Rapua ngā tuhinga ruku tātari

On 13 September 2024, the Waitangi Tribunal released The Takutai Moana Act 2011 Urgent Inquiry Stage 1 Report (Wai 3400). The inquiry was granted urgency in the Waitangi Tribunal’s inquiry programme. The hearing was held in August 2024.

The Tribunal panel comprised Judge Miharo Armstrong (presiding), Ron Crosby, Professor Rawinia Higgins, and Tā Pou Temara. The report was the first report in a two-stage inquiry. This first stage considered the Treaty compliance of the policy development process that the Government followed in seeking to amend the Takutai Moana Act 2011, along with the proposed amendments, and whether these caused prejudice to Māori. The second stage will address the alleged mismanagement of funding for applications for customary marine title under the Act.

Overall, the Tribunal found that the Crown’s actions are such a gross breach of the Treaty that it is an illegitimate exercise of kāwanatanga. The Tribunal cautioned the Crown that, on the strength of the evidence it received, to proceed now on its current course would significantly endanger the Māori–Crown relationship.

To give effect to Treaty principles, the Tribunal recommended that:

• the Crown halt its current efforts to amend the Takutai Moana Act;
• the Crown make a genuine effort for meaningful engagement with Māori; and
• the focus of this engagement should be on the perceived issues of permissions for resource consents, rather than interrupting the process of awarding customary marine title.

The Tribunal emphasised that the recommendations should be implemented to restore a fair and reasonable balance between Māori interests and those of the public in te takutai moana.

In May 2024, the Waitangi Tribunal granted an application for an urgent inquiry into claims concerning the Crown’s proposed policy changes to the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021. The Tribunal confirmed that the inquiry would focus on whether the actions and policies of Government in altering the 2021 amendment Act were in breach of the Treaty of Waitangi and its principles.

The panel for the urgent inquiry consisted of Judge Sarah Reeves (officer), Basil Morrison CNZM JP, and Kevin Prime, and the inquiry was conducted on the papers with no in-person hearing. The Tribunal’s report was released on 17 May 2024.

The Tribunal found that the Crown breached the principle of partnership (the duty to consult and act reasonably and in good faith and the duty of active protection) by prioritising commitments made in the 2023 coalition agreement in the development of Government policy without discussion or consultation with its Treaty partners. The Crown also failed to adequately inform itself of its Treaty obligations and to conduct adequate Treaty analysis during the policy development process.

In addition, the Tribunal found that the Crown failed to adequately protect Māori rights and interests by prioritising the coalition agreement over the desires and actions of Māori for dedicated local political representation. Combined with breaches of the principles of equity, mutual benefit, and options, the Tribunal found that these Treaty breaches caused significant prejudice to Māori.

The Tribunal recommended that the Crown stop the amendment process to allow proper consultation between the Treaty partners with a view to agreeing how Māori can exercise their tino rangatiratanga to determine dedicated representation at the local level. The Tribunal drew the Government’s attention to the existing provisions in the Local Electoral Act 2001 for representation reviews that would better enable councils to seek public views on all wards and constituencies at the same time, including Māori wards or constituencies.

On 29 April 2025, The Tribunal issued an interim report, The Oranga Tamariki (Section 7AA) Urgent Inquiry Report, in pre-publication form.

The report concerns claims submitted to the Tribunal under urgency regarding the Crown’s policy to repeal section 7AA of the Oranga Tamariki Act 1989. Section 7AA imposes specific duties on the chief executive of Oranga Tamariki so as to provide a practical commitment to the principles of the Treaty of Waitangi

A key policy objective of section 7AA was to reduce the disproportionate number of Māori entering into care and to improve outcomes for those tamariki already in care. Under section 7AA, iwi or Māori organisations may enter into strategic partnerships with the chief executive. There are 10 strategic partnership agreements under section 7AA currently in place, as well as nine relationships with post-settlement governance entities, some of whom are also strategic partners.

The claimants and interested parties argued that the repeal of section 7AA and the absence of consultation with Māori and the Crown’s strategic partners breached the Crown’s Treaty duties.

Because of its interim status, the report contains no findings or recommendations but it raises three matters for the government’s consideration:

• the Tribunal’s concern that the government’s singular focus on the implementation of a commitment made in one of the coalition agreements has caused it to disregard its obligations under the Treaty;
• the Tribunal’s concern that the rushed repeal of section 7AA will cause actual harm; and
• the availability of a more principled way forward under section 448B of the Act.

The panel comprised Judge Michael Doogan (presiding), Kim Ngarimu, and Tā William Te Rangiua (Pou) Temara.

The Waitangi Tribunal has released The Oranga Tamariki (Section 7AA) Urgent Inquiry 10 May 2024 Report in pre-publication format.