Why does the Waitangi Tribunal insist on following the law?

The Treaty of Waitangi Negotiations Minister Chris Finlayson is wrong in his public criticisms of the Waitangi Tribunal. Perhaps the Attorney-General Chris Finlayson could have a quiet word in his ear about the importance of the separation of powers in our Constitution?

Via NewsTalk ZB (and sorry for the full cut-and-paste), it would appear that Treaty of Waitangi Negotiations Minister Chris Finlayson is starting to get a little bit fed up with the Waitangi Tribunal:

The Treaty Minister is unhappy with what he's describing as the Waitangi Tribunal's "illegitimate" investigation of areas outside its scope.

An urgent hearing has been announced into whether the Crown has failed to reduce high Maori imprisonment and reoffending rates.

Chris Finlayson said the Tribunal seems to investigate everything these days.

"I think they'd be much better to focus on resolving all the historical inquiries that they have on," Finlayson said.

"I think they're starting to move into areas I regard as quite illegitimate." 

Finlayson is warning the Tribunal to sort its priorities.

"They seem to be investigating everything at the moment. I don't know whether they're a permanent commission of inquiry or some kind of imperial senate."

Let's put the favourable spin on this, to start with anyway. The National Government (with Chris Finlayson as Minister in charge) has a quite admirable record in reaching settlements of historical grievances. Certainly it's managed to put far more of these to bed than was the case under the last Labour administration. So significant credit given where credit is due.

However, National also had a policy of finalising all such historical settlements by 2014 - a target that it has now missed. And there's still some pretty significant areas of Te Ika a Maui that remain in contention (see the map on page 4 of this). The resolution of some of those claims, such as Ngāpuhi's long, complicated and divisive one, are waiting on the Waitangi Tribunal issuing a report on the historical grievances underlying it. 

So you can see why a Minister might get a bit grumpy with the Tribunal for (as he sees it) diverting resources away from the things he needs done so that he can deliver on the policy promises that his party has made. Why take on new "urgent" inquiries when there's long-standing and pretty important ones still bubbling away on the stove?

However, Minister Finlayson seems to go a bit further than this in his comments. He seems upset not just that the Tribunal is giving urgency to issues other than historical claims, but rather that it is looking at issues such as "whether the Crown has failed to reduce high Maori imprisonment and reoffending rates" at all. His claim seems to be that these sorts of things are just none of the Tribunal's business.

With respect, this view seems to fail to reflect what the Waitangi Tribunal's governing legislation - the Treaty of Waitangi Act 1975 - actually requires of it. 

Under section 6(1), any Maori may submit a claim to the Tribunal that an "ordinance or Act [of Parliament], or regulations, order, proclamation, notice, or other statutory instrument, or policy or practice [of the Crown], or act or omission [of the Crown], was or is inconsistent with the principles of the Treaty." To paraphrase, if you are Maori and you think the Crown has done (or is doing) you wrong, you can complain to the Tribunal about it.

Under section 6(3), the Tribunal then "must inquire into every claim submitted to it under subsection (1)". Note the mandatory language - there's no discretion or choice involved here. If the complaint is lodged, the matter must be inquired into by the Tribunal.

The only (relevant for now) grounds on which the Tribunal can refuse an inquiry are found in section 7, which permit a claim to be rejected if the Tribunal believes:

  • the subject matter of the claim is trivial; or
  • the claim is frivolous or vexatious or is not made in good faith; or
  • there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to the Ombudsman, which it would be reasonable for the person alleged to be aggrieved to exercise.

Let's then consider the immediate inquiry that has riled Minister Finlayson - the so-called "Corrections Claim". This has been brought on the basis that:

Māori comprise 15% of the population, but make up the highest percentage of all [criminal] convictions. Half of all men and 63% of all women in prison are Māori. Despite Corrections dealing with high numbers of Māori offenders, the reoffending rates for the group are significantly higher than for any other ethnicity. A 2009 Corrections report found that five years after release from prison, 77% of Māori offenders were reconvicted, and 58% were back in prison.

Yet, in spite of these numbers, the Department of Corrections (allegedly) has "let its Māori Strategic Plan lapse without any consultation with Maori and since then it has had no strategy to address Māori reoffending."

Now, does that claim look to you like it deals with a "trivial" issue? Does it look to you like it is "frivolous or vexatious or is not made in good faith"? What other "adequate remedy" do the claimants have to resolve this issue?

If your answer to the above is "no", "no" and "none", then the Tribunal must, by law, accept the claim. No ifs, no buts, no maybes. It is what the governing statute requires of it. And the same goes for any of the other hearings on matters that Minister Finalyson apparently thinks are turning the Tribunal into "some kind of imperial senate"

So I think Minister Finlayson's claims are flat out wrong as a matter of law. Furthermore, they are questionable as a matter of constitutional propriety. For the Waitangi Tribunal is a part of New Zealand's judicial system. Sure, it isn't a "court", but rather a permanent commission of inquiry. But it's still very much sitting within the judicial branch of our governing arrangements.

There are then important conventions regarding the relationship between the executive and judicial branches of government, in particular how Ministers of the Crown ought to speak (or, rather, not speak) about the actions of members of the judiciary (including Waitangi Tribunal Commissioners). In particular, the Cabinet Manual states:

Ministers may comment on the effectiveness of the law, or about policies on punishment (that is, on those matters where the Executive has a proper involvement), but not where the performance of the courts is brought into question.

Now, in the general course of things, the judicial branch has a champion at the Cabinet table in the form of the Attorney-General, whose job it is to ensure that these sorts of conventions are respected. As the Cabinet Manual again states:

The Attorney-General is the link between the judiciary and executive government. The Attorney-General recommends the appointment of judges and has an important role in defending the judiciary by answering improper and unfair public criticism, and discouraging ministerial colleagues from criticising judges and their decisions.

Unfortunately, in this case it seems just a little bit unlikely that the Attorney-General will choose to publicly correct the Minister of Treaty Negotiations' statements about the Waitangi Tribunal. Although, it would be quite funny to see Chris Finlayson change hats and do so!