Minister for Children v Waitangi Tribunal - [2024] NZHC 931

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-199

[2024] NZHC 931

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review

BETWEEN

MINISTER FOR CHILDREN

Applicant

AND

THE WAITANGI TRIBUNAL

First Respondent

AND

MĀORI WOMENS WELFARE LEAGUE, VERNA GATE, COLLEEN SKERRETT- WHITE, TIMITEPO HOHEPA AND TE ARIKI DEREK MOREHU

Second Respondents

Hearing: 22 April 2024

Counsel:

U R Jagose KC, J N E Varuhas and K E E Whiting for Applicant M K Mahuika and W I Gucake for Respondent

M Smith and H Z Yang for Ms Skerrett-White, Timitepo Hohepa and Te Ariki Derek Morehu, the Hapū of Ngāti Te Rangiunuora and Ngāti Pikiao

B R Arapere, A E Gordon and A L E Chesnutt for Māori Womens Welfare League

J P Ferguson and R K Douglas for Waikato-Tainui J P Ferguson and C P Terei for Ngāti Hine

T H Bennion for Verna Gate

Judgment:

24 April 2024

JUDGMENT OF ISAC J

[Application for judicial review]

MINISTER FOR CHILDREN v THE WAITANGI TRIBUNAL & ORS [2024] NZHC 931 [24 April 2024]

Introduction

[1] On 1 July 2019, s 7AA was inserted into the Oranga Tamariki Act 1986.1 The section was introduced by the previous National Government in the Children, Young Persons, and Their Families Act 2017.2 Section 7AA imposes a number of duties on the Chief Executive of Oranga Tamariki in order to “recognise and provide a practical commitment to the principles of the Treaty of Waitangi (te Tiriti o Waitangi)”.3 The duties require Oranga Tamariki to develop and deliver policies, practices, and services to ensure they positively improve the well-being of tamariki and rangatahi Māori and their whānau, hapū, and iwi. This includes the development of strategic partnerships with iwi and Māori organisations to the same ends.4 It also places an obligation on the Chief Executive to report on the progress being made to improve outcomes for tamariki Māori and their whānau, hapū, and iwi.

[2] Following the general election on 27 November 2023, a new government was sworn in consisting of the New Zealand National Party, New Zealand First, and ACT New Zealand. Under the coalition agreement between National and ACT, the Coalition Government resolved to repeal s 7AA.5 In response, on 20 December 2023, Ngāti Pukenga and Ngā Potiki filed a statement of claim in the Waitangi Tribunal seeking a recommendation that the repeal would breach the Treaty principles of active protection and equality.6 Other parties filed similar claims and a number of parties joined as interested parties.7 The Tribunal has granted urgency, given the proposed repeal will take place next month.

[3] In this proceeding the Minister for Children, the Hon Karen Chhour, seeks judicial review of a summons issued by the Waitangi Tribunal, in the context of its urgent inquiry, requiring her to attend and give evidence on a number of questions at a hearing on 26 April 2024.

1 Pursuant to the Children, Young Persons,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 931
Decision Date: 24 April 2024

CaseChat Overview and Summary

The Minister for Children applied for judicial review of a summons issued by the Waitangi Tribunal requiring her to attend and give evidence at a hearing. The Tribunal had granted an application for urgency in relation to its inquiry into whether the proposed repeal of s 7AA of the Oranga Tamariki Act 1989 would breach the Treaty of Waitangi. The Tribunal had issued the summons to the Minister in light of the Cabinet paper and accompanying Regulatory Impact Statement, which highlighted different views on the merits and consequences of the repeal. The Minister argued the summons was unlawful because the evidence sought was not relevant in light of the material already provided to the Tribunal by the Crown and because it infringed the principle of comity between the judicial and executive branches of government. The second respondents, parties involved in the Tribunal’s inquiry, argued that the summons was valid. The court considered whether the evidence required by the summons was relevant and whether the summons infringed the principle of comity. The court found that the summons was not unlawful because it required the production of an affidavit, as the Tribunal had broad powers concerning processes and evidence gathering. The court also found that the summons was not unlawful because it infringed the principle of comity. The court held that comity is a reciprocal obligation, but that the principle of comity does not control the exercise of the Tribunal’s jurisdiction. The court concluded that the Tribunal’s focus on the Minister as the primary mind behind the policy was misplaced, and that the requirements of comity were heightened in this case due to the proactive disclosure by the Crown of a significant body of relevant material. The court set aside the summons issued by the Tribunal.

Orders