- Recent appointments to the Waitangi Tribunal have courted controversy, seen by some as challenging the tribunal from within.
- Official documents reveal that the names of the controversial candidates emerged following talks with coalition partners. One of Māori Development Minister Tama Potaka’s preferred candidates for reappointment was also later sidelined.
- Some appointments and their timing went against the advice of Te Puni Kōkiri and the tribunal’s Chief Judge Dr Caren Fox, with months of delays impacting the tribunal’s work.
Māori lawyer Prue Kapua didn’t know she was pencilled in to be reappointed to the Waitangi Tribunal in November last year, but by December had fallen out of favour following consultation with coalition partners.
“It’s a bit of a surprise,” she said when the Herald informed her she was on an earlier list of Māori Development Minister Tama Potaka’s preferred candidates, revealed in official briefings and draft letters from Te Puni Kōkiri (TPK).
But her name was not among the five reappointed members and eight new members that Potaka announced in January, so her term finished.
“It’s disappointing from my point of view because I really enjoy the tribunal work. With the experience I had, I would have been able to make a contribution,” she said.
“But it’s got to go through the Cabinet Appointments [and Honours] Committee, and there are coalition partners in there. Presumably somewhere between Mr Potaka’s view and it being finalised through the committee, there was a change.”
It’s one of several changes – seemingly instigated by coalition partners – revealed in 200 pages of official documents relating to two rounds of Waitangi Tribunal appointments.
Other revelations include months of potentially disruptive delays, last-minute additions, and the Government seeming to shun official advice, including from Chief Judge Caren Fox.
Controversial appointments included Act leader Richard Prebble – who has since quit – which caused a stir due to Act’s plan to rewrite the Treaty principles into law, and a raft of other Māori-related policies.
Further controversy followed in January with the appointment of conservative commentator Philip Crump, lawyer and founding editor of the now defunct Newstalk ZB Plus, and Manawatu councillor Grant Hadfield, who has previously opposed the introduction of a Māori ward. Iwi wrote an open letter to MPs critical of Hadfield’s appointment.
Hadfield and former NZ First Minister Ron Mark (also appointed in January) were late additions to the mix, according to TPK briefings in December. Their names on the list of preferred candidates also followed Potaka consulting coalition partners.
Potaka has described them as adding “the right balance of skills”, but Te Pāti Māori co-leader Debbie Ngarewa-Packer called some of the appointments “a whitewash” of “pale, stale males” at the expense of members willing to be reappointed.
Among them was Kapua, who couldn’t think of anything she did between November and January to warrant her removal from the list of preferred candidates.
She did note, however, as president of Māori Women’s Welfare League, having “differences of opinion” with NZ First Minister Shane Jones; in 2020, she called some of Jones’ comments at Rātana Pā “misogynistic and ignorant”.
“But that goes back some years,” she said. “We will never know what goes on in those kinds of [coalition] discussions. It’s politics, at the end of the day.”
Jones is on the Cabinet committee signing off the tribunal appointments. All the content in several committee documents has been redacted. When the Herald put Kapua’s comments to him, Jones said he had no comment.
He has previously said the tribunal is overstepping its brief, while Act leader David Seymour has questioned the need for a tribunal at all. The Government has the tribunal in its sights, with the National-NZ First agreement committing to refocus the tribunal’s ambit back to its legislative intent.
Meanwhile, the tribunal has hardly been a champion for the Government’s direction, with several scathing reports on the Treaty Principles Bill, changes to Oranga Tamariki, and the disestablishment of Te Aka Whai Ora – the Māori Health Authority.
So are some of the appointments, pushed by coalition partners, a challenge to the tribunal’s work from within?
“Prime Minister Christopher Luxon and Minister Tama Potaka have allowed the Waitangi Tribunal to be undermined with appointments that fail to uphold the integrity of the institution,”, said Green Party public service spokesman Francisco Hernandez.
“We know that there are elements of this Government that want to see the Tribunal defunded and completely disempowered. We will fight this every step of the way.”
Hernandez likened what had happened to the appointment of Stephen Rainbow as chief Human Rights Commissioner, despite accusations of being transphobic. This prompted an investigation by his then-employer Auckland Transport, which cleared him.
Invited to respond, Potaka said he had nothing to add to his statement about Prebble’s resignation.
“The Waitangi Tribunal achieves its mahi thanks to the commitment of a diverse range of members providing extensive experience and knowledge. Mr Prebble has made the decision to resign of his own accord – I respect his choice and wish him well.
“My focus is on moving swiftly to complete the appointment of a new member to minimise any disruption to the tribunal.”
Kapua declined to share her view of the new appointees because it “wasn’t really that relevant”.
But she didn’t understand the importance of the Government’s refocusing the tribunal, given how the Government is free to ignore its recommendations.
“It’s not as if the tribunal has an enormous amount of power that makes it so threatening.
“The whole beat up, if you like, about the tribunal ‘overstepping’, or ‘going beyond’ ... I mean, beyond what? Beyond something where it can’t make [a binding] decision?
“Do we really want to have some of these issues being fought through the courts?”
Recommendations not followed
Tribunal members are appointed by the Governor-General on the recommendation of the Māori Development Minister, who by law “must have regard to the relationship between the two parties to the Treaty of Waitangi, and to a candidate’s person attributes and relevant knowledge and experience”.
The minister must also consult the Justice Minister, though TPK added that consulting coalition partners was in line with official guidelines.
Prebble’s appointment, announced in October, followed discussions about reappointing four members before they came to the end of their three-year term in May last year.
Chief Judge Fox and TPK had both recommended reappointing all of them – Kevin Prime, Derek Fox, Dr Hana O’Regan, and Dr Grant Phillipson – and doing so by the end of May to avoid disrupting the tribunal’s work; members whose terms have ended can continue work they were already doing on existing claims, but can’t work on new claims.
“Not appointing members by 30 May 2024 might impact the Tribunal’s ability to take on new inquiries,” said a TPK briefing to Potaka in May.
“To mitigate this risk, we recommend that the appointments are finalised before 30 May when the current members' terms end.”
There was a reputational risk from not reappointing members, the briefing said, which “may be viewed negatively by the public and other key stakeholders”. A further “relationship risk” was identified, but redacted under the Official Information Act clause that protects ministers and employees “from improper pressure or harassment”.
The end of May came and went, however, with no announcements. The tribunal was of the understanding that none of the four would be reappointed.
On May 31, Potaka wrote to ministerial and coalition colleagues seeking further nominations.
‘Somewhere in all that chaos’
Prebble’s and Crump’s names emerged as candidates in official briefings in August, though they were not among the names the Chief Judge had provided to Potaka as potential new members. They were added following talks with coalition partners.
Prebble and Ken Williamson, an insurance specialist and philanthropist, were announced as new members in October. One of the four members thought to have missed out on reappointment, Kevin Prime, was announced as reappointed.
That was a surprise to tribunal members, Kapua said.
“It wasn’t until the announcement in October that we realised Kevin had been reappointed. At that stage, it was still understood that the other three had not been reappointed. Certainly that’s how it was reflected on the tribunal’s website.
“So somewhere in all of that chaos, changes were made.”
Two of the other three, O’Regan and Derek Fox, were then announced as reappointments in January this year, almost a full year after the Chief Judge had informed Potaka of their willingness for another term, several months after being recommended for reappointment, and more than six months after their warrants had expired.
Overall six out of 13 members available for reappointment over two rounds were given another term.
Among them was Professor Sir Pou Temara, who was not on Potaka’s list of preferred candidates in November, but was announced in January as starting his sixth term.
He appears to have been swapped for Kapua, who was not reappointed despite being on the November list.
‘Pretty disruptive’
It’s unclear how much these delays and changes hindered the tribunal’s work, but Kapua said it had an impact.
“It’s not really an issue about the individual people. It is an issue about the processes that are undertaken, and how you actually keep the tribunal functioning effectively,” she said.
“This process hasn’t been the best for that, really. It can’t have been easy for Derek [Fox] or for Hanna [O’Regan] last year, to find you’re not being reappointed, and then several months later being reappointed.
“It’s pretty disruptive, for sure.”
Among those who weren’t reappointed were professors Rawinia Higgins, Tom Roa and Linda Tuhiwai Smith.
“It is pretty disappointing to lose so many people who have had some experience over quite a period of time. It does tend to affect the knowledge base within the tribunal.”
Kapua hoped that the tribunal had established such solid credentials that Māori wishing to lodge a claim will continue to do so, and not have their confidence shaken.
“We will continue to adjust, and continue to do the work that we’re there to do, until the expiration of each of our inquiries.
“And then we’ll disappear into the sunset, I guess.”
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Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.
