Labour’s Waitangi Tribunal pledge lets radical constitutional review proceed – Richard Prebble
At last, the Labour Party has issued some policy. The policy with the potential to fundamentally change New Zealand is Chris Hipkins’ statement that Labour will keep the Waitangi Tribunal.
That means that, if Labour is elected, the tribunal’s Constitutional Kaupapa Inquiry, Wai 3300, will continue.
I know something about this inquiry. When I was appointed to the Waitangi Tribunal, I read the Wai 3300 claim, the tribunal’s preliminary rulings and its strategic plan. I realised that Wai 3300 was at its heart.
Wai 3300, in my view, is beyond the tribunal’s mandate and competence. It is potentially deeply controversial and could cause serious divisions in New Zealand society.
I refused to lend my name to what I regarded as a dangerous project and resigned.
Wai 3300 is not a routine inquiry into government policy. The tribunal is claiming the jurisdiction to determine whether the constitutional system under which New Zealand is governed is legitimate.
That includes questions about parliamentary sovereignty and representative democracy.
Some claimants are asking the tribunal to consider whether the fundamental constitutional settlement – including Crown sovereignty and parliamentary sovereignty – is legitimate, and whether New Zealand requires constitutional arrangements recognising a separate or equal sphere of Māori authority.
The tribunal’s own description of the inquiry includes constitutional legitimacy and sovereignty, parliamentary sovereignty, power sharing, tino rangatiratanga, autonomy and self-government.
The tribunal has not decided that our present constitutional arrangements are illegitimate. But it has decided that their legitimacy is within the scope of its inquiry.
That is an extraordinary claim of constitutional authority.
The tribunal expects to complete the inquiry in 2029. It will therefore be an issue for whoever wins the election.
A country can review its constitutional arrangements. Constitutional change should be approached with great caution, extensive public debate and, where appropriate, a commission of inquiry and a referendum.
Wai 3300 amounts to the most radical review of New Zealand’s constitutional arrangements ever undertaken. Few New Zealanders know it is happening.
I personally know many of the tribunal members and admire their sincerity and integrity. My concern is whether this is the right institution to conduct such a fundamental constitutional inquiry.
If we are deciding as a nation whether New Zealand should continue as a parliamentary democracy, with citizens enjoying equal rights before the law, would we choose as the head of the inquiry a Māori Land Court judge who has written:
“The Māori text of the Treaty, which most Māori signed, guaranteed that Māori would retain their ‘tino rangatiratanga’ (chiefly authority) which by implication includes the continuation of their own forms of governance, laws and citizenship.”
The other tribunal members have extensive backgrounds in Treaty claims, Māori history, law and Māori affairs. For some, this has been their life’s work.
That does not make them wrong. But it raises a legitimate question about whether a fundamental constitutional settlement should be determined through a tribunal whose origins and expertise lie in settling historic Treaty grievances.
I joined the tribunal because I am a staunch supporter of the Treaty.
It is a short document. Its preamble states its objective is to establish “Civil Government … necessary Laws and Institutions alike to the Native population and to Her Subjects.”
The English text of Article One is explicit: the chiefs “cede to Her Majesty … absolutely and without reservation all the rights and powers of Sovereignty.”
Article Two guarantees property rights.
Article Three extends to Māori the rights and privileges of British subjects. A principal right of a British subject is access to the courts and equality before the law.
Thirty-nine chiefs signed the English language text.
The Māori text uses different words. Article One says the chiefs give the Queen “te kāwanatanga katoa” — complete government.
It is from its interpretation of the Māori text that the tribunal is claiming its authority to conduct this constitutional review.
Governor Hobson and the chiefs would look at Wai 3300 with incredulity.
David Seymour has announced that Act will complete the remaining historical Treaty claims, end the Waitangi Tribunal’s contemporary jurisdiction, and wind it up once its historical work is finished.
Chris Hipkins has pledged to keep the tribunal, thereby allowing Wai 3300 to proceed.
The Labour Māori Caucus has issued a strong defence of the tribunal, describing it as an “independent watchdog” that does “vital work” holding the Crown to account and giving Māori a “pathway”.
These could be the most important policy announcements of the campaign.
We are yet to hear from Christopher Luxon on Wai 3300. I suspect he would rather not think about it.
Catch up on the debates that dominated the week by signing up to our Opinion newsletter – a weekly round-up of our best commentary.