The rush to push legislation through Parliament under Urgency to abolish the Māori Health Authority, Te Aka Whai Ora,
has been unseemly. No matter that the Authority’s abolition was an election commitment of all three government coalition
partners, and was thus inevitable, the process by which it has been done was messy.
The actual abolition of the Authority will not occur until the middle of the year, but the government moved now to
prevent a hearing by the Waitangi Tribunal – due to get underway this week – on whether the move was a breach of the
Treaty.
That action of itself raises questions about the role of the Waitangi Tribunal and where it fits in our constitutional
framework. Its origins go back to 1975 when the then Labour Government passed legislation to give legal recognition to
the Treaty of Waitangi for the first time. Part of that legislation established the Waitangi Tribunal with the authority
“to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain
matters are inconsistent with the principles of the Treaty”.
The Tribunal was not established as a Court, but as a permanent Commission of Inquiry on the actions or omissions of the
Crown regarding the Treaty. As with all Commissions of Inquiry, its findings were not intended to be legally binding.
Although the Tribunal has the power to consider proposed legislation which has been referred to it by Parliament, it can
also look at any “policy or practice proposed to be adopted by or on behalf of the Crown” referred to it by “any group”
of Māori who “claim” they might be prejudicially affected.
Those provisions are at the core of the government’s actions this week. Moving to abolish Te Aka Whai Ora now removes
any question of the legislation being considered by the Tribunal because it cannot look at legislation that is currently
before Parliament. However, the Tribunal can still consider whether Te Aka Whai Ora’s abolition will prejudicially
affect “any group” of Māori, but the government obviously considers that a potential adverse finding from the Tribunal
at some future time will be less significant, once Te Aka Whai Ora has been abolished.
This awkward situation raises questions about the current role and purpose of the Waitangi Tribunal. Although it is
obviously not the “Māori Court” as Labour MP Willie Jackson typically ignorantly and divisively asserts, it is unclear
what the Tribunal’s proper, precise function is. In that regard, it is questionable whether the Tribunal’s traditional
role as a permanent Commission of Inquiry with the power to make only non-legally binding recommendations on matters
relating to the Treaty is still appropriate, or whether greater clarification is needed.
It seems nonsensical that the Tribunal’s ability to hold a hearing on whether a proposed government action breaches the
Treaty can be shut down by the government introducing legislation to Parliament. On the other hand, there is no
tradition, nor desire, in New Zealand to give the Courts or tribunals the power to strike down legislation the way the
United States Supreme Court can.
Any move – and none has been seriously suggested so far – to invest such a power in the Waitangi Tribunal regarding the
Treaty would be a huge constitutional step. It would immediately raise the question of the same approach being applied
by the Supreme Court of New Zealand regarding the general law. Any move in this direction, be it on the Treaty or any
other matter, would be untenable. It would override the principle of the supremacy of Parliament on which our democratic
system of government is based and open up the much wider question of broader constitutional reform, something successive
governments have run a mile from.
Nevertheless, the position of the Tribunal remains ambiguous, and in need of clarification. This will be especially so
if ACT’s proposed Treaty Principles legislation ever proceeds beyond the select committee stage in Parliament. At
present, Māori could be forgiven for seeing the Tribunal as ineffectual in that its recommendations lack any legal
standing. At the same time, governments often view the Tribunal as an awkward hindrance, especially when it makes
findings adverse to their policies. That is unsatisfactory from just about every point of view.
The concept of a specialist Tribunal as proposed in the 1975 legislation remains a sound one, especially as debate
around the principles of the Treaty intensifies. But that Tribunal needs to be structured in a way that enables it to
have some meaningful impact when issues of significance arise. Therefore, a considered and structured review of the
Waitangi Tribunal, nearly fifty years on, to better define its functions and purpose is in order. This is a constructive
response, far preferable to the potentially divisive and protracted debate about legislatively defining the principles
of the Treaty of Waitangi, from which there will be no winners.
Otherwise, more messy situations like the rushed legislation to abolish Te Aka Whai Ora will arise. These dishonour both
the government and Māori alike. In an environment where half of all New Zealanders, according to a recent TVNZ Kantar
poll, say they do not understand the principles of the Treaty, the founding document of our country, that would be the
least desirable of all outcomes.