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Children’s minister Karen Chhour (Image Getty, design The Spinoff)
Children’s minister Karen Chhour (Image Getty, design The Spinoff)

The BulletinMay 14, 2024

What the Court of Appeal’s latest ruling means for the future of the Waitangi Tribunal

Children’s minister Karen Chhour (Image Getty, design The Spinoff)
Children’s minister Karen Chhour (Image Getty, design The Spinoff)

The children’s minister could have been legally brought before the tribunal after all, writes Stewart Sowman-Lund in this extract from The Bulletin. To receive The Bulletin in full each weekday, sign up here.

The end of a lengthy court battle

The Court of Appeal has ruled that the children’s minister, Karen Chhour, could have been legally brought before the Waitangi Tribunal, countering a previous decision by the High Court. If you missed all of this, Carwyn Jones wrote a handy explainer for The Spinoff last month. In short, the Waitangi Tribunal had issued a summons to Chhour in response to the government’s proposal to repeal section 7AA of the Oranga Tamariki Act, a provision introduced in 2019 that requires the agency to recognise the principles of the Treaty of Waitangi. The High Court blocked this, arguing it wasn’t necessary. But yesterday, there was a significant development.

What the Court of Appeal ruled

As Newsroom’s Marc Daalder explained, the Court of Appeal overrode the decision. While the High Court had argued that the summons infringed on the “principle of comity” – basically, mutual respect between the executive, parliament and the judiciary – the Court of Appeal disagreed. Despite this, Chhour will likely avoid appearing before the tribunal, wrote Isaac Gunson at Te Ao Māori News, because the government’s proposed legislation has now made it to parliament.

In a media statement, Labour’s Carmel Sepuloni said the latest court ruling was further evidence the coalition should drop its proposed repeal. “National need to do the right thing and step in to stop the repeal of Section 7AA. They cannot allow Act to continue running rampant and belittling both the mana of the Waitangi Tribunal and the rights of tamariki Māori,” she said.

Where the heated opposition comes from

Section 7AA was introduced in 2019, less than a month after the issue of Māori children being taken from their parents became a nationwide talking point, largely because of a Newsroom investigation by Melanie Reid. But the troubles facing Māori children living in state care are nothing new, as Aaron Smale examined in this North and South feature. He argued that the erasure of section 7AA amounted to a “political stunt to prove to a Pākehā electorate that there’s one law for all” and that “the scrubbing of a few words from one statute will not so easily erase the history behind it or the legal implications that have been the subject of significant court judgements”.

Opponents of the repeal argue there will be significant ramifications. Sepuloni, in her statement, referenced a recent Waitangi Tribunal report that she said demonstrated why the proposed repeal may “mean harmful ramifications for Māori children”. The tribunal’s precise claim, as Glenn McConnell at Stuff reported, was that the repeal of section 7AA may cause “actual harm”, while former NZ First MP Tracey Martin, who was children’s minister in the Labour-NZ First coalition at the time the provision was implemented, told Tova O’Brien that children would be “worse off” if the government pushed through with its plans. Writing for The Spinoff earlier this month, Luke Fitzmaurice-Brown noted that while political parties are free to promise whatever they want, once they take office their actions must be guided by Te Tiriti.

Where this leaves us

Otago University law professor Andrew Geddis told The Bulletin that the Court of Appeal’s ruling was significant – not for what it means in this instance, but for the future of the Waitangi Tribunal. “Had the High Court’s decision stood, the tribunal’s power to require ministerial engagement would have been undermined. Future ministers could have largely ignored requests for information, effectively saying ‘I don’t care if you then think the worst of me’,” Geddis said. “Now, they know that they have to provide answers to the tribunal’s requests for information – for if they don’t do so voluntarily, then they can be legally made to do so.” This is likely to irk some government ministers, specifically David Seymour and Shane Jones, who both publicly criticised the tribunal last month in a move that some argued was a breach of the cabinet manual. PM Christopher Luxon said the ministers’ criticisms were “ill-considered”.

As for the repeal of 7AA, the coalition will soon be getting to work. The bill was officially introduced to parliament yesterday, during a recess period. Te Pāti Māori’s Mariameno Kapa-Kingi called this a “sneaky move”. Act’s Todd Stephenson, meanwhile, responding to the Court of Appeal ruling, said the Waitangi Tribunal had become “increasingly activist”.

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