To increase the statutory cap on the membership of the Waitangi Tribunal from 16 to 20 by amending section 4(2)(b) of the Treaty of Waitangi Act 1975.
The Waitangi Tribunal (‘the Tribunal’) is a permanent commission of inquiry established to inquire into, and make recommendations on, acts or omissions of the Crown that may be inconsistent with the principles of the Treaty of Waitangi.In accordance with section 4(2)(b) of the Treaty of Waitangi Act 1975, the Tribunal consists of a Chairperson and ‘between 2 and 16 other members’.Since 1989 (when the upper limit of 16 was set), the membership of the Tribunal has mostly been maintained close to this maximum.
The Government has committed to settling all historical Treaty claims by 2020 and to this end has set a closing date for the submission of historical Treaty claims to the Tribunal of 1 September 2008.To assist the Government in achieving its 2020 target, the Tribunal has committed to inquiring into and reporting on all historical Treaty claims submitted to it by 2015.
The Tribunal has advised that both the closing date and the 2020 policy is likely to increase its anticipated workload for the next seven years as historical claims will now need to be lodged and reported on within a more concentrated timeframe.This additional workload will place pressure on the historian (and to some extent kaumātua) members of the Tribunal as the claims will be of an historical nature.
In order to meet this increased workload, the Tribunal seeks an increase in the upper limit of its membership to acquire the level of expertise and human resource it needs to complete its workload to a high standard and to contribute towards the Government’s target of settling all historical Treaty claims by 2020.
An amendment to section 4(2)(b) of the Treaty of Waitangi Act 1975 is required to increase the upper limit of the membership of the Waitangi Tribunal from 16 to 20.
The Waitangi Tribunal approached Te Puni Kōkiri seeking an increase in its membership to meet an anticipated increase in workload and contribute towards the Government’s target of settling all historical Treaty claims by 2020.This increase would also provide the Tribunal with a wider pool of candidates and ease pressure on the current membership.
A secondary benefit of increasing the Tribunal’s membership base is the improved ability to avoid conflicts of interest when appointing inquiry panels. Avoiding actual or perceived conflicts of interest has become an issue in recent years due to the involvement of members with business or other institutions that have an interest in the inquiry; previous association with or work for a claimant or Crown party to the inquiry; or research likely to be used as evidence in the inquiry.A broader membership base would help address conflict issues as they arise.
Members are appointed to the Tribunal by the Governor-General on the recommendation of the Minister of Māori Affairs (made after consultation with the Minister of Justice) for a period of three years.In considering the suitability of persons for appointment to the Tribunal, the Minister of Māori Affairs must have regard to the person’s knowledge of and experience in the different aspects of matters likely to come before the Tribunal.
At present, there are 14 warranted Tribunal members.The Minister of Māori Affairs is currently considering candidates for appointment to the remaining two positions.
In addition to the membership of 16, there is also a Chairperson of the Tribunal, who can act as a presiding officer of an inquiry or appoint Māori Land Court judges to act as presiding officers. Currently, the Chairperson and six Māori Land Court judges are serving as presiding officers of Tribunal inquiries.
The composition of each inquiry panel takes into account members’ knowledge of and experience in different aspects of matters likely to come before a particular Tribunal inquiry.The balanced composition of inquiry panels is important as their members have different roles depending on their particular knowledge or experience.For example, most inquiry panels will include a kaumātua member and one or more general members. In addition, those inquiries relating to historical claims – the great majority of large-scale inquiries – will include an historian member on the inquiry panel.
While members are appointed as full-time members, some do not work full-time throughout their three year term. This may be because they are only required at certain points of an inquiry or their wider business, tribal, academic or professional commitments prevent full-time work.Historian members are more likely to work full-time (3 of the 4 historian members currently work full-time).This is because historian members are often required throughout the inquiry process.Aside from the hearing stage of an inquiry, historian members also assess the evidential base, analyse issues for inquiry and make a leading contribution to report writing.
By incorporating this amendment in the Māori Purposes Bill 2007, it is hoped that the increase in the membership of the Tribunal will be formalised by June 2008 (when the Māori Purposes Bill 2007 is scheduled for enactment).This will provide adequate time to appoint additional members and ensure that the Tribunal is resourced from 1 September 2008 when its workload is expected to increase.
As the Government’s 2020 policy prioritises the settlement of historical claims, the Tribunal has identified a need for more historian members. There will also be an increased need for kaumātua members as at least one Māori member is required to sit on inquiry panels and usually one kaumātua is also present.
As noted above, members are appointed to the Tribunal by the Governor-General on the recommendation of the Minister of Māori Affairs after consultation with the Minister of Justice.This provides Ministers’ with the discretion to recommend appointments only where they consider the appointment is necessary.Therefore, the membership can be maintained at an appropriate level depending on workload, even once the cap is increased.
Employing further contractor staff is not the preferred option for resolving the Tribunal’s resourcing needs.While contractors provide important assistance to the Tribunal, their work is short-term and supportive in nature and cannot fulfil the long-term work and level of contribution historian and kaumātua members provide to the inquiry process.Additionally, it is the Tribunal membership, rather than the supporting staff and contractors, that is ultimately accountable for Tribunal reports, and only Tribunal members can be appointed to inquiry panels.
It is anticipated that the workload of the Tribunal will decrease once all historical claims have been inquired into and reported on by the Tribunal.As noted above, the Minister has the discretion and flexibility to appoint or reappoint members as workload requires.
To improve the clarity and accessibility of section 6 of the Treaty of Waitangi Act 1975.
Section 6 of the Treaty of Waitangi Act 1975 (the Act) is a key provision which sets out the rights of Māori to make claims against the Crown in respect of alleged breaches of the Treaty of Waitangi.It also confers on the Waitangi Tribunal its jurisdiction to consider such claims.
As claims have been settled between iwi and the Crown, the Waitangi Tribunal’s jurisdiction in relation to these claims has been removed.This arrangement has been given legal effect by adding a subsection to section 6 every time a new Treaty Settlement Act is passed specifying how the Waitangi Tribunal’s jurisdiction is affected.A reference to section 6 is also added to the corresponding Treaty Settlement Act.
The effect of this drafting technique is that section 6 now comprises 25 subsections relating to Treaty Settlement Acts, making it progressively larger and more difficult to follow. Section 6 will continue to expand as more settlements are achieved.The Parliamentary Counsel Office considers that the accumulation of these repetitive amendments will eventually affect the clarity and accessibility of the important provisions of section 6.
To remedy this issue it is proposed that the current subsections referring to Treaty Settlement Acts in section 6 be moved to a new schedule to theTreaty of Waitangi Act 1975.As future settlements are reached, references to associated Treaty Settlement Acts will be listed directly in the new schedule.
References to section 6 in Treaty Settlement Acts will also need to be removed by consequential amendment, as they will no longer be required.
In August 2006, the Parliamentary Counsel Office asked the Minister of Māori Affairs to consider restructuring section 6 to improve clarity and accessibility.
No.Moving references to Treaty Settlement Acts in subsections 6(8) to 6(10) and 6(12) to 6(32) to a new schedule will not affect the legal meaning or application of the Treaty of Waitangi Act 1975 or the Treaty Settlement Acts referred to in these subsections.
Subsection 6(11) removes the Waitangi Tribunal’s jurisdiction in respect to claims relating to licensed land in the takiwā of Ngāi Tahu, including claims brought by groups other than Ngāi Tahu.Subsections 461(1) and 461(3) of the Ngāi Tahu Claims Settlement Act 1998 (which will be the references listed in the new schedule) remove the Waitangi Tribunal’s jurisdiction in respect of claims brought by Ngāi Tahu in relation to licensed land but it does not capture the claims of other groups.As a consequence, section 6(11) is being retained in section 6 (as a new section 6(8)) to avoid any inadvertent changes to the legal meaning and application of the Ngāi Tahu Claims Settlement Act 1998.
If these changes are implemented, references to future Treaty Settlement Acts will be added to Schedule 3 on enactment.
In this event, references to these Treaty Settlement Acts will be added to section 6 in accordance with current drafting practice.It will be necessary then, if the proposed changes to section 6 are implemented, to also move these references to the new Schedule 3.
The twelve settlement entities related to Treaty Settlement Acts, referred to in section 6, have been consulted on the proposed amendments.Ten settlement entities responded with two providing no response.The ten settlement entities that responded have no issue with the proposed amendments and acknowledged that the amendments are technical in nature and do not change the legal application of their Treaty Settlement Act.
The settlement entities have been informed that the amendments may be progressed through this year’s Māori Purposes Bill and will be kept updated on progress of these amendments.
Last modified: 6/12/2007