Waitangi stoush to play out in court
Many issues at play around Minister for Children’s views on Oranga Tamariki
The Minister for Children versus the Waitangi Tribunal, which is set to be thrashed out in the High Court today, involves so much more than whether minister Karen Chhour should have been ordered by Judge Michael Doogan to appear before him.
That in itself has exposed ongoing tensions between the Government and judges.
But what sits behind it has also contributed to friction between the Government and the public service, between Māori and the Crown, and between the coalition of parties within the Government.
It is about whether a promise made on the campaign trail — to repeal section 7AA of the Oranga Tamariki Act — supersedes the Treaty of Waitangi principle to consult Māori on matters affecting Māori.
There is also an argument that says if a government consults over something it has already determined it will do, such consultation would be insincere.
Crown Law has pulled out its big guns to argue the case: SolicitorGeneral Una Jagose, the Government’s chief legal adviser and advocate, and Jason Varuhas, senior counsel at Crown Law and Professor of Law at Melbourne Law School. He gave the Robin Cooke lecture at Victoria University in 2023.
“It is highly unusual for a minister to be compelled to give evidence by the courts or a tribunal,” Varuhas told the tribunal on April 10. “Authority and constitutional practice establishes the default position is against doing so. This position is underpinned by basic constitutional principles. The circumstances of this case do not warrant departure from this well-established default.”
The Waitangi Tribunal has engaged barrister Matanuku Mahuika to argue its case. Mahuika, a leading light in Ngāti Porou, appears regularly before the tribunal and other courts and more recently co-authored the review of the Intelligence and Security Act 2017 alongside former Supreme Court Judge Terence Arnold.
“The minister as the primary mind behind this policy is in the best position to explain it to the tribunal,” Judge Doogan wrote in a memo explaining the summons. “As we see it, it would assist our inquiry to have the opportunity to hear from the minister, to better understand the reasons for the policy, and, as appropriate, test both the philosophical and empirical premises for the policy against consistency with the Treaty and its principles.”
Section 7AA was put into the Oranga Tamariki Act in 2019 as a response to over-representation of Mā ori children in state care. It sets out the obligations of the chief executive including “to ensure that policies, practices and services of Oranga Tamariki have regard to mana tamaiti [a child’s mana] and the whakapapa of Māori children and young persons and the whanaungatanga [kinship] responsibilities of their whā nau, hapū and iwi”.
Chhour, a Māori Act MP and former state ward herself, believes section 7AA “creates a conflict for Oranga Tamariki when making decisions in the best interests of the child” and campaigned to repeal it.
The case challenging the summons will be heard by Justice Andru Isac. He was appointed to the High Court in 2021.
The Crown’s case, however, has already been subverted by the actions of New Zealand First Cabinet minister Shane Jones and Act leader David Seymour.
The Crown’s strongest argument against compelling a minister to give evidence to the Waitangi Tribunal is the principle of comity, in which the courts and Parliament are expected to show mutual restraint and respect for the other’s role.
If the summons tested the principle of comity, Jones and Seymour trampled on it with their attacks on the Waitangi Tribunal: Jones likened it to a “star chamber” and Seymour suggested the tribunal should be wound up.
The comments suggest that Act and New Zealand First have not made the adjustment from Opposition to Government. The comments they made would be barely acceptable from an Opposition MP but more moderation is expected of Government ministers.
Prime Minister Christopher Luxon has described them as “illconsidered”, which is the first time Luxon has not flannelled when invited by reporters to criticise the actions of coalition partners.
Jones has swallowed his medicine, but the public reprimand has not gone down well with Seymour and he plans to have it out with Luxon. He told 1News he was surprised by Luxon’s reaction. “If you have concerns about another leader’s comments, you should raise them directly rather than through the media, which is what I intend to do.”
Whether or not their comments technically breach the Cabinet Manual guidelines is moot. The Waitangi Tribunal is a permanent commission of inquiry, not a court — although its two key presiding officers are judges: chairwoman Caren Fox and deputy chairwoman Sarah Reeves are judges of the Māori Land Court.
In any case, Luxon is entitled to expect ministers to follow the spirit of the manual, especially with the review of the 50-year-old tribunal happening this term. It has to be seen as a reasonable exercise, not a witchhunt.