What is the future for the Waitangi Tribunal?

Otago Daily Times

2 days ago

Now that the Treaty Principles Bill has been consigned to the bin some who want to keep up the conversation about sovereignty and rangatiratanga (Māori self-determination), are refocusing on the Waitangi Tribunal.
On the one hand are those who believe the tribunal should be remade to have the power to make decisions which are binding on the government.
This would make the tribunal the highest power in New Zealand, above Parliament. (Incidentally, King Charles may well have concerns if Parliament attempts to cede its authority).
On the other hand there are those who say the tribunal has done its job and should be dismantled.
One of the earliest documents in our history was the Treaty. This document was intended to provide for a peaceful society by, among other things, describing Queen Victoria as in charge, reserving to each tribe their lands, other possessions and their rangatiratanga.
This was interpreted for many years as leaving each Māori tribe authority over their own affairs and assets and that Queen Victoria was generally in charge over all.
The Waitangi Tribunal came into being in 1975. Its purpose was to make recommendations on claims relating to the application of the principles of the Treaty.
For that purpose it is to determine what the Treaty means and whether certain matters are inconsistent with these principles. It costs around $21 million per annum to run.
For most of us this tribunal was set up to right the wrongs perpetrated on Māori by the Crown confiscating lands and other possessions. For many years it has had widespread support from New Zealanders.
The law establishing the tribunal specifically denies jurisdiction in regard to any Bill that has been introduced to Parliament, unless Parliament has resolved to refer it to the tribunal.
As historical land claims are coming to an end, the publicised work of the tribunal has been taken up with making comment about a wide variety of issues, with a focus on the choices government might make.
For example the tribunal has spent some years looking into health.
The tribunal made a finding that "the health system has not addressed Māori health inequities in a Treaty-compliant way, and this is in part why Māori health inequities have persisted".
When the government disestablished the recently established Māori Health Authority the tribunal found that the Crown prejudiced Māori by not engaging with them over the scrapping of the authority.
The Waitangi Tribunal has also been conducting a long-standing inquiry into a variety of claims relating to freshwater.
Giving evidence to this inquiry The New Zealand Māori Council in 2018 pushed for a water commission to be appointed (rather than elected) made up of 50% Māori to control all water in New Zealand.
A lawyer representing over a dozen hapu and iwi said the way the Crown had managed freshwater and left Māori out of the process was similar to theft.
This year the tribunal has found that the Treaty Principles Bill breached Treaty principles by failing to guarantee rangatiratanga.
When it looked into the proposed Regulatory Standards Bill it found that, if it were enacted, this Bill would be of constitutional significance, as it seeks to influence the way Parliament makes law and therefore it is inherently relevant to Māori.
A potted version of the history could be described as thus.
In 1840 the Treaty of Waitangi was signed between the Crown and various Māori tribes in New Zealand. This gave Queen Victoria overall control of New Zealand.
Each tribe was guaranteed to keep ownership of their own land and possessions and to have internal control of their own affairs. Every citizen in New Zealand had the protection of the Crown.
In 1975 the Waitangi Tribunal was set up to deal with legitimate grievances over confiscation of land and other possessions. It was expanded in 1985 in relation to historical claims.
The tribunal has now interpreted its role as making pronouncements over any proposed legislation.
It seems to have decided that all legislation can and would affect Māori, and if Māori could become part of a group who become or remain disadvantaged the law proposed is a breach of Treaty obligations.
In our society, which now has many more than just British and Māori subjects, how can we best move forward?
Will we continue with the tribunal with a focus on Māori to the exclusion of other priorities for government support hoping this will remain viable?
Will we elevate the Waitangi Tribunal to make it the supreme decision-maker in New Zealand over all things which could possibly touch on the lives of Māori?
Or might it be better to decide once the tribunal finishes its historic claims it is time to close it down, possibly replacing its role of critiquing government policies as they may affect Māori with a cheaper option?
The challenge we have is to try to weave the Treaty and whatever arrangements we have around it with the primary duty of a stable democratic country to look after its most vulnerable without fear or favour.
One ring to rule them all, one ring to find them, One ring to bring them all and in the darkness bind them. Like Tolkien said.
[e-mail]
• Hilary Calvert is a former Otago regional councillor, MP and Dunedin city councillor.