Analysis: New Zealanders should be following any changes to the Waitangi Tribunal’s remit very closely, writes Te Aniwa Hurihanganui.
I can’t remember the last time the Waitangi Tribunal caused this much of a stir.
The tribunal’s unusual decision to summons a government minister to give evidence at an inquiry into proposed changes to the Oranga Tamariki Act has not only been lambasted by some of our most senior ministers, but the move is now being challenged by Crown lawyers in the High Court.
While the tribunal can legally order witnesses to appear at an inquiry, it has never done so to a minister before — and NZ First’s Shane Jones isn’t happy about it. He reckons the tribunal has overstepped its authority.
ACT leader David Seymour went further and said perhaps “[the tribunal] should be wound up for their own good”.
A judicial review will ultimately decide how this summons plays out, but threats of “winding up” the tribunal will likely linger. The Government has made no secret of its plan to review the tribunal’s future role, a coalition promise it frequently reiterates.
Any change to the tribunal’s remit should be something New Zealanders follow very closely.
It’s the only commission of inquiry specifically legislated with holding the Crown accountable to the principles of the Treaty of Waitangi. The only one. To lose it could have important consequences.
What does the Waitangi Tribunal actually do?
Many people know that the tribunal’s core role is to investigate potential breaches of the Treaty of Waitangi by the Crown.
Anyone who is of Māori descent can file a claim lodging allegations of a breach. But while the tribunal can inquire into claims, examine evidence and write reports on its findings, its power is limited.
The tribunal can make recommendations regarding a claim, but it cannot stop a government from following through with legislation, even if it was found to be riddled with Treaty breaches.
It would be easy then to dismiss the tribunal as “toothless” when its recommendations, for the most part, are not binding.
However, its findings have led to significant pieces of legislation and societal change.
The establishment of the Māori Health Authority, for example, followed recommendations by the Health Inquiry Tribunal in 2019, after the tribunal found the health system was failing Māori at almost every level it measured.
But the tribunal’s roots can also be found in other bodies that seek to give Māori some semblance of autonomy over their lives and affairs, such as Te Ohu Kaimoana, a trust that represents and advocates for Māori commercial and customary fishing rights.
The tribunal’s findings led to the allocation of Māori radio frequencies and to te reo Māori becoming an official language in Aotearoa. They have also informed many Treaty settlements, leading to redress for hapū and iwi.
The point is that the tribunal’s findings have long carried weight and, importantly, have been helpful and informative to governments, particularly when the government wishes to preserve relationships with relevant Māori groups.
Why do claims matter — even if the govt won’t listen?
Some people might be wondering why the tribunal would bother investigating claims about government policies that it knows will likely be enacted, even if it finds a Treaty breach.
The same question could be asked of claimants. Why fork out thousands of dollars for legal fees and spend weeks preparing pages of evidence if it likely won’t change the government’s mind?
Under the Treaty of Waitangi Act 1975, the tribunal must look into claims brought before it by Māori alleging breaches of the Treaty, regardless of outcome. So, even if its recommendations fall on deaf ears, those recommendations can still be important for claimants who wish to bring them before future governments.
Many Māori say they are prepared to play the long game in order to achieve Treaty justice. They understand that the government of the day has the power to repeal, overturn and legislate as they see fit — but subsequent governments may choose a different path.
At the very least, the findings and recommendations of the tribunal become a record of accounts and evidence, and that matters. They have the power to shape how the public thinks about an issue, and the people they vote for. And they legitimise grievances held by Māori when the Crown fails to uphold its Treaty obligations.
If the tribunal goes, who will make sure those obligations continue to be upheld?