and two Māori.
The membership of the review group suggests that if New Zealand First was looking for a hatchet job on the tribunal, it did not get its way.
It is being led by a respected Auckland KC, Bruce Gray, but one who claims no expertise in Treaty of Waitangi matters. That was clearly the attraction of the Government in appointing him. He brings no baggage to the table.
The other three reviewers are more familiar with the work of the Waitangi Tribunal and its role in advising the Crown on Treaty of Waitangi matters.
Respected iwi leader Dion Tuuta began his working life as a historian at the tribunal, has had experience of settling a claim, Ngāti Mutunga, and has had leading roles in Māori business giant Parininihi Ki Waitotara and Te Ohu Kai Moana, the Māori Fisheries Commission.
The lower-profile members of the review group are lawyer David Cochrane, who is a former member of the tribunal, and Kararaina Calcott-Cribb, a senior public servant who has been deputy chief executive at the Ministry of Housing and Urban Development, responsible for Māori housing.
In the brief time they have to conduct their review, among those they should consult will be Māori who have engaged with the tribunal over the years, as well as Treaty experts, lawyers, former members and politicians.
NZ First minister Shane Jones, will receive advice from the review group along with Tama Potaka. Photo / Mark Mitchell
It would be helpful to know why Governments over the years seem to have become more and more dismissive of tribunal reports, or to know which reports have been most helpful and why.
It would also be helpful to know from hapū and iwi which inquiries and reports by the tribunal were most helpful to them and why.
There are many other areas of inquiry the review group could cover.
The tribunal is not actually part of the judiciary. It is half in and half out. It is a creature of statute. It has no inherent jurisdiction. The Māori Land Court chief judge chairs the tribunal, and other Māori Land Court judges are able to chair tribunal panels. Why? And should it continue? It may have been helpful when the tribunal was primarily looking at historic claims, but is it still necessary to have Land Court judges when claims are of a more contemporary nature?
Should the tribunal return to a primary focus on contemporary claims, as it had in its first 10 years? Or could there be a greater role for the tribunal in monitoring commitments made by the Crown in Treaty settlements – the Auditor-General has just issued a report on the failings of the Crown in that regard.
The review could look at the gate-keeping of claims. The legislation under which the tribunal operates gives it no discretion to decline claims.
It could look at the administration, the funding of the tribunal itself and its size.
But some members appointed to the tribunal can wait for years before they are appointed to an inquiry panel. And some members of the tribunal continue to sit for years after their terms have expired, if an inquiry panel to which they were appointed goes on for years.
Should inquiries go on for years and years? And should the nature of inquiries be narrowed? Some inquiries seem to last forever, yet when the tribunal accords itself urgency, it can act very quickly.
The tribunal has finished hearing most historical claims and has turned its attention to contentious subjects in so-called kaupapa inquiries such as health policies, the treatment of Māori veterans and law proposals last year such as the Treaty Principles Bill [since voted down] or the repeal of section 7AA of the Oranga Tamariki Act [since passed].
Some see the tribunal as wholly negative, overtly political and espousing views that, while not explicitly partisan, align closely with views of Te Pāti Māori, Labour and the Greens.
Others argue that that doesn’t matter when most of its powers are limited to recommendations and that the value of the tribunal is to act as a pressure valve in some very heated political debates.
Suspicion about the review comes after a tsunami of Māori policies by this Government. But a review of the tribunal has been previously advocated by former Treaty Negotiations Minister Chris Finlayson KC and by former Chief Justice Dame Sian Elias.
And both have argued that the courts, with the power of enforcement, should be the place to hear Treaty claims.
Speaking to the tribunal’s publication Manutukutuku in 2016, Elias said: “Maybe it can return a bit more to a smaller body, and maybe a bit less lawyer-led, which I think it had to be when it was the necessary background to the settlement process and the historical claims had to be processed.”
“But in a way, I would like to see it shift back a little bit more. It is probably the case that there is always going to be the need for some creative thinking to help Governments address their obligations under the Treaty. So I think there is a role for the tribunal.
“But I would hope that some of the matters that have had to go to the tribunal will now be sufficiently recognised as claims of right that they can be addressed by the courts.”
Finlayson, in his book “Te Kupu Taurangi”, also argued that the courts should take the leading role in hearing claims about contemporary breaches of the Treaty.
Is the Waitangi Tribunal fit for purpose in 2025, only 15 years away from the 200th anniversary of the signing of the Treaty?
Probably not, but the limited nature of the review that is about to begin is not likely to address that question adequately.
