Australians should be wary of scare stories comparing the Voice with New Zealand’s Waitangi Tribunal

Australian Senator Jacinta Nampijinpa Price recent claim that the Waitangi tribunal in New Zealand has veto power over parliament was met with surprise in New Zealand, especially by the members of the tribunal themselves. That’s because it’s just wrong.

With the debate over the Voice to Parliament heating up, we can probably expect similar claims to be made ahead of this year’s referendum. But the issue is so important to Australia’s future that such disinformation should not go unchallenged.

From an Australian perspective, New Zealand may appear to be at the forefront of constitutionally recognizing Indigenous votes. But that has certainly not been extended to granting a parliamentary veto to Māori.

The Waitangi Tribunal was originally established as a Commission of Inquiry in 1975 and was given the power only to make recommendations to the government. And so it remains. Only the Crown appoints tribunal members and many are non-Māori.

As with all investigative committees, it is for the current government to make a political decision on whether or not to implement those recommendations.

Senator Jacinta Nampijinpa Price (pictured with Liberal Party leader Peter Dutton) has claimed that the Waitangi tribunal has veto power over parliament.
MONKEY

Deceptive and wrong

Price’s claim echoed a February item and paper issued by the Institute of Public Affairs, aimed at influencing the Voice referendum. Entitled “New Zealand Māori’s voice in parliament and what we can expect from Australia”, it was written by the Institute’s director of the legal rights programme, John Storey.

The paper makes a number of claims: the Waitangi Tribunal has veto power over the power of the New Zealand Parliament to pass certain legislation; the Waitangi Tribunal was established to deal with land claims, but its remit has been extended to all aspects of public order; and the Waitangi tribunal “shows that the vote will create new Indigenous rights”.

Read more: What Australia could learn from New Zealand about Indigenous representation

The last statement is fallacious and the others are dead wrong. The jurisdiction of the Waitangi Tribunal was largely set in stone by the New Zealand Parliament in 1975 when it was established.

Instead of examining land claims, it was initially unable to examine pre-1975 claims. Treaty of Waitangi/te Tiriti o Waitangi was signed).

The tribunal then began hearing land claims. But in its first decade it focused on fisheries, planning issues, the loss of the Māori language, government decisions made at the time, and general issues of public policy.

In honor of the Treaty: New Zealand Prime Minister Chris Hipkins at the 2023 Waitangi Day commemorations.
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Historical grievances

For the past 38 years, the tribunal has focused on the so-called “historical claims to the Treaty”, covering the period from 1840 to 1992. large settlement fishing claims began an era of negotiation and settlement of these claims, quite apart from the tribunal itself.

With most of the major historical claims settled or being negotiated, that aspect of the tribunal’s work is coming to an end. It has returned to hearing claims about social issues and other more contemporary issues.

Read more: Attorney General confirms Voice model is legally sound, will not ‘engage or hinder’ parliament

Rather than expanding its jurisdiction, the tribunal’s powers have steadily diminished over the past few decades. In 1993 it lost the power to make recommendations regarding private land – that is, land not owned by the Crown. In 2008, it lost the power to investigate new historical claims, as the government sought to shut down new claims that could undermine current settlements.

There is one area where the tribunal was given the power to compel the Crown to return land. The Labor government of 1984-1990 pursued a policy of disposing of what were seen as surplus Crown assets. A deal was struck between Māori claimants and the Crown to enable the tribunal to make binding recommendations to return land in very special cases.

This compromise was not made by the tribunal, but by ambiguity in the legislation, which was resolved in favor of the Māori claimants in the Court of Appeal. The ability to return land has almost never been used and is being phased out across the country as treaty arrangements are implemented into law.

Broad political support

Storey cites a number of tribunal reports, which make findings about the Crown’s responsibilities, as if these findings are binding on the Crown or even Parliament. This is not the case. The Waitangi Tribunal is investigating allegations that the Crown has acted contrary to the “principles of the Treaty”.

The Waitangi Tribunal sets out what those principles are, but they are not binding on either the courts or parliament. Having made findings, the tribunal makes recommendations – not to parliament, as Storey suggests, but to the ministers of the Crown. Some recommendations are implemented, others are not.

Read more: Explainer: the meaning of the Treaty of Waitangi

Where there is a dispute between the Crown and Māori, the tribunal has often recommended negotiation rather than making specific recommendations for redress.

floor has referenced elsewhere to the tribunal as a “so-called consultative, now binding, Māori vote to parliament” that has “ordained” certain things. In the longer article, he does admit that the “tribunal cannot determine the exact form of any remedy offered by the government”. But then he falls back on the idea of ​​a “moral veto” – that his status is so elevated that parliament is forced, however unwillingly, to do his bidding.

But not only does the Crown ignore the tribunal’s recommendations as it sees fit, it even refuses to be bound by the tribunal’s expert findings of history when negotiating settlements.

Read more: What is a treaty anyway? What could it mean for indigenous peoples?

The Waitangi Tribunal remains a permanent investigative committee because of broad political support for its work. Nor can it be held solely responsible for increasing Māori assertiveness or political involvement in government, even if this was in any way a bad thing.

There has been a greater social shift in Aotearoa, New Zealand in recent decades. No fiat from the Waitangi Tribunal has eliminated the cultural misappropriation of Māori faces and images – something Storey warns could mean that “dishtowels depicting Uluru/Ayers Rock, or boomerang fridge magnets, could become problematic”.

The Waitangi Tribunal has often done little more than make Māori histories, Māori perspectives and Māori values ​​accessible to a non-Māori majority. It certainly hasn’t had the power to determine where debates on Indigenous issues fall.