Court hears appeal of Waitangi Tribunal summons decision

Lawyers representing two iwi as well as the Māori Women’s Welfare League on Wednesday asked the Court of Appeal to overturn last week’s High Court decision on the Waitangi Tribunal’s decision to summons Children’s Minister Karen Chhour.

The Tribunal is currently investigating the Government’s decision to repeal section 7AA of the Oranga Tamariki Act, which lays out the obligations of the children’s ministry in relation to the Treaty of Waitangi. In early April, the Waitangi Tribunal issued a summons to Chhour when she refused to provide evidence behind the decision to repeal.

Crown Law filed an application for judicial review in the High Court, arguing the Tribunal couldn’t summons a sitting minister – something that has never happened before. In his decision handed down last week, Justice Andru Isac said he couldn’t accept the Crown’s argument that Chhour’s evidence was not needed because the Tribunal had access to other evidence but did agree the summons infringed on the principle of comity.

Comity underpins the separation of powers, requiring the legislative, executive and judicial branches of government to respect one another’s spheres of influence.

Justice Isac determined that the Tribunal had infringed on comity by issuing the summons when the evidence needed from Chhour failed to reach the high bar of being “clearly necessary” for it to undertake its investigation.

“Had I concluded that the lack of evidence would affect the Tribunal’s ability to discharge its statutory functions, I would have dismissed the application for judicial review,” the judge said.

“It goes without saying, then, that the power of the Tribunal to summons a serving minister to attend and give evidence under compulsion, if clearly necessary, is very much alive.”

Two iwi – Ngāti Pikiao and Waikato-Tainui – filed appeals, which were heard jointly on Wednesday by the Court of Appeal. Solicitor-General Una Jagose, speaking for Chhour, will conclude her arguments on Thursday.

Barrister Matthew Smith, representing Ngāti Pikiao hapū Ngāti Te Rangiunuora, argued that the principle of comity was more convention than hard-edged law. The separation of powers, which allows for the judiciary to summons members of the executive, for example, supersedes comity in the hierarchy of legal norms.

Smith also cited case law arising from the Covid-19 Inquiry in the United Kingdom which sought WhatsApp messages between key ministers, including then-prime minister Boris Johnson, from the early days of the pandemic.

“I think a court, if it has power to do so, should be very slow to restrain a commission from pursuing a particular line of questioning and should not do so unless it is satisfied, in effect, that the commission is going off on a frolic of its own,” judges ruled in that case.

In other words, Smith said, the standard for whether the Tribunal can infringe on comity by summonsing a serving minister shouldn’t be that it is “necessary” for the investigation but merely that it is relevant – that the Tribunal is not just “going off on a frolic of its own”.

Jamie Ferguson, representing Waikato Tainui, advanced this argument as well. He said the Waitangi Tribunal plays a unique role in New Zealand’s constitutional fabric. Comity was already enforced by the Tribunal being unable to consider legislation while it is actively being considered in Parliament and separation of powers was protected by the Tribunal having only recommendatory powers. Beyond that, it should be able to undertake its investigations, he argued.

The Māori Women’s Welfare League was represented by Bernadette Arapere, who said it was important to refocus on the tamariki Māori who would be affected by the outcome in this case. On the substantive matters, she argued that Chhour could provide evidence that officials couldn’t, as it was ultimately she (and Cabinet) who made the decision.

Jagose began her arguments on Wednesday, saying Chhour wouldn’t be able to answer many of the questions the Tribunal might ask of her because she was bound by Cabinet confidentiality. Moreover, it was Cabinet that was the decision-maker, not Chhour herself.

Jagose will conclude on Thursday. If the court rules in favour of the appellants, the Tribunal will need to issue a new summons as the one that sparked the legal case was time-limited and has now expired.