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Treaty inquiry puts tribunal under a cloud

14 March 2004

The future of the Waitangi Tribunal is up in the air as the prime minister signals her displeasure with its performance.

The tribunal is likely to be included in the government's "high-level inquiry" into the status of the Treaty in the constitution, with Helen Clark indicating scepticism about the organisation's relevance.

"The sort of inquiry I'm looking at could well look at bodies like that," she told the Sunday Star-Times. "That's an institution that was designed 30 years ago.

"I think it's changed. I think particularly with these recent decisions on oil and gas, and foreshore and seabed, it's seen more as an advocacy body than what we would understand a tribunal as."

Clark's criticisms come as the Law Commission prepares to issue its report proposing an extensive restructuring of New Zealand's courts and tribunals.

The government has dismissed the tribunal's last three reports on contemporary claims, which recommended a Maori role in the third-generation radio spectrum, petroleum exploration, and the foreshore and seabed.

And it has been actively encouraging iwi pursuing their historic land claims to bypass the tribunal and go straight to direct negotiations for compensation.

Clark and Deputy Prime Minister Michael Cullen slammed the tribunal last week, accusing it of "serious errors" in its recommendation that the government take its foreshore policy back to the drawing board.

But last night, in a speech to a Labour Party regional conference in Wanganui, Cullen tempered his criticisms with an acknowledgment that the tribunal had provided the government with food for thought. "One key issue raised in the tribunal's report does require further thought. That is the loss of the inherent jurisdiction of the high court in relation to customary rights."

He would not expand on changes the government might make to its foreshore policy to retain the high court's powers to determine Maori rights on the coastline.

Associate Maori Affairs Minister John Tamihere yesterday defended the tribunal's relevance.

"The Waitangi Tribunal has absolutely provided one of the most healthy vents for Maori frustrations and to address perceived injustices. What we've got to set up is a solution to the level of angst that the Pakeha community is expressing and an inquiry is the start of that.

"It can't be closed because of the number of solid historic claims it has to hear. But we have to consider what the best way is to address contemporary claims."

Former tribunal director Morrie Love warned closing the tribunal would "seriously prejudice" iwi whose historic claims had not yet been heard.

And he said it also played an "absolutely necessary" role in running the Treaty ruler across government policy in contemporary claims such as the foreshore.

"Frankly at the more militant end of Maori society, if they get the message that they're going to be denied social justice, then who knows what will happen."

Cabinet is to discuss the mechanics of the inquiry tomorrow, and Labour will then run it past its caucus meeting on Tuesday.

Clark suggested the inquiry could consult with the wider public through the internet, Green-style discussion circles, or "citizen juries" such as those used in Britain.

"I think it has to make recommendations, I think it has to be visionary, I think it has to listen to the broad cross-section of Kiwis, and it has to look ahead."

She criticised National's leader Don Brash for fomenting the Treaty debate then refusing to participate in the inquiry.

"He's like the person who throws the grenade into the crowded marketplace and just wants to watch it burn. We've seen the grenade thrown in and said, `How do we try and get something constructive out of the awakened interest?' It's quite a different approach."

Brash's spokesman said Clark's signal on the tribunal was "yet another in a series of rapid U-turns to divert attention from the paralysis the government faces on its whole Maori policy and its ability to govern".

Jonathan Milne,
Fairfax New Zealand Ltd 2004
Sunday Star Times

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