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Court of Appeal overturns High Court decision on Waitangi Tribunal Karen Chhour summons

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Children’s Minister Karen Chhour. Photo / Mark Mitchell

A group of iwi representatives has been successful in challenging a court decision that set aside a summons to the Children’s Minister to appear in front of the Waitangi Tribunal.

In a decision released today, the Court of Appeal has overruled the High Court, which had earlier ruled that the minister, Karen Chhour, did not have to give evidence before the tribunal.

Today’s decision is the latest development in the legal battle over whether the tribunal was able to summons the minister before its hearing into plans to remove Oranga Tamariki’s Treaty of Waitangi obligations – which were part of the Act party’s coalition deal with National.

In an unprecedented request last month, the tribunal issued a summons for Chhour to give evidence and answer questions before an urgent inquiry about the Government’s decision to repeal section 7AA of the Oranga Tamariki Act.

That section requires the agency to have regard to its Treaty obligations by ensuring it takes into account the whakapapa of Māori children and reduces disparities for tamariki Māori.

However, Crown lawyers successfully challenged the summons in the High Court. The High Court found Chhour could not be compelled to appear before the tribunal, with Justice Andru Isac granting the Crown’s application for judicial review.

In his ruling, Justice Isac noted the mana of the tribunal and the importance of its work was not diminished by his decision.

An appeal was immediately lodged, which has now been successful.

The report following the tribunal’s Oranga Tamariki (Section 7AA) Urgent Inquiry was released last week. It found the proposed repeal would cause harm to vulnerable children and that there were clear breaches of the Treaty of Waitangi.

The tribunal said there were clear breaches of the guarantee to Māori of self-determination and the Treaty principles of partnership and active protection.

It also found prejudice would arise from the rushed and arbitrary repeal of the section of the act.

Chhour had said the repeal of 7AA “has no effect on the need for Oranga Tamariki to keep children in state care safe”.

“The repeal of section 7AA does not prevent the consideration of the cultural wellbeing of children in state care, and existing partnerships between Oranga Tamariki and iwi and Māori organisations will continue.”

Labour: “Callous” bill should be stopped

The bill repealing Section 7AA of the Oranga Tamariki Act 1989 was introduced to the House today. Labour described it as “callous” and urged the National Party to stop it.

“The Government’s refusal to heed the tribunal’s warning and instead lunge head-first into repealing Section 7AA may mean harmful ramifications for Māori children,” said Labour’s acting spokeswoman for children, Carmel Sepuloni.

“National need to do the right thing and step in to stop the repeal of Section 7AA. They cannot allow Act to continue running rampant and belittling both the mana of the Waitangi Tribunal and the rights of tamariki Māori.”

Act: Tribunal has gone “beyond its brief”

Act’s justice spokesman, Todd Stephenson, said the Waitangi Tribunal had become “increasingly activist” and its actions exemplified why Act was introducing a Treaty Principles Bill.

“It’s tried to become a source of authority in its own right. The tribunal appears to regard itself as a parallel Government that can intervene in the elected Government’s policymaking process.

“We also look forward to the delivery of the coalition’s commitment to amend the Waitangi Tribunal legislation to refocus the scope, purpose, and nature of its inquiries back to the original intent of that legislation.”

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