Sequel to Real reason Waitangi Tribunal could not summons Chhour

Why Courts should have said Waitangi Tribunal could not summons Karen Chhour

In the High Court, Justice Isacs declined to uphold the witness summons issued by the Waitangi Tribunal to compel Minister for Children, Karen Chhour, to appear before it to be questioned.

There are three branches of government – the Executive (effectively Cabinet and the government departments or ministries), the Legislative (Parliament), and the Judicial (the courts). The doctrine of comity requires each of those branches to treat the others with respect.

In short, the High Court decided that the doctrine of comity meant that the Tribunal could not summon the Minister unless her evidence was clearly necessary, and it wasn’t.

In that decision the High Court treated the Tribunal as if it were a court when it is not.

I am pleased to see that the Court of Appeal decided the comity principle doesn’t apply. But it still said that the Tribunal was empowered to summon the Minister. In doing so the Court of Appeal failed to consider two vital elements.

First, the Tribunal’s function is to make recommendations to the Crown. It does so by sending its findings to the Minister of Māori Affairs “and such other Ministers of the Crown as in the opinion of the Tribunal have an interest in the claim.” In this case that would obviously include the Minister for Children.

The Tribunal’s position as a standing commission of inquiry, and its function to make recommendations to the Crown and report to Ministers mean it is best considered as a specialist part of the Executive Branch, established to inquire into matters within its functions, to assist the Executive Branch with respect to decisions of Cabinet as the decision-making organ of the Executive Branch.

In this case, the Tribunal has summoned to give evidence one of those whom the Tribunal exists to assist — the responsible Cabinet Minister.

By forcing her to appear and give evidence it is adopting an adversarial position in conflict with its statutory position of adviser to her and the Cabinet of which she is a part. As this is inconsistent with its functions of making recommendations to the Crown, the summons must be invalid.

Secondly, the Tribunal’s jurisdiction is where “any Maori claims that he or she, or any group of Maoris of which he or she is a member, is or is likely to be prejudicially affected” (in this case) by a policy adopted by or on behalf of the Crown.

If claimants claim to be prejudicially affected by a proposal the Minister has recommended to Cabinet, they don’t need the Minister – the person they are advising – to prove their claim. They, not the Minister, claim to be prejudicially affected. They, not the Minister, must know why they are prejudicially affected. They want the Tribunal to make recommendations to the Minister explaining why they are prejudicially affected.

If the Minister wants to give evidence to demonstrate that the claimants are wrong and that there is no prejudice, that would be her entitlement. There can be no genuine reason to summon her to prove their claim.

So, it is obvious there can only be improper, politically motivated purposes.

For these reasons, the summons ought to have been held to be invalid, but these arguments were not advanced on the Minister’s behalf. Instead, the Crown lawyers advanced arguments which elevated the Tribunal’s status. This is consistent with the public service attitude that advancement of Treaty matters is a wholly desirable activity but does not serve the government and the general public in the way it and they should be served.