Former Act leader Richard Prebble isn’t the first former politician to be appointed to the Waitangi Tribunal over the years but he is almost certainly the most controversial.
However, controversy is likely to remain a semi-permanent state for the tribunal in the foreseeable future.
Not only will it undergo a review of its role, aimed at reducing the breadth of its inquiries – a New Zealand First initiative in the coalition agreement – but the make-up of its membership could be about to change.
The terms of more than half of the 20 tribunal members expire in the next couple of months.
If a purge is unlikely at this stage, a reduction in members or a major change in membership could be on the cards. The Prebble appointment may have been the warm-up.
Māori Development Minister Tama Potaka – after his statutory consultation with Justice Minister Paul Goldsmith – appointed Prebble and Ken Williamson, an insurance specialist and philanthropist who has been a lifelong supporter of St John.
The previous appointment of a new member, Herewini Te Koha, was made by Potaka’s predecessor, Willie Jackson, in 2022. Jackson said at the time that 11 sitting members had been reappointed for a further three years.
Their time is up in December and those members are Dr Robyn Anderson, Kim Ngarimu, Professor Rawinia Higgins, Professor Sir Pou Temara, Professor Linda Smith, Professor Tom Roa, Prue Kapua, Ron Crosby, Dr Ruakere Hond, Tania Simpson and Dr Monty Soutar.
It is almost unheard of to have so many members up for reappointment at the same time, although it is understood that Te Koha and Crosby will not be seeking reappointment.
Membership of the current tribunal leans towards highly educated people. Half have either a PhD or professorship or both. It has had a mix of experts in tikanga and te reo, history, law, politics, business, advocacy and community service over its 49 years.
Former politicians have included National’s Sir Doug Kidd, a former Māori Affairs Minister and Speaker of Parliament, who served from 2004 to 2017; Paul Swain, a former Labour minister who became a Crown negotiator after politics; and Dr Michael Bassett, a former Labour minister and historian who served from 1994 to 2004.
At least two former politicians served on the tribunal before entering politics: Dame Georgina te Heuheu and Sir Pita Sharples.
Both Potaka and Goldsmith worked at the tribunal in 1995 and 1996, Goldsmith as a young history graduate and Potaka as a law student teaching its staff te reo Māori. Goldsmith, who studied under Judith Binney at Auckland University, wrote a tribunal paper on the Wairarapa district as part of 15 area reports under what was called the Rangahaua Whānui Project.
Also working there at about the same time were Grant Phillipson, the highly respected former chief historian of the tribunal who was not reappointed by Potaka and Goldsmith last week, and historians Paul Hamer and Robyn Anderson, who remain on the tribunal.
Current New Zealand First MP Shane Jones worked as a translator for the tribunal on several occasions when it sat in the north in the 1980s, and Winston Peters filed claim No 343 with it in 1993 on behalf of the Ngāti Wai Trust Board – after he had been sacked as Minister of Māori Affairs and the minister responsible for the tribunal.
A former minister in the Muldoon cabinet, Dr Ian Shearer, was an administrator at the tribunal from 1994 to 2005.
Prebble’s appointment has been controversial not because of anything he has done in the 20 years since stepping down as Act Party leader but because of the upset his party is causing now with its plan to rewrite the Treaty principles into law, the refusal of an Act minister to be summonsed to give evidence to the tribunal and a raft of other Māori-related policies.
The Treaty principles have already been defined by the tribunal in decisions over nearly 50 years, as is their statutory duty.
But for many, Prebble’s appointment represents a challenge to the tribunal from within.
The unhappiness is exacerbated by the failure to reappoint newish members Dr Hana O’Regan and former broadcaster Derek Fox, along with Phillipson, who had been a member since 2011.
Prebble’s rabble-rousing days are over. It is highly unlikely he will use his duties as a tribunal member as a platform from which to campaign.
However, he is likely to ask difficult questions and challenge claimants’ lawyers to justify their assumptions. He might even follow the example of former members Michael Bassett and John Kneebone in the 1990s and 2000s and offer a dissenting opinion to some tribunal reports. That would not be the end of the world for a tribunal that only makes recommendations.
Prebble’s presence itself will be a small change but it may signal big changes ahead.
The question is how quickly and how drastic those changes will be.
Reform is not a novel notion. In 2016, then Chief Justice Sian Elias gave an interview to Te Manutukutuku, the tribunal’s irregular newsletter.
She saw it taking a smaller role in the future and the courts taking a greater role in Treaty claims.
“Maybe it can return a bit more to a smaller body, and maybe a bit less lawyer-led, which I think it had to be when it was the necessary background to the settlement process and the historical claims had to be processed,” she said.
“But in a way, I would like to see it shift back a little bit more. It is probably the case that there is always going to be the need for some creative thinking to help governments address their obligations under the Treaty. So I think there is a role for the tribunal.
“But I would hope that some of the matters that have had to go to the tribunal will now be sufficiently recognised as claims of right that they can be addressed by the courts.”
Elias’ view is shared by others including former Attorney-General Chris Finlayson, who advocated in his book Te Kupu Taurangi that the courts should take the leading role in hearing claims about contemporary breaches of the Treaty.
The tribunal is entitled to up to 20 members, plus the chair, Judge Caren Fox, who is also the Chief Judge of the Māori Land Court, but it can be fewer.
When it began in the 1970s, its membership was seven. It expanded in 1988 to up to 16 plus a chair, and again in 2008 to up to 20.
It has finished most historical claims and now concentrates on often contentious areas in so-called kaupapa inquiries, such as New Zealand’s constitutional arrangements, health policies and outcomes for Māori and proposed laws such as the rewrite of the Treaty principles.
Members are not usually full-time and their pay is calculated by the Remuneration Authority for time worked. They are assigned inquiries to work on in smaller groups and former members continue on their hearings until their conclusion.
The current Waitangi Tribunal members are:
Ngāti Porou. Appointed chair of the tribunal in 2023 for a five-year term and Chief Judge of the Māori Land Court after the retirement of Wilson Isaac. First appointed to the Māori Land Court in 2000. Has lectured in law at Victoria and Waikato universities. Specialised in international human rights, awarded a Harkness Fellowship in 1991 and was awarded the NZ Human Rights Commission’s 2000 Millennium Medal.
First appointed in 2011 by Pita Sharples. An author and lawyer who specialised in resource management and Waitangi Tribunal claims. Has spent recent years writing books on New Zealand, Māori and military history, including a book on the SAS.
Tūhoe. First appointed in 2013 by Pita Sharples. A historian specialising in Māori language revitalisation. Deputy vice-chancellor Māori at Victoria University, on the board of the Reserve Bank and chair of Te Taura Whiri, the Māori Language Commission.
Te Arawa. First appointed in 2018 by Nanaia Mahuta. A lawyer and former president of the Māori Women’s Welfare League. Has been a member of the Refugee Status Appeals Authority, deputy chair of the Medical Practitioners’ Disciplinary Tribunal and a director of First Health.
First appointed in 2008 by Parekura Horomia. Originally a farmer, he became a civic leader as the inaugural mayor of Hauraki District Council for 15 years, served on Waikato Regional Council and was president of Local Government NZ from 2000 to 2008. Honorary consul of Uganda in New Zealand.
Ngāti Hine, Ngāti Whātua, Tainui, Welsh. First appointed in 2021 by Willie Jackson. A much awarded and recognised conservationist and former commissioner of the Environment Court. Served on ministerial groups related to conservation, health, forestry and Crown research institutes. Has farmed beef, grown trees and kept bees at Mōtatau, Northland.
Ngāti Maniapoto, Waikato-Tainui. First appointed in 2016 by Te Ururoa Flavell. Professor in the faculty of Māori and Indigenous Studies at the University of Waikato. An expert in translation between te reo Māori and English and in oral history of the Kīngitanga, Waikato-Tainui and Ngāti Maniapoto.
Tainui, Ngāpuhi, Ngāi Tahu. First appointed to the tribunal in 2008 by Pita Sharples. A professional director, with spells on the boards of Auckland International Airport, Meridian Energy and Tainui Group Holdings. Deputy chair of the Waitangi National Trust board. Has a masters in Mātauranga Māori from Te Wānanga of Raukawa.
Ngāti Awa, Ngāti Porou. First appointed in 2016 by Te Ururoa Flavell. A Distinguished Professor at Te Whare Wānanga o Awanuiārangi and held senior academic posts at Auckland and Waikato universities. Specialised in decolonising research methodologies, indigenous education and kaupapa Māori.
Ngāti Porou, Ngāti Awa, Ngāi Tai, Ngāti Kahungunu. First appointed in 2002 by Parekura Horomia. Historian and author, writing a historical series called Kawai, which begins in pre-European times. Specialises in military history and has written books on 28 (Māori) Battalion in World War II and Māori in World War I. Has been a senior historian at the Ministry of Arts, Culture and Heritage, a Massey University lecturer and a soldier.
Tūhoe. First appointed in 2008 by Parekura Horomia. Professor of Māori Philosophy at Te Whare Wānanga o Awanuiārangi. An authority on Māori customary practice and whaikōrero. Former professor in te reo and tikanga at Waikato University and former Victoria University lecturer. A former director of Te Panekiretanga o Te Reo, the Institute of Excellence in the Māori Language.
Appointed in 2022 by Willie Jackson. A former chief executive of Te Runanganui o Ngāti Porou and held senior jobs in the public service with Te Puni Kōkiri, the Office of Treaty Settlements and Te Māngai Pāho. This year became a deputy secretary at Corrections and won’t be available for reappointment when his term finishes in December.
Appointed in 2023 by Willie Jackson. A former law lecturer at Auckland University. Has degrees in history, law and theology and was a Rhodes Scholar at Oxford. Has previously provided independent research for tribunal reports and has worked with hapū and iwi claimants. An ordained Anglican priest.
First appointed in 2020 by Nanaia Mahuta. Professor of law and chair of intellectual property international trade law at Victoria University. Advised tribunal on flora and fauna (Wai 262) claim. From 2008 to 2020 was chair of the Copyright Tribunal. Specialises in intellectual property and protection of indigenous knowledge. A fellow of the Royal Society of NZ.
Appointed in 2004 by Parekura Horomia. A historian who previously worked on projects for the tribunal and Crown Forestry Rental Trust and worked for Te Papa as head of the history and Pacific cultures department.
First appointed in 2020 by Nanaia Mahuta. A historian who worked for the tribunal from 1993 to 2004 and then from 2008 to 2017. He had a special interest in Māori living in Australia. Had a leading role in writing the flora and fauna report and the report of the Paparahi o te Raki (Northland) inquiry. From 2017 to 2021 was employed by Corrections as principal adviser in the Māori strategies and partnership (Rautaki Māori) team.
Taranaki and Te Atiawa. First appointed in 2018 by Nanaia Mahuta. A well-known te reo advocate. As a member of the Parihaka community, played a leading role in the reconciliation between Parihaka and the Crown.
Ngāti Porou. First appointed in 2018 by Nanaia Mahuta. A consultant and professional director with stints on the Medical Council, Evolution Healthcare and Te Pukenga. Has also been a senior public servant at Te Puni Kōkiri and Ministry for Women and a former director of the Waitangi Tribunal.
The tribunal has had some long-serving members in the past, including Sir Graham Latimer, Bishop Manuhuia Bennett, Professor Sir Hugh Kāwharu, Professor Keith Sorrenson, Professor Gordon Orr, Joanne Morris, Keita Walker, Sir John Kneebone, Sir John Turei, Professor Wharehuia Milroy, Dame Evelyn Stokes and most recently Dr Ann Parsonson.
Among its members were lawyers Paul Temm, who went on to be a judge, Pamela Ringwood, Tim Castle, Nicholas Davidson, David Cochrane, Hepora Young, Mary Boyd, Sir John Ingram, Eramina Manuel, Dame Areta Koopu, Rangitihi Tahuparae, Dr Ranginui Walker, Sir Hiri Moko Mead, Aroha Harris, Erima Henare, Tureiti Moxon, Gloria Herbert, Joseph Northover, Dame Margaret Bazley, Sir John Clarke, Sir Tamati Reedy, Dame August Wallace after she retired as a judge, Bill Wilson before and after he became a judge, leading historians Angela Ballara, Judith Binney and Richard Hill, Kihi Ngatai, Roger Maaka, Brian Corban, John Baird and Kaa Williams.
Kenneth Gillanders-Scott was the first chairman of the tribunal. Sir Edward Taihakurei Durie became chairman in 1981, Sir Joe Williams in 2004, Judge Wilson Isaac in 2009 and Judge Caren Fox in 2023. All were Chief Judge of the Māori Land Court at the time of their appointment.
Audrey Young is the New Zealand Herald’s senior political correspondent. She was named Political Journalist of the Year at the Voyager Media Awards in 2023, 2020 and 2018.
Expectations tempered around return to surplus in 2027/28.