'Group think' traps Waitangi Tribunal in one-track mindset

HIDESIGHT

The Waitangi Tribunal’s interim report on water is wacky and dangerous. 

It’s dangerous because it falsely asserts iwi and hapu own the country’s rivers and lakes – and potentially aquifers, too. A caller to Radio Live last week told me I’m using his water – and I should be coughing for it.

The tribunal gives his claim credibility, generates expectations that can’t be met and kicks off an entirely new grievance that will travel down generations. That is irresponsibly dangerous.

It’s wacky because the tribunal absurdly rests the claim of ownership on the singing of songs about a river and the belief that a taniwha lives there. I kid you not.

These are two of the indicators that the tribunal says prove customary ownership of the country’s rivers and lakes. 

The tribunal does not trouble itself to explain how such customs establish exclusive ownership. The tribunal simply asserts it.

Assertions not proof
The report fails to present an argument. It presents instead a set of unjustified and unjustifiable assertions that carry no logical or factual weight. The tribunal’s heft comes not from facts or logic but from the virtue of being a government-appointed perpetual commission of inquiry.

It’s not an argument from authority. There is no especial or accepted expertise on who can decide whether or not Maori own water. It is, instead, an argument from appointment. The government has appointed the tribunal and that appointment carries weight.

Certainly, the tribunal carries no legal weight. It makes recommendations only. It’s up to the government of the day what it does with them.

But tribunal reports are politically and socially potent. So who are the characters appointed to make this report?

The presiding officer was Chief Judge Wilson Isaac. The tribunal biography proudly states he is Ngati Porou, Tūhoe and Ngāti Kahungunu.

He spent 17 years developing an extensive private practice in Maori land law and family law. He was then appointed to the Maori Land Court in 1994, then Chief Maori Land Court and chairman of the tribunal.

Deputy chairwoman Dr Robyn Anderson undertook research projects for the tribunal and for claimants from the Hauraki Kaipara and Whanganui districts before being appointed to the tribunal.

Tim Castle, before being appointed to the tribunal, was “deeply engaged in advocating for Maori on a wide range of treaty issues and the kaupapa of Te Ao Maori”.

Dr Grant Phillipson worked for the Waitangi Tribunal Unit as a commissioned researcher for 20 years and was then appointed a tribunal member.

Professor Pou Temara is professor of reo and tikanga at the University of Waikato.

And, finally, lawyer Ronald Crosby, who wrote an excellent book, The Musket Wars: A History of Inter-Iwi Conflict, 1806-1845.

Who picked them?
It’s hard to imagine a tribunal more perfectly selected for the narrowest of views on treaty claims and as far away from the public’s view as it is possible to get. Remember this is not a legal report.

The claim at common law would fall flat. It is a commission of inquiry into the issue.

I respectfully suggest that the report’s conclusions were determined by the appointment of the members. I can’t imagine a make-up more likely to suffer group think and to fail to consider counter arguments and to undertake a proper review and critique of their own work.

The weird thing is this. Every one of those members was appointed or reappointed by the present government. Their names travelled through cabinet and past the prime minister.

John Key was clear what he thought of the report. For an argument from appointment, the tribunal did a lousy job at getting the appointer on board.