November 2015 Māori Law Review

Waitangi Tribunal procedure – urgent inquiries – flag referenda

Applications for urgent hearings concerning the Crown’s decision to review and possibly change the New Zealand flag

Waitangi Tribunal (2015, Wai 2534, #2.5.0003)

9 September 2015

The Waitangi Tribunal declined an urgent inquiry into claims about decisions to review and possibly change the New Zealand flag.

Download Applications for urgent hearings concerning the Crown’s decision to review and possibly change the New Zealand flag (668 KB PDF).

Overview and result

Waitangi Tribunal procedure - urgent inquiries - flag referenda
Date9 September 2015
CaseApplications for urgent hearings concerning the Crown’s decision to review and possibly change the New Zealand flag (668KB PDF)
CitationWai 2534, #2.5.0003
TribunalWaitangi Tribunal
Member(s)Judge Savage
Earlier/later decisions
Legislation citedTreaty of Waitangi Act 1975
Cases cited
Overview and resultThe Waitangi Tribunal declined an urgent inquiry into claims that the Crown had breached the principles of the Treaty of Waitangi in its decisions to review and possibly change the New Zealand flag.

Background

The New Zealand Flag Referendums Bill 2015 (the Bill) was introduced into the House of Representatives in March 2015. The Bill provided for the administration of the referendum process to review and possibly change the flag, and specified the voting process. By the time the Tribunal decided this application for urgency the Bill was enacted as the New Zealand Flag Referendums Act 2015.

The applicants alleged that the Crown had breached the principles of the Treaty of Waitangi in initiating the New Zealand flag referendum process. They challenged the Treaty compliance of the referendum process. They alleged they would suffer irreversible prejudice to their mana, tino rangatiratanga and the flag as a taonga of theirs.

The Crown opposed the application on jurisdictional and procedural grounds, including that the Flag Referendum Bill was before the House of Representatives, that the applicants had delayed in bringing their application, that the applicants had not demonstrated they would suffer significant and irreversible prejudice if their claim was not heard urgently, and that there remained the alternative of participating in the flag consideration process. The Crown also submitted that the appointed panel who led the flag reconsideration project conducted an engagement process with Māori that had been Treaty compliant and allowed for meaningful engagement with Māori.

Discussion

The application for urgency was declined.

The Tribunal’s decision focused on whether the applicant had established evidence of likely irreversible prejudice. The Tribunal noted the high threshold required for granting urgency given the need to consider the interests of other claimants who awaited hearings. The Tribunal decided that a delay to hearing a claim about the flag change would have little practical effect on the lives of Māori and, therefore, could be delayed.

The Presiding Officer disposed of this application by a focus on what he considered decisive, the possible prejudice arising.

52. There are many issues in this matter. The most effective way to obtain a result on this application for urgency is to pass straight to the issue which is decisive for me. I therefore will presume, for the sake of argument, that the applicants will obtain a finding that the Crown's acts or omissions are inconsistent with the principles of the Treaty.

53. Therefore the focus is prejudice. This Tribunal has consistently ruled, that in considering an application for urgency, the applicant will have to establish or demonstrate that they, or those they represent, are suffering or are likely to suffer significant and irreversible prejudice as a result of current or pending Crown action.

This general principle is not written in stone and I recognise there will be exceptional cases, which do not precisely meet that test. But this is not one of them.

A high threshold is required to recognise that urgency is an exceptional procedure. Granting urgency does not simply involve the parties to the application, the Crown and the Tribunal. I have a duty to consider a fourth and unrepresented group, namely claimants who have waited years, often decades for the Tribunal to be able to direct its resources to them. I therefore must give some weight to those others waiting in a substantial queue while this claim attempts to jump the queue.

54. In deciding this application I must assess what is lost if urgency is not granted. To an extent that entails a subjective judgement.

55. The claimants assert that the existing flag is a taonga and a symbol of their rangatiratanga. As against that, I have vivid memories of the flag being shot at Ruatoki during the course of the hearing of a claim. The flag of course is but a symbol. But the nature and strength of the symbolism and what it evokes can vary from person to person or from group to group. For some it has been to live, struggle and if necessary die for. For others it is simply a logo. I suppose they are two ends of a spectrum. In a similar vein for some, it is a symbol of nationhood. For others, it is a symbol of oppression past or present.

56. I must therefore ask myself when reaching this decision, what practical effect on the lives of Maori will it have if the claim is heard in the ordinary way as a kaupapa claim?

In my judgment the answer must be that it will not have a prejudice of the high level that is required upon the lives of Maori in a practical, cultural or spiritual sense. I do not believe that it can be argued that there will be significant or irreversible damage to Maori culture or wellbeing.

I make this finding purely in the context of an urgency application and on the evidence and submissions that are presently before me. I do not intend at all, to prejudge the claim on its merits when it is ultimately heard.

Comment

Judge Savage also commented on the subjective judgement required to determine urgency applications in a subsequent case. When deciding to grant an urgent hearing into the Department of Corrections and Reoffending Prisoners Claim, Judge Savage stressed the human and social consequences that an identifiable group of Māori would face if the applicant was correct in his asserted grounds for an urgent inquiry. See (2015) December Māori Law Review.

Author: Nicholas Coyle

Nicholas is an Analyst on the Negotiations and Settlement Team at the Office of Treaty Settlements. Nicholas graduated from Victoria University of Wellington in 2015 with a LLB. He also has a BA in History from the University of Auckland.