Waitangi Tribunal puts dent in Crown

Are we witnessing round one in a constitutional boxing match?

The Waitangi Tribunal has warned of “revolutionary constitutional change”.

The Tribunal has heard claims against two policies of the present government: a policy to progress a Treaty of Waitangi Principles Bill (as agreed with the ACT Party) and a policy to review all legislation that refers to ‘the principles of the Treaty of Waitangi’ (agreed with NZ First).

It’s within the Tribunal’s jurisdiction to consider claims about government policies that may adversely affect Māori. It has no jurisdiction, however, over Bills that are before the House, unless the House refers one to the Tribunal. So its report on these policies pre-empts any related Bills.

A proposed Principles of the Treaty of Waitangi Bill has considerable importance for Māori – and for the whole country. But the Tribunal points out that the government has decided unilaterally, without consultation with Māori, to support a Bill at least to the first reading.

In a sternly worded letter to the Prime Minister, the Tribunal says that ACT’s proposed Treaty Principles Bill

“…is a solution to a problem that does not exist; there is no policy imperative that justifies it; it is ‘novel’ in its Treaty interpretations; it is fashioned upon a disingenuous historical narrative; its policy rationales are unsustainable; and its current text distorts the language of the Treaty/Te Tiriti.”

ACT’s interpretation of Article 2 of the Treaty, in particular, is indeed “novel”, as it seeks to apply it to “all New Zealanders”, not just indigenous peoples.

The government policy to review existing “principles of the Treaty” clauses aims to either clarify their purposes with more specific wording, or to repeal them if deemed unnecessary. The Tribunal says that this policy too has been agreed without input from Māori.

The Tribunal notes on p. 67 that

“…the term ‘the principles of the Treaty’ was introduced into legislation for a number of reasons, including as a way of reconciling the differences between the English and Māori texts of the Treaty/te Tiriti. We do not attempt to resolve the debate about the utility of the principles here, but we simply note the debate exists.”

The report outlines how the contemporary understanding of Treaty principles (notably “partnership”) has developed since the creation of the Tribunal in 1975, via the 1987 Lands case in the Court of Appeal, and so on.

Then, on p. 137, the Tribunal turns the heat up on the government. If a Treaty Principles Bill is enacted, then

“…a revolutionary constitutional change will be the result. As the Treaty/te Tiriti is the founding document of government in Aotearoa New Zealand, the Crown’s own legitimacy to govern will be undermined.”

If that’s the case, then, as a child of the Crown, the Tribunal’s legitimacy would be undermined too, along with its investigations and its many years of hard work to build confidence in restorative justice.

The Tribunal recommends abandoning the Treaty Principles Bill altogether, and putting the Treaty clauses review on hold while ministers undertake collaboration with Māori. It also recommends that Cabinet establish a Māori–Crown relations committee to oversee Treaty/te Tiriti policies.

The dismay and anger of claimants about the government’s policies, and the sense that Māori are under attack, are clearly conveyed in the report.

The ACT Party leader David Seymour, however, welcomed the Tribunal’s contribution to the debate. “We need a national conversation about our founding document”, he said, apparently unfazed. And he described the idea that the Treaty founded a partnership as “divisive”.

The Tribunal has broken new ground.

The Waitangi Tribunal’s recommendations seek to alter the conduct of executive government by calling for the creation of a new Cabinet committee and for the cancellation of Cabinet’s plan to introduce Bills.

Not even the Supreme Court would reach that far, unless something demonstrably unlawful had occurred. The Tribunal describes itself as “a permanent commission of inquiry”. Does that make it exempt from the conventions of separation of powers?

The Tribunal aims to block a Bill that would set out principles of the Treaty, on the grounds that doing so is inconsistent with the principles of the Treaty. The puzzle here is that the principles of the Treaty, as we understand them now, are, to a large extent, judge-made. The job of judges is normally to apply laws, not to make them up – unless they have to interpret a law in the context of complex facts. The lack of statutory definition has meant that judges have developed Treaty principles based on their best interpretations.

In other words, there is a problem: there’s a lack of statutory clarity, and there’s debate about it. The Tribunal’s solution is to stop the present proposals to clarify the principles in an Act of Parliament, as it could undermine the (judge-made) principles that they want to uphold. (Hypothetically, would the Tribunal have objected if, on the other hand, Te Pāti Māori had drafted an alternative Treaty Principles Bill before the ACT Party did?)

It boils down now to a power-struggle between unelected tribunal members and elected representatives, reflecting a deeper division within society.

Parliament holds a trump card: the power to amend the sections of the Act that define the boundaries of the Tribunal’s jurisdiction. But playing that card would only cause more strife.

The Tribunal accuses the present government of trying to use legislation for “revolutionary constitutional change”, although the Tribunal itself could be the platform for “revolutionary constitutional change” of a different kind. Some of the submissions made to the Tribunal sound as if they were addressing a high court of constitutional review. Is it already acting as such?

Te Pāti Māori have submitted a member’s Bill that would make the Tribunal’s findings binding on the Crown and allow the Tribunal to consider all proposed legislation for consistency with Te Tiriti o Waitangi. If that were to happen, then appointments to the Tribunal would become a matter of great public interest, given the power they’d wield.

There are other proposals for constitutional transformation – for instance, a Tiriti-based upper house of parliament that could, for argument’s sake, veto Bills that are deemed inconsistent with te Tiriti.

Are we witnessing the opening shots in a constitutional revolution?

If parliament could pass law only with sign-off from an appointed tribunal, based on its readings of a founding document, then we’d have, in effect, a new constitution.

As that founding document mentions neither representative assemblies nor elections, then we’d have even more principles to clarify. Is a House of Representatives consistent with the Treaty or not?

Are the people of Aotearoa up for constitutional questions of such magnitude?

This image is AI-generated on gencraft.