ACT is promising to strip the Waitangi Tribunal of its power to scrutinise contemporary Crown decisions and abolish the institution once its remaining historical claims have been completed.
The party has unveiled its Treaty and settlements policy, proposing to amend the Treaty of Waitangi Act to restrict the Tribunal to historical claims lodged before the September 2008 deadline and end its jurisdiction over contemporary Crown policy and conduct.
Once those remaining historical claims were heard, ACT says the Tribunal would be automatically disestablished.
ACT leader David Seymour said the Tribunal had played an important role in addressing historical grievances but argued its contemporary work had moved beyond what the institution should be doing.
“The Waitangi Tribunal has been part of New Zealand’s constitutional landscape for more than fifty years. It has made an important contribution, particularly in helping address historical grievances. But no institution should exist just because it always has,” Seymour said.
“Through urgent and Kaupapa inquiries, the Tribunal now passes judgement on day-to-day government policy. It proposes alternative policy settings and seeks to steer decisions that properly belong to elected Governments and Parliament.” he said.
The policy would effectively end the Tribunal’s role in examining new alleged breaches of Te Tiriti by the Crown, leaving the courts as the avenue through which people could challenge unlawful government action.
ACT says it would instead strengthen protections applying to all New Zealanders through ordinary law, pointing to its separate proposal to add property rights to the New Zealand Bill of Rights Act.
“Every New Zealander deserves strong legal protections and access to the courts, regardless of ancestry,” Seymour said.
“As we approach 2040, two centuries since the signing of the Treaty, it is time to complete the historical settlements and move New Zealand forward.”
Tribunal review still unresolved
ACT’s proposal comes while the coalition Government is itself yet to decide what changes it will make to the Waitangi Tribunal following a major review of its powers, jurisdiction and future role.
The review stems from the National-New Zealand First coalition agreement, which committed the Government to amend the Treaty of Waitangi Act to refocus the “scope, purpose and nature” of Tribunal inquiries towards what the parties described as the original intent of the legislation.
An Independent Technical Advisory Group completed its work last year, but its report has still not been publicly released, and ministers continue to consider the recommendations.
Māori Development Minister Tama Potaka said last month the findings were before ministers and being actively considered, describing it as “significant work” and saying the Government wanted to get its response right.
It’s understood the review does not recommend removing the Tribunal’s ability to undertake kaupapa inquiries, despite New Zealand First deputy leader Shane Jones pushing for its role in those inquiries to be curtailed.
Potaka has also said he does not support removing the Tribunal’s ability to undertake its current kaupapa inquiries.
That would put ACT’s newly announced position significantly further than the recommendations understood to be contained in the Government-commissioned review.
Kaupapa inquiries examine broad issues affecting Māori across the country, with current inquiries covering areas including mana wāhine, climate change and freshwater and geothermal resources. The Tribunal has also used urgent inquiries to examine contemporary Crown decisions.
The Tribunal was established in 1975 to investigate contemporary Crown actions, with its jurisdiction extended retrospectively in 1985 to allow it to consider historical breaches dating back to 1840.
New historical claims have not been able to be lodged since September 2008, meaning its remaining historical work is finite.
Opposing directions on Te Tiriti
ACT’s announcement also comes little more than a week after Te Pāti Māori unveiled a Te Tiriti policy proposing to take the Waitangi Tribunal in almost the opposite direction.
Te Pāti Māori wants to strengthen the Tribunal by making its recommendations binding on the Crown, with implementation timeframes and judicial enforcement where required.
It has also proposed establishing an independent Te Tiriti Commission capable of investigating ministers, departments and Crown agencies and issuing compliance orders to stop or suspend executive decisions it finds seriously breach Te Tiriti obligations.
A government wanting to proceed with a decision subject to such an order would have to challenge it in the High Court.
Te Pāti Māori has made its wider Te Tiriti and constitutional transformation package a bottom line for post-election negotiations, although Labour has already rejected some of its most significant mechanisms.
Labour leader Chris Hipkins has ruled out allowing a Te Tiriti Commission to overrule Cabinet decisions, while the Greens have indicated support for strengthening the Crown’s obligations under Te Tiriti and making Tribunal recommendations binding, something Labour also does not support.
The competing policies set up starkly different propositions for voters over the future of one of the country’s key Te Tiriti institutions.
Where Te Pāti Māori wants to significantly increase the legal force behind Tribunal findings, ACT would remove its ability to consider contemporary Crown decisions altogether before eventually bringing the Tribunal itself to an end.
Seymour said ACT would not impose an arbitrary deadline for completing outstanding historical claims but would legislate for the Tribunal to be automatically wound up once every eligible historical claim had been completed.
“The Tribunal’s historic work is finite and nearly completed,” he said.
“As 2040 approaches, we should complete the remaining historical settlements, protecting every New Zealander’s right under the same law and courts, and move forward under one law for all with one future together.”
