Shane Jones’ and David Seymour’s criticisms of the Waitangi Tribunal give an impression of executive interference, says Te Hunga Roia Māori o Aotearoa. (Photo: RNZ, Angus Dreaver)

Te Hunga Roia Māori o Aotearoa (the Māori Law Society) has spoken out against New Zealand First deputy leader Shane Jones’s comments about the Waitangi Tribunal — comments which the prime minister has called “ill-considered”.

Jones, who’s also a cabinet minister, has been criticising the tribunal’s current investigation into the government’s decision to repeal section 7AA of the Oranga Tamariki Act, which underlines Oranga Tamariki’s  obligations to Māori under the Treaty of Waitangi.

This followed the refusal by the Minister for Children, Karen Chhour, to answer questions about why the decision to repeal was made — after which the tribunal issued a summons for her to appear before it and give evidence. Crown lawyers have sought a judicial review of that summons in the High Court.

Shane Jones, however, has openly criticised the summons, saying the tribunal is operating as a “wannabe American star chamber Pulp Fiction gig” . . . “What gives the Waitangi Tribunal the belief that their power is greater than the voting democratic will of Kiwis?” He then went on to say that he was looking forward to a review of the tribunal.

In response, Te Hunga Roia Māori penned a letter to Prime Minister Christopher Luxon and Attorney-General Judith Collins, calling for a review of whether the “inappropriate and unconstitutional” comments breached the separation of powers and the Cabinet Manual. 

Here, Natalie Coates, co-president of Te Hunga Roia Māori, tells Siena Yates about why the rōpū felt compelled to speak out, and what she sees as the real issue behind Jones’s comments.

 

We in Te Hunga Roia Māori have been watching the actions that the current government has been taking in relation to Māori issues with quite a bit of concern — but this one struck us, in particular.

Certain ministers in the coalition government have mounted varying attacks on the Waitangi Tribunal. Te Hunga Roia Māori felt compelled to speak out, not only because of the broader constitutional issues at play, but also because of the important role the tribunal plays in Aotearoa as one of the mechanisms that provides a check and balance on what the Crown is doing.

The Waitangi Tribunal is statutorily obliged to inquire into claims that are brought to it. In this instance, the issue before them is whether the removal of Section 7AA from the Oranga Tamariki Act breaches the principles of the Treaty of Waitangi. Like the courts, the Waitangi Tribunal has to operate within their interpretation of the limits of the legislation, for example, in exercising their power to call anyone to give evidence.

Natalie Coates is co-president of Te Hunga Roia Māori o Aotearoa, the Māori Law Society. (Photo supplied)

Whether it is operating within those limits, and whether ministers are excluded from being called, are questions for the High Court. The Crown has sought a judicial review of the summons, and the High Court will now look into the question of whether the tribunal was right or wrong. That is the normal rule of law process.

I do think it was a courageous and big call by the Waitangi Tribunal judge to require a minister to front up to the tribunal, but that call was made after the tribunal requested necessary information from the minister that it needed to consider, and it was not provided.

The tribunal also made the call, knowing that the Crown would judicially review the decision — which had already been indicated. So, appropriately, the issue has been sent to the High Court to check. They will either affirm the call, or say: “No, you have overreached your mark.” But that is the proper way for these things to happen. They are fleshed out and tested through the court process.

Unfortunately, Shane Jones, and then David Seymour subsequently, have made comments directly criticising the Waitangi Tribunal’s decision, a question that is subject to live and ongoing proceedings. We see this as problematic for a number of reasons.

The first is that, for society to function, people need to have faith in how the judiciary operates, and in its processes and powers. Things will very quickly fall over if the public can’t maintain faith in that institution.

There is a tripod of three powers in the legal system of Aotearoa: the executive, parliament, and the courts. Criticism that strikes at the competency and functioning of the judiciary from one of the legs of power in Aotearoa is very concerning. While the Waitangi Tribunal is not strictly a court, but a commission of inquiry, it’s what I would call “court adjacent”. It’s presided over by a judge, claimants are represented by lawyers, the tribunal applies a legal test to facts, court-like processes are adopted, and there are normal rights of appeal.

The second issue, however, is that the comments could be seen as amounting to ministerial executive interference. In this case, you had two cabinet ministers, Shane Jones and David Seymour, commenting directly on a legal question that’s currently before the High Court.

This doesn’t align with the well-accepted constitutional convention of the separation of powers. The whole point of that principle is so that we don’t have “unbridled power” — too much power concentrated in one body, which can then become judge, jury, and executioner. Basically, the convention instructs that each of the tripods of power need to stay in their lane. We think the comments stray beyond the established lines.

A related issue is not only the specific critique of the Waitangi Tribunal’s summons decision, but also that it was paired with the threat of a review of the tribunal. Shane Jones effectively said: “You’ve overstepped your power, and we’re going to review you.” And David Seymour even went as far as to say: “The tribunal summonsed the wrong woman, on the wrong issue, at the wrong time. No wonder some people think they’re past their use-by date. Perhaps they should be wound up for their own good.”

Of course, it’s within the government’s powers to review institutions and to change the laws, so raising the possibility of a review is fine on its own. But these two things combined is deeply concerning. That’s when we start to get an impression of interference.

What these types of comments do is hang an axe over the Waitangi Tribunal which threatens to drop if they behave and exercise their powers in a particular way. This has a potential chilling effect. The tribunal should be free to exercise its role within the parameters of the legal limits expressed by the law and, if needed, checked by courts.

But based on these types of comments from the executive, future tribunals and courts may shy away from making decisions, because of the threat hanging over them. That is executive interference.

The prime minister made a statement on Friday saying that the ministers’ comments were “ill-considered” and that he’d be “underscoring” his concerns with them, which is positive. But when he’s relying on these ministers to hold the balance of power, what can he do apart from a soft telling-off? The options in this circumstance seem quite limited if he wants to stay in power.

That said, it’s vital to maintain the constitutional conventions that are at the heart of the way power is exercised in Aotearoa. So, some action is needed to ensure that there are clear expectations and consequences about when ministers go too far and breach the Cabinet Manual — which we think likely occurred in this case — and to avoid this type of comment being made in the future. It undermines the integrity of our judicial bodies, and that’s a bigger issue for democracy and the proper functioning of our legal system.

We would welcome a meeting with the prime minister and attorney-general. We’d certainly be keen to talk about some of our concerns with them. If we allow this kind of critique of issues that are before courts and threats against the Waitangi Tribunal to go unchecked, then we undermine faith in all the institutions which underpin our democracy.

 

Natalie Coates (Ngāti Awa, Ngāti Hine, Ngāti Tūwharetoa, Tūhourangi, Tūhoe, Te Whānau a Apanui) is an Indigenous and human rights lawyer and co-president of Te Hunga Roia Māori o Aotearoa (the New Zealand Māori Law Society). She is a partner at Kāhui Legal where she specialises in Te Tiriti o Waitangi, Māori land law, and human and Indigenous rights. She has also taught courses on Te Tiriti, tikanga and legal ethics at the University of Auckland.

As told to Siena Yates and made possible by the Public Interest Journalism Fund.

© E-Tangata, 2024

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