My brief this week was to write a column on the Waitangi Tribunal.

Now, I often need to feel a bit het up in order to write — or at least write something vaguely meaningful. My usual gauge is the Shower Test. Do I stand in my morning shower, stock-still, with hot water levels merrily depleting while I stare into middle distance, ruminating about some issue? If so, that usually means I can write about that issue with some vim and vigour.

Unfortunately, despite being a legal academic, I find that the judicial and quasi-judicial institutions of our legal system don’t usually pass my Shower Test.

And then Mike Hosking came to the rescue with this recent column on the Waitangi Tribunal.

Now. To be fair — confessional, even — I don’t mind opinionated middle-aged Pākehā men sounding off. I don’t have a well-developed outrage nerve, and the opinions of people I don’t know don’t often hit that nerve. Rodney Hide, Paul Henry, Jamie Whyte, Duncan Garner, John Roughan, Brian Rudman, Cameron Slater, Martyn Bradbury et al, can say what they want. They, too, usually fail my Shower Test.

But I did find myself thinking about Mike’s column — and worrying about its basic wrongness.

I should note that the last time Mike interviewed me on Newstalk ZB, he got my name wrong, my gender wrong and my job title wrong, so I know he can be Trumpish on detail.

And even though I don’t care particularly much about anything he ever says, I do think his audience, and anyone else, deserves better information, and a fairer suck of the sav. So, as much as it pains me, let’s look at his statements about the Waitangi Tribunal.

The Waitangi Tribunal is having a busy old time of it at the moment. One might have thought that when the whole concept was dreamed up they would’ve given some thought to how long it was going to be around for, given it had a specific mandate which was by and large to deal with Treaty grievances.

You know, there is a great little legislative time machine we can use at this point. It’s known as the New Zealand Acts As Enacted collection hosted by the New Zealand Legal Information Institute. The beauty of this collection is that you can go back to any year an Act was passed and see What it Was Like Back In the Day. So have a look at the Treaty of Waitangi Act 1975, if you feel like it.

Actually, Mike’s not entirely wrong here. The tribunal was set up with a specific mandate, and part of that mandate was to hear claims. Inevitably, those claims were to involve grievance — we don’t make claims when all is right with the world. But one of the other parts of the mandate is to examine draft legislation referred to it for compliance with Treaty principles — a fact that’s escaped Mike’s notice.

He’s probably never looked at the Treaty of Waitangi Act 1975. If he had, he wouldn’t have written: “One might have thought … they would’ve given some thought to how long it was going to be around for.”

Let’s look at the opening words of the Act (and yes, they remain the opening words of the Act, 41 years after original enactment):

WHEREAS on the 6th day of February 1840 a Treaty was entered into at Waitangi between Her late Majesty Queen Victoria and the Maori people of New Zealand: And whereas the text of the Treaty in the English language differs from the text of the Treaty in the Maori language: And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles […] [Emphasis added.]

Clearly, as it was conceived originally, the Waitangi Tribunal was always intended to stick around to facilitate this notion of “the practical application of the principles of the Treaty of Waitangi”.

Of course, this was all a little ill-defined because, back then, we hadn’t really begun the process of articulating what those principles are — a process that has never ended, by the way.

For another thing, the tribunal was established as a permanent commission of inquiry. Now, “permanent” means different things to different people, but I think we all understand the notion of permanence as opposed to temporary-ence.

And, to begin with, historical claims weren’t part of the tribunal’s brief. Māori individuals (alone or as part of a group) could bring claims against the Crown only if they were being prejudiced at that time — or were likely to be prejudiced at some time in the future — by actions of the Crown, including by way of legislation, regulation, policy, and so on, where such behaviour was contrary to the principles of the Treaty.

By the way, the tribunal’s status as a permanent commission of inquiry is WHY its recommendations are not binding (with one exception, the power of resumption under Treaty of Waitangi Act 1975, sections 8A-8HJ, but we needn’t go into that here).

Given the scope in 1975 (to hear claims for contemporary or future wrongs) let’s face it, the tribunal was never intended to have an expiry date. The addition, in 1985, to the tribunal’s jurisdiction, to enable it to hear claims before 1975, made not one iota of difference to that.

But let’s dip our toe back into the murky world of Mike’s Tribunal Tribulations:

If you ever want an example of “build it and they will come”, or of an organisation that expands its brief to ensure survival, then the tribunal is your one-stop shop.

Okay, not gonna bite. See above.

Next, Mike alludes to the urgency claim filed against the TPPA. Harrumph, he reckons:

What can the tribunal do, to assuage the concerns? Answer? … nothing. Nothing it does is binding. And in highlighting the example we highlight what this has become — a gravy train. Everyone on the tribunal is getting paid, everyone presenting the cases is getting paid, and you know full well who’s footing the bill.

Um. Kind of true, but only in a way that doesn’t mean anything. Nothing in the jurisdiction of the tribunal allows it to “do anything” about the TPPA. That wasn’t what it was set up for (see above). Nevertheless, there are a good many Māori who would say that the Crown’s signing of the TPPA could well cause prejudice to Māori, being inconsistent with the principles of the Treaty.

I’m not about to enter into the TPPA debate, others articulate those concerns far more effectively than I can. But this is exactly the kind of claim the tribunal was set up for in 1975. What is Mike suggesting? That this forum just be cancelled because he happens to agree with the TPPA?

As for the “gravy train”, I don’t even know what a bloody gravy train is. I looked it up, and I’m still none the wiser. As far as I can see, it’s just a phrase people trot out for when they think people are getting money for things they don’t like. Like “fat cats”. And “on the pig’s back’, and “snouts in the trough”, and “sucking on the teat of the taxpayer”, or any other silly phrase that gives us permission to stop thinking.

Then Mike takes aim at the recently accepted claim in urgency against Corrections, concerning the Crown’s alleged failure to make a high-level commitment to reduce the disproportionate number of Māori in prison. He would like the tribunal to conclude that there is no real problem, Māori just have to stop committing crimes:

It would be refreshing to hear this conclusion from the tribunal, but I’ll bet you a week’s wages you won’t because that wouldn’t serve its purpose. 

Having dealt with the vast majority of Treaty grievances just what is its purpose? At what point does a government say, “You know what? We’re done.”

Once again. It’s not the tribunal’s purpose to tell Māori people how to behave so as to stop having negative experiences. That might be how Judge Judy does it, but the tribunal’s job is to determine if the Crown has acted in such a way — inconsistent with the Treaty principles, once again — that cause Māori to experience prejudice under the Act.

But enough of Mike. The Donald would have been proud of the lack of facts or thought in that column. And you know what? I give up. I agree. I, too, cannot WAIT for the Waitangi Tribunal to fade from existence due to irrelevance. Why? Because that would mean the Crown had stopped breaching the principles of the Treaty. Let’s see some opinionated columns in the mainstream media about how the Crown might do that!

To return to earth for a moment, there are, though, at least a couple of important issues that should be addressed about the role of the tribunal. And to be fair, there are genuine grounds to be concerned about both the role and efficacy of the tribunal.

For one thing, as the settlement process began in earnest, the tribunal was intended to be an integral part of the process — as is still evident, if only because the Office of Treaty Settlements still requires claimants to have registered a claim with the tribunal before they can enter into direct negotiations for settlement with the Crown. But despite registering such claims, some claimants have gone straight to direct negotiations with the Crown. They don’t go to the tribunal at all and have no public hearing of their claim.

So, has the tribunal lost something of its moral suasion if Māori are not using it to actually be heard and to get a report written about their historical claims? And what kind of pressures have claimants been subject to in the direct negotiations process that might have been eased with the buffer of such a report?

The bigger question is really whether the tribunal recommendations make a difference. In many cases, one could argue no. For the tribunal’s recommendations to succeed, the Crown needs to buy in. Often it simply doesn’t. But sometimes it does — in a roundabout kind of way.

Here’s an example. In 2011, the Wai 262 recommendations were released along with the gargantuan report Ko Aotearoa Tēnei. (See my colleague Carwyn Jones’s summary here on the big job the tribunal had to do on this first whole-of-government inquiry.)

Ultimately, the tribunal wanted to see Māori intellectual property rights in mātauranga Māori protected within the New Zealand legal system by way of a special regime. Well, as of March 2016, the Crown has not responded to the recommendations. Or at least, if they have, I’ve missed it.

Is it strictly true to say that the recommendations have been ignored? In the main, probably. But in 2014, the Ka Mate Attribution Act was passed — in part to enact the provisions contained in the Ngāti Toa Rangatira Deed of Settlement dealing with the haka Ka Mate. The Attorney-General Chris Finlayson said at the time that the issue of protecting Ka Mate went beyond Ngāti Toa.

What we have here is, I believe, exciting legislation. It is the very first tentative step by the Crown towards recognition of traditional cultural expressions.

And maybe it is. But it could be argued that this legislation was, in part, a response to the issues set out with regard to Ka Mate in the Wai 262 report. This is the kind of impact that is hard to measure because it is indirect, partial, and incomplete.

The Waitangi Tribunal is sometimes described as “a safety valve” (Matiu Rata is said to have described the tribunal thus), or even as a kind of “truth and reconciliation commission”.

I would agree with that. Much pain and many tears have been shed before the tribunal, and the weight of that Māori participation in this mechanism must not be undervalued.

It is possible to wonder what the legal and political landscape for Māori would have been without it.

As the tribunal has become more formal, efficient, and court-like over the years, its emphasis has greatly shifted, it has been argued, from providing that necessary public safety valve to helping claimants do better in highly bureaucratic settlement negotiations. This is worrying to me.

So, one important saving grace of contemporary claims, such as the hearings on the TPPA and Corrections, may well be that the Māori public voice within the public square is getting louder, once more.

Long may it remain so.

© E-Tangata, 2016