17 April 2024
Rt Hon Christopher Luxon
1 Molesworth Street
Pipitea
Wellington 6011
Tēnā koe e te Pirimia,
WAITANGI TRIBUNAL
1. Te Hunga Roia Māori o Aotearoa | the New Zealand Māori Law Society are concerned about recent comments made by
Minister Shane Jones in respect of the Waitangi Tribunal. We consider that his comments breach the principle of the
separation of powers and the Cabinet Manual.
2. On the 11 April 2024 in the context of the “Oranga Tamariki Urgent Inquiry (Section 7AA)” the Waitangi Tribunal
issued a summons requiring Minister Chhour to give evidence in response to particular questions. The Tribunal indicated
that they will not require the Minister to attend or respond pending the outcome of any High Court proceedings. The
Crown has since filed judicial review proceedings in the High Court.
3. As reported in a Herald Article dated 17 April 2024, Minister Jones has since made comment on the Waitangi Tribunal’s decision:
“The Waitangi Tribunal has no business running its operations as some sort of star chamber delivering pre-emptory
summons for ministers to rock up and be cross-examined or grilled in some kind of wannabe American star chamber pulp
fiction gig.”
4. The article goes on to say that “Jones says he’s looking forward to the review of the Tribunal which is part of the
coalition agreement.”. The article also reports Minister Jones as saying:
“I want to be absolutely clear and honest. I don’t understand why the Waitangi Tribunal believes it has the power and
authority to gainsay a newly-elected Government with an electoral mandate to change things,”
“What gives the Waitangi Tribunal the belief that their power is greater than the voting democratic will of Kiwis?”
5. These comments are inappropriate and unconstitutional. The Cabinet Manual provides that Ministers must “exercise
judgement before commenting on matters before the courts or judicial decisions” (clause 4.12) and that “Ministers
should not express any views that are likely to be publicised if they could be regarded as reflecting adversely on the
impartiality, personal views, or ability of any judge” (clause 4.13). The Cabinet Manual at clause 4.16 also provides
that Ministers may comment on the effectiveness of the law “but not where the performance of the courts is brought into
question”.
6. Minister Jones’ comments directly bring into question the performance of the Waitangi Tribunal, an independent
Commission of Inquiry established by legislation that serves a function akin to a Court and over which a Judge
presides. The comments, which are paired with a threat of executive review of the function and purpose of the Tribunal
could also have a chilling effect and reflect adversely on Waitangi Tribunal decisions going forward. Te Hunga Roia
Māori o Aotearoa considers that Minister Jones’s comments breach of the separation of powers and are likely to breach
the Cabinet Manuel.
7. This is not the first time Minister Jones has made public criticism of the Tribunal. The difference here as compared
to election campaigning is that there is a live claim before the Tribunal and the Tribunal has a statutory obligation
to inquire into it. When making electioneering comments, Minister Jones was not then a part of the Executive. Minister
Jones’ comments have the effect of undermining both the Tribunal and its processes regarding a current case. That is
not the role of the Executive. The remedy available for the affected Minister is through judicial review, which has
been sought. It is for the High Court, in accordance with the rule of law, to determine whether the Waitangi Tribunal
has overreached by issuing a summons. Ministerial comment relating to a judicial decision that is now currently before
the High Court is an unconstitutional use of power and platform that undermines the integrity of our system of law.
8. Te Hunga Roia Māori o Aotearoa are seeking:
a. a review by the Prime Minister and the Cabinet Office in respect of whether there has been a Cabinet Manual breach;
b. that the Attorney-General, who has particular responsibility for maintaining the rule of law, to exercise her
constitutional functions to uphold the integrity of the judicial branch of government within Cabinet; and
c. an attendance with the Prime Minister and Attorney-General alongside the Cabinet office to discuss this matter
further.
Nā māua,
Natalie Coates | Tai Ahu
Tumuaki o Te Hunga Rōia Māori o Aotearoa