Can you pre-breach the Treaty?

Good faith is a reciprocal value not upheld by end-runs around the prerogatives of Parliament.

Photo by Kishan Modi on Unsplash

The government intends to introduce legislation to repeal Section 7AA of the Oranga Tamariki Act 1989. That section currently provides that the ministry must give effect to principles that acknowledge the Treaty of Waitangi's partnership. The intent of the law is to prioritise the cultural identity and ties of Māori children in the organisation’s care.

The Waitangi Tribunal wants to investigate these intentions. It has summonsed the minister to explain herself. Several colleagues of the minister have hit back with strong language and have attracted the opprobrium of the press and liberal legal commentators as a result.

But something that is not getting nearly enough attention is that this legislative change has not yet happened. It is a proposal. While we can forecast with great confidence that a bill will be introduced, the ultimate outcome is subject to the rigours of Parliamentary debate, public consultation and expert input through the select committee process.

There has been no suggestion of which I am aware that those things are going to be dispensed with.

The Tribunal's move to investigate a speculative future scenario should raise concerns about the appropriateness of its actions.

The legal framework governing the Waitangi Tribunal explicitly restricts its investigatory powers to instances where a breach has occurred or is occurring. It is not equipped, nor is it intended, to act as a preemptive political body scrutinising legislative proposals before they have been debated and passed by Parliament. This is a clear boundary set to respect the supremacy of Parliament and its exclusive role in law-making. By attempting to assess a proposal not yet in force, the Tribunal seems to be positioning itself to influence or pre-empt democratic decision-making.

The Treaty of Waitangi Act 1975 forbids the tribunal from engaging in matters actively before Parliament. This aspect of the law was not inserted for no reason. The reason is that it safeguards the independence and sovereignty of Parliament in the legislative process.

By launching an inquiry into what remains a hypothetical situation, and rushing to complete it before Parliament takes the matter up, the Tribunal risks overstepping its mandate and infringing on the legislative process. In spirit, at least.