By Ani OBrien

The Waitangi Tribunal’s Strategic Direction Review Group quietly posted their report on the Waitangi Tribunal website.1 The group had been tasked with completing “a thorough assessment of how the Waitangi Tribunal was implementing its strategic goals” in accordance with the Strategic Direction 2014-2025 (amended in 2020).

This was the document that, now famously, precipitated the swift resignation from the Waitangi Tribunal of former Labour Minister and Act Party Leader Richard Prebble.

Prebble’s response to the document is characteristic of one side of what is a diametrically opposed pair of pathways for the Waitangi Tribunal and for this country. His belief that with around 90 per cent of historical claims completed or near completion, the Tribunal should be looking to wind down, is in line with the perspective of the Coalition Government. The New Zealand First/National coalition agreement states:

Amend the Waitangi Tribunal legislation to refocus the scope, purpose, and nature of its inquiries back to the original intent of that legislation.

That suggests a retraction of the expanded role the Tribunal has been playing for the last decade or so.

On the other side is the activist-stacked Waitangi Tribunal, Te Pāti Māori, and generally more activist-minded Māori and tangata Tiriti.2 This group envisage an expansion of the remit and scope of the Waitangi Tribunal and it is this vision that is articulated in the Review of the Waitangi Tribunal’s strategic direction: report to the Chairperson.3

The report argues that there will be more contemporary and urgent claims and so more members are required and substantially more resourcing.

Recommendation 3: Address resourcing issues The Tribunal, as currently configured, with a fixed budget and a 20-member cap, experiences significant issues in resourcing its hearing programme. Given the volume and complexity of the Tribunal’s projected workload over the next decade, the matter of resourcing will need to be addressed.

The expansion that the review group foresee is informed by the fact that “the number of urgent inquiries escalated dramatically following the change of government in late 2023”:

The past year has seen an unprecedented sequence of fast-paced urgent inquiries following rapid policy and legislative changes affecting Māori implemented by the incoming coalition government. That tempo is now reducing, but we think that the experience of the past decade suggests that applications for urgency concerning matters of current policy and action are likely to continue at a fairly high rate.

Those who support New Zealand First and National’s plan to return the Tribunal to a retracted version of itself point to the use of urgent claims as a way for activists to circumnavigate the approvals system allowing them to push political agendas and act as a road block to the democratically elected Government.

The above comment from the review group does beg the question to what extent they believe that the Waitangi Tribunal should exist as a handbrake on Government action that they perceive to be wrong. Do they consider that every time a person with Māori ancestry doesn’t like a piece of legislation or an action by the Government that there should be an urgent inquiry?

Who can take a claim is another sticking point for the ‘retraction camp’. The Treaty of Waitangi Act 1975 allows for any Māori to take a claim, but the Treaty of Waitangi was between iwi and the Crown and this is a distinction we usually make.4 Currently, the taxpayer shoulders the cost of individual Māori or arbitrary groups to take claims as they wish. If the Act were amended to allow only for iwi to make claims, then they could quite reasonably be expected to bear the cost.

The broad eligibility criteria paired with a much more sophisticated activist class who understand how to use our legal and tribunal systems strategically indicate that urgent claims are likely to increase under the current settings. This in turn pushes back the completion of historic, contemporary, and Kaupapa claims. For a tribunal that was never meant to be permanent, it certainly appears there is no end in sight.

The Tribunal will continue to hear claims requiring urgent inquiry as necessary. Urgent inquiries enable the Tribunal to inquire rapidly into contemporary Crown actions and policies where claimants demonstrate that there is a risk of a Treaty breach leading to significant and irreversible prejudice to Māori.

Retractionists point to the original intentions of the Tribunal and argue that we are now way off course. This year marks half a century since the Waitangi Tribunal was created. By comparison the South African Truth and Reconciliation Commission was in place for just six years between 1996-2002.5

New Zealand is at a fork in the road. Expand or retract the Waitangi Tribunal? Expand or retract the racialised nature of our politics and governance?

The Kaupapa Claims are a matter of divergence of opinion also. The kaupapa inquiry programme was introduced in 2015:

grouping together claims that raised nationally significant issues affecting Māori as a whole in similar ways, covering both historical and contemporary claims and prioritising the order in which they were to be heard.

It is these inquiries which activists particularly want to see imbued with more resourcing and power. Te Pāti Māori is calling for the Tribunal’s recommendations to be binding on the Crown – a proposition that would spell the end of democracy.6 It is not difficult to see why they would want the Tribunal to have such power when the subject matter of the Kaupapa Inquiries are considered.

These thematic inquiries are boundless in their scope and range from topics such as Climate Change, Justice, Natural Resources & Environment Management, and the Constitution.7 It is also not difficult to see why the expansionist aspirations regarding these inquiries would be so alarming to the retractionist crowd.

The review group asserts that “Kaupapa inquiries make up a significant portion of the Waitangi Tribunal’s work programme over the next 10 years” and “on their present trajectories only a subset of the kaupapa inquiries is likely to finish by 2035.” That is more than ten years of further expansion under the current trajectory and does not take into account any additional contemporary or urgent claims.

As the 2014-2025 strategic direction nears the end of its final year, the Tribunal has initiated all of the planned district and kaupapa inquiries. An unprecedented 19 inquiries are underway, excluding those under urgency: these consist of five district and 13 kaupapa inquiries, alongside the standing panel to hear remaining historical claims.

After the previous Labour Government’s adoption of what had previously been seen as very radical extremist visions of co-governance and racialised policies, there is growing concern among those who favour retraction that clever timing by Chief Judge of the Waitangi Tribunal Dr Caren Fox could see Kaupapa Inquiry recommendations legislated. Dr Fox and her allies could, hypothetically, slow the progress of certain Kaupapa Inquiries to ensure that they are delivered to a Labour-led Government rather than a National one. A Labour/Green/Te Pāti Māori Government would be much more likely to consider radical recommendations to adjust our constitution, for example.

A great deal of power is wielded by the Chief Judge of the Waitangi Tribunal and without term limits they are able to use that power for many, many years. Dr Caren Fox is responsible for assigning members of the Waitangi Tribunal to claims and she is rather unencumbered by rules and regulations as to how she should do this. We are unlikely to see new members, appointed by what the Tribunal has made clear they see as a hostile Government, assigned to Kaupapa Claims that they could potentially derail. It is safe to assume Philip Crump and Grant Hadfield will not ever be on the Tomokia ngā tatau o Matangireia Constitution Inquiry.

It is worth mentioning here that there was some inaccurate reporting around the time these new members were appointed that the members they were replacing (and their expertise) were to be lost to the Tribunal. In fact, there are currently 31 members assigned to claims even though the legislation only allows for 20 members. That is because members continue to serve out their time on claims they are assigned to. It is quite possible, for example, that Prue Kapua whose warrant has expired, will continue to serve on existing claims for several years.8

Some have speculated that Dr Fox foresaw changes coming to the Tribunal with the change of Government as she ensured that existing members were stacked on longterm claims prior to the Government making personnel changes. As mentioned briefly above, Dr Fox could be Chief Judge for many years to come, assigning claims and approving urgent applications. Though her departure would likely make little difference as her Deputy, Judge Sarah Reeves, has been described as “pretty activist” too.

Justices Fox and Reeves naturally have close relationships with many of the activists and regular claimants before the Tribunal. Some of these activists and regular claimants also double as members of the review group appointed by Chairperson Dr Caren Fox to write the Waitangi Tribunal’s Strategic Direction Review Group Report. The close network of claimants and those who preside over the Tribunal does more than raise a few eyebrows. Some argue the nature of Māori relationships, the smaller population, and limited expertise are the reason for this tight network. Others suggest that it is simply collusive and riddled with conflicts of interest.

Looking at the review group, it was comprised of:

Tā Taihakurei Eddie Durie, Pou Ārahi/Patron

Matanuku Mahuika and Dr Season-Mary Downs, co-chairs

Lady Tureiti Moxon and Paul Morgan, claimant representatives

Annette Sykes and Jamie Ferguson, claimant counsel representatives

Andrew Irwin and Craig Linkhorn, barristers who have acted for the Crown in the past.

Judges Sarah Reeves and Miharo Armstrong, Waitangi Tribunal presiding officers

Kim Ngarimu and Dr Paul Hamer, Waitangi Tribunal members

They are a highly-qualified group with an incredible amount of expertise between them. However, their intimate involvement with the Tribunal and the complex web of networks also makes it difficult to argue that the report is in any way independent and free from various agendas.

Lawyer, and former Mana Party candidate, Annette Sykes, for example, is a proudly radical activist. She has acted as legal representation for claimants in front of the Tribunal and been a claimant herself.9 Managing Director of Te Kōhao Health, and 2023 candidate for Te Pāti Māori, Lady Tureiti Moxon “was appointed to the Waitangi Tribunal before stepping down in favour of pursuing claims or filing evidence as an interested party to proceedings personally.”10 She was also the lead co-claimant in the urgent inquiry into the disestablishment of Te Aka Whai Ora Māori Health Authority. Dr Season-Mary Downs is a Treaty lawyer, the sister of current Labour MP Willow-Jean Prime, and her doctoral thesis was on Nga taumata o te moana: Reconciling the governance and ownership of the takutai moana (foreshore and seabed). Both Matanuku Mahuika and Jamie Ferguson are from Kahui Legal “New Zealand’s pre-eminent law firm on Treaty of Waitangi matters”. Craig Linkhorn who is in the group due to acting previously for the Crown at the Tribunal is a co-editor of the Māori Law Review and has expertise in customary marine title and protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011.11 Dr Paul Hamer was appointed as a member of the Waitangi Tribunal in January 2020, and sits on the Wai 2180 Taihape: Rangitīkei ki Rangipō, Wai 2750 Housing Policy and Services, and Wai 3060 Te Rau o Te Tika (Justice System) inquiries.12 And Kim Ngarima was appointed to the Tribunal in 2018 and is currently on Mana Wāhine Kaupapa, Housing Policy and Services, Social Services and Social Development, and Identity and Culture inquiries.13

The review group’s collective life experience and the subject matter to which they have dedicated their careers is naturally incentivised by an expansionist vision for the Waitangi Tribunal. The problem is that not everyone shares their interests and benefits from the same incentives.

The current Government has a coalition agreement that promises retraction, but if they’re to deliver it they’ll have a fight on their hands first. Like the Treaty Principles Bill, the future of the Waitangi Tribunal is likely to result in a great deal of disagreement. National may be relieved to see the back of Seymour’s Principles in the coming month or two, but Peters’ Waitangi Tribunal reform is surely next cab off the rank.

Originally posted on ChangeMyMind.

1 – https://waitangitribunal.govt.nz/en/news-2/all-articles/news/report-of-the-waitangi-tribunals-strategic-direction-review-group

2 – I use tangata Tiriti (people of the Treaty) to describe non-Māori (in particular NZ Europeans) who align themselves with activism that promotes that Māori did not cede sovereignty and that co-governance should be implemented.

3 – https://waitangitribunal.govt.nz/assets/Strategic-Direction/Review-of-the-Waitangi-Tribunals-strategic-direction-Report-to-the-Chairperson.pdf

4 – https://www.legislation.govt.nz/act/public/1975/0114/latest/whole.html#DLM435392

5 – https://atjhub.csvr.org.za/south-africa-truth-and-reconciliation-commission-1996-2002/#:~:text=The%20Truth%20and%20Reconciliation%20Commission,measures%20to%20prevent%20future%20abuses.

6 – https://www.nzherald.co.nz/nz/politics/te-pati-maori-proposing-new-law-to-make-waitangi-tribunal-recommendations-binding-on-the-crown/3DROOGPCTJFXHB5KHMSGEPXTPA/

7 – Annex B. https://waitangitribunal.govt.nz/assets/Strategic-Direction/Review-of-the-Waitangi-Tribunals-strategic-direction-Report-to-the-Chairperson.pdf

8 – https://www.rnz.co.nz/news/te-manu-korihi/539795/former-waitangi-tribunal-member-prue-kapua-concerned-over-new-appointments

9 – https://www.rnz.co.nz/news/national/515197/claimants-want-children-s-minister-to-front-up-kanohi-ki-te-kanohi-face-to-face

10 – https://www.nzherald.co.nz/kahu/lady-tureiti-moxon-honoured-with-waikato-universitys-highest-award-for-30-years-of-mahi-for-maori/HWLDBPMNKBCDDBWWGSFV4TOPD4/

11 – https://www.cliftonchambers.co.nz/2017/07/craig-linkhorn/

12 – https://www.wgtn.ac.nz/maori/about/staff/paul-hamer

13 – https://www.waitangitribunal.govt.nz/en/about/about-the-waitangi-tribunal/tribunal/kim-ngarimu