Waitangi Tribunal Troubles
Warm-hearted, fuzzy-minded legislation often causes problems. Such is the case with the Treaty of Waitangi Bill of 1985. Rushed drafting and careless committee supervision produced an Act which required the Waitangi Tribunal to test Maori historical claims against "the principles of the Treaty", but left the definition of those "principles" to the Tribunal itself. The Act didn't define the roles of the chair or members of the Tribunal. The Government soon found itself the plaything of an inventive chairman, and historians and lawyers with suspect agendas. A tax-payer funded industry blossomed, topped up by the Crown Forest Rental Trust. Maori benefited short term: they gained the right to air their historical grievances, and genuine Treaty breaches were identified. But the thrust of the histories produced was improbable. They argued that Maori surrendered nothing in 1840, and their actions ever since were legitimate responses to rapacious colonists.
Governments that lightly surrender so much power, then fail to fix consequent problems, deserve all they get. David Lange's government tried to corral the runaway Treaty industry and the occasional encouragement it seemed to receive from Court of Appeal judgements. In 1989 Lange defined some Treaty "principles", but the Act wasn't amended. The tighter definitions sank without trace. Ministers did nothing.
During the 1990s the Treaty industry continued to breathe strange reasoning into that slender three-clause 1840 document which itself, like the 1985 Act, had been hastily cobbled together. Politicians always dislike fights with racial overtones. They muttered, sometimes audibly, and looked about for better appointees to the Tribunal. Few were found. Worried ministers now put the Tribunal on short pay and rations. Then, in despair, they reduced its relevance by encouraging claimants to bypass it and negotiate directly with the Crown. An organisation that was once centre field now shivers on the sideline. It has had an acting chair for four years and today an acting director too. Staff salaries were re-graded downwards. Several valuable officers left. Tribunal members learn of their organisation's activities from the media. Last week's findings hadn't yet been printed when their contents were released. Yet the Wellington Tenths report was completed many moons ago. Is anyone in charge?
But activism still ticks away like a crazy taxi meter. Extravagantly worded histories emerge; mercifully, no more contain the word "holocaust". The Tribunal has helped several widely-supported settlements of land grievances in line with the intentions of the 1985 Act. But it also produced a large, idiosyncratic report about the Napier hospital closure. Tribunal members with specialist health knowledge weren't consulted. The airwaves majority decision left the public incredulous. Now comes the Petroleum report on South Taranaki with some strange reasoning, especially pages 76-77. It marks another milestone on the road to total Treaty befuddlement.
On the opening day of the Petroleum hearings in 2000 the chairman was told by ministers that the Government was not prepared to un-stitch other "full and final" historical settlements no matter what the Tribunal decided. Petroleum, said the Prime Minister on 20 October 2000, should be dealt with as a contemporary, not historical claim. Resenting political interference with what he argued was a judicial process, the chairman pushed ahead and produced last week's Jesuitically-argued report. Amongst other things, it indirectly accuses the Prime Minister of a Treaty breach for her statement of Government policy. The chairman is wrong: the Tribunal's historical section is only a "quasi" judicial body. Unlike the courts, it was established for a short-term political purpose: to hear and report on historical grievances. Taking some account of current government policy is fundamental. Heeding advice, too. Judges take counsel all the time. Why not the Tribunal?
All this makes me conclude that last week the Tribunal's acting head was bent on a stoush with his paymasters. I hope the Prime Minister picks up the challenge. The Tribunal's current structure, its personnel, and its future role, need re-thinking as we move towards closure of historical claims and return to the original purpose of the basic Treaty of Waitangi Act. That obliges us to conduct our lives in accordance with the Treaty. Legislative change is needed. There should be careful reconsideration of the weightings given to Articles Two and Three of the Treaty. They are currently out of kilter. And definition of the "principles" must be removed from a clutch of state-paid activists and made the subject of broad-based public acceptance. Tribunal disarray has gone on long enough. It has nearly destroyed its reputation. Ministers should fix the mess.