Friday, July 13, 2007

Conflicts of interest and the Waitangi Tribunal

Last month, Parliament passed the Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill through its first reading and sent it to select committee. The bill would amend the Treaty of Waitangi Act 1975 to remove the ability for a serving High Court judge or the Chief Judge of the Maori Land Court to serve as chair of the Waitangi Tribunal. It would also remove the ability of the chair of the Tribunal to temporarily appoint judges of the Maori Land Court to chair inquiries. The justification is that there is an inherant conflict of interest - that a serving judge may have already presided over a case related to a claim, or may be called upon to do so in future. The bill's sponsor, Pita Parone, does not suggest this has ever happened. But he's sufficiently concerned about it that he wants restrict those roles to retired judges.

But is this actually necessary? I wouldn't think so. The judiciary already has established rules about such conflicts (which can be boiled down to a single word: "don't"), and I'd expect them to come into play regarding the Waitangi Tribunal. If a judge ends up potentially having to rule on a matter they have dealt with as part of a Waitangi Tribunal inquiry, I'd expect them to recuse themselves. And likewise if the chair of the Tribunal ends up having to investigate a recent Treaty breach which they have ruled on in court (the ability to appoint temporary chairs helps significantly in this case). Against this is the expertise brought to the Tribunal by Maori Land Court judges - expertise which is vital to the Tribunal's work. While retired judges would bring similar expertise, it would be less current, and their judicial philosophy and understanding of the law would be forged in a bygone, and more institutionally racist, era.

So, not a good idea, then. Instead, it seems like just another effort by the dying generation represented by NZ First to roll back the enormous changes in our understanding of the Treaty and the law, by cuckooing their own representatives into the Waitangi Tribunal in the place of the (much younger) present ones. And yet, there was one point raised in the debate which may make some change desirable: National's Chris Finlayson pointed out that Tribunal sittings are often determined by when a Maori Land Court judge is available to chair them, and that this both slows the work of the Tribunal and imposes a punishing burden on participants when sittings occur. Changes to the Tribunal's composition may allow it to sit more regularly, or even full-time, and thus speed its work. And hopefully the select committee wil look at the issue.

Finally, I should point out that the Maori Party have made a number of claims about the purpose of the bill which suggest that they have never bothered to read it. Given that this is an area central to their party, that doesn't reflect too well on them.