Attorney-General v Te Kenehi Mair and Ors

Just prior to Christmas, the Court of Appeal issued a decision relating to the jurisdiction and procedure of the Waitangi Tribunal.  The decision in Attorney-General v Te Kenehi Mair and Ors is available on the Courts of NZ website.  Although not central to the outcome of the case, Baragwanath J provides some interesting comments on the Tribunal’s ability to inquire into matters that are the subject of a bill before Parliament.

This case was an appeal against a High Court decision which had found that the Waitangi Tribunal had failed to take into account all relevant matters when it had refused to grant an urgent hearing for two claims which were before it.  The Tribunal has a process whereby claimants can apply to have their claims heard urgently.  Though urgency is only granted in exceptional circumstances.  An urgent hearing was sought for the two claims at issue because the claimants were concerned that their ability to pursue their claims through the Waitangi Tribunal would be prejudiced by the Crown’s decision to enter into Treaty settlement negotiations with another group from the same area.  The Tribunal did not grant these claims an urgent hearing.  The claimants made an application for judicial review of that decision.  In the High Court, MacKenzie J determined that the Tribunal had not taken into account all the types of prejudice which might be suffered by the claimants because of the Crown’s actions. MacKenzie J quashed the decision of the Tribunal and referred the matter back to the Tribunal to decide again.  The Crown appealed against MacKenzie J’s decision.

The appeal was heard by Chambers, O’Regan, and Baragwanath JJ.  The judgment of the Court was that the appeal should be allowed and the orders made in the High Court quashed.  As it turned out, by the time this decision was issued, the Waitangi Tribunal had already reconsidered the matter and declined the request for urgency once more.  The Court of Appeal found that no further re-consideration by the Tribunal was necessary.  Chambers and O’Regan JJ issued joint reasons for their decision, with Baragwanath J writing a separate decision, though all three judges agreed as to the outcome of the case.  Chambers and O’Regan JJ determined that the Waitangi Tribunal had considered all relevant considerations in making its decision on the application for urgent hearings of the two claims at issue and, therefore, that decision was not unlawful.  Baragwanath J makes it clear in his decision that he agrees with the other two judges on this central point.  However, Baragwanath J also goes on to make some detailed comments on connected issues.

In particular, Baragwanath J considers the Crown’s argument that, even if the Tribunal’s decision on urgency had been unlawful, MacKenzie J was wrong to order a re-hearing of the issue because that would involve the consideration of matters that were the subject of a bill before Parliament.  Chambers and O’Regan JJ determine that they need make no comment on this issue because it becomes irrelevant to this case if the Tribunal’s decision is found to be lawful (as the Court so found).  Baragwanath J gives careful consideration to s 6(6) of the Treaty of Waitangi Act 1975.  The relevant subsection states:

Nothing in this section shall confer any jurisdiction on the Tribunal in respect of any Bill that has been introduced into the House of  Representatives…

Baragwanath J addresses authorities as to the privileges of Parliament and the development of the Waitangi Tribunal’s jurisdiction so as to understand the effect of s 6(6) in context.  He also looks to the Interpretation Act 1999 and takes the view that:

Section 6(6) of the Treaty of Waitangi Act does not say it may be used to stop the agreed statutory process.  It does no more than the text states: it concerns freedom of parliamentary speech and prevents the Tribunal from examining a bill; not the conduct that preceded it.

He, therefore, does not agree with the Crown’s argument that allowing the Tribunal to examine conduct that preceded a bill with overlapping content would infringe principles of comity.  Furthermore, Baragwanath J finds: 

It is contrary to settled principles of Crown dealing with indigenous peoples for legislation to be read up against them and their interests.  Parliament has chosen to limit the constraint on the Tribunal’s jurisdiction only to specific interference with its own processes; apart from that the Tribunal is empowered to examine all prior conduct.  There is no reason to make any assumption to the contrary.

Now, this isn’t central to the Court’s decision, but, nonetheless, Baragwanath J provides a useful discussion of the constitutional role of the Tribunal in relation to the Parliament and, in particular, the executive government.

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