Treaty of Waitangi Amendment Act 1988
Treaty of Waitangi Amendment Act 1988
Treaty of Waitangi Amendment Act 1988
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Treaty of Waitangi Amendment Act 1988
Public Act |
1988 No 233 |
|
Date of assent |
21 December 1988 |
|
Contents
An Act to amend the Treaty of Waitangi Act 1975
BE IT ENACTED by the Parliament of New Zealand as follows:
1 Short Title and commencement
(1)
This Act may be cited as the Treaty of Waitangi Amendment Act 1988, and shall be read together with and deemed part of the Treaty of Waitangi Act 1975 (hereinafter referred to as the principal Act).
(2)
This Act shall come into force on the 1st day of January 1989.
2 Waitangi Tribunal
(1)
Section 4 of the principal Act (as amended by section 2 of the Treaty of Waitangi Amendment Act 1985) is hereby amended by repealing subsections (2), (2a), and (3), and substituting the following subsections:
“(2)
The Tribunal shall consist of—
“(a)
The Chief Judge of the Maori Land Court, who shall be both a member of the Tribunal and its Chairperson:
“(b)
Not less than 2 other members and not more than 16 other members to be appointed by the Governor-General on the recommendation of the Minister of Maori Affairs made after consultation with the Minister of Justice.
“(2a)
In considering the suitability of persons for appointment to the Tribunal, the Minister of Maori Affairs—
“(a)
Shall have regard to the partnership between the 2 parties to the Treaty; and
“(b)
Shall have regard not only to a person’s personal attributes but also to a person’s knowledge of and experience in the different aspects of matters likely to come before the Tribunal.
“(3)
Every member of the Tribunal appointed under subsection (2)(b) of this section shall hold office for such term as the Governor-General shall specify in his or her appointment, being a term not exceeding 3 years, but may from time to time be reappointed.”
(2)
Section 2 of the Treaty of Waitangi Amendment Act 1985 is hereby consequentially repealed.
3 New sections inserted
The principal Act is hereby amended by inserting, after section 4, the following sections:
“4a Deputy Chairperson
“(1)
The Chairperson of the Tribunal may from time to time appoint a Judge of the Maori Land Court as the deputy of the Chairperson of the Tribunal.
“(2)
In any case in which the Chairperson of the Tribunal becomes incapable of acting by reason of illness, absence, or other sufficient cause or during any vacancy in the office of Chairperson, the deputy of the Chairperson of the Tribunal shall have and may exercise all the powers, functions, and duties of the Chairperson.
“(3)
No acts done by a person holding office as the deputy of the Chairperson of the Tribunal in that person’s capacity as such deputy, and no act done by the Tribunal while a deputy of the Chairperson of the Tribunal is acting as such deputy, shall in any proceedings be questioned on the ground that the occasion for the deputy’s so acting had not arisen or had ceased.
“4b Appointment of Judge not to affect tenure, etc.
The appointment of a Judge as the deputy of the Chairperson of the Tribunal, or service by a Judge as that deputy or as a member of the Tribunal, does not affect his or her tenure of his or her judicial office or his or her rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as a Judge (including those in relation to superannuation) and, for all purposes, his or her service as a member shall be taken to be service as a Judge.”
4 Power of Tribunal to state case for Maori Appellate Court or Maori Land Court
The principal Act is hereby amended by inserting, after section 6, the following section:
“6a
“(1)
Where a question of fact,—
“(a)
Concerning Maori custom or usage; and
“(b)
Relating to the rights of ownership by Maori of any particular land or fisheries according to customary law principles of ‘take’ and occupation or use; and
“(c)
Calling for the determination, to the extent practicable, of Maori tribal boundaries, whether of land or fisheries,—
arises in proceedings before the Tribunal, the Tribunal may refer that question to the Maori Appellate Court for decision.
“(2)
Where a question relating to the Maori or group of Maori to whom any land or any part of any land or any interest in land is to be returned pursuant to a recommendation under section 8a(2)(a) of this Act arises in proceedings before the Tribunal, the Tribunal may refer that question to the Maori Land Court for decision.
“(3)
Any question referred to the Maori Appellate Court under subsection (1) of this section or to the Maori Land Court under subsection (2) of this section shall be in the form of a special case to be drawn up by the parties (if any) to the proceedings and, if the parties do not agree, or if there are no parties, to be settled by the Tribunal.
“(4)
The Maori Appellate Court shall have jurisdiction—
“(a)
To decide any question referred to it under subsection (1) of this section; and
“(b)
To hear and determine any appeal against any decision of the Maori Land Court on any question referred to that Court under subsection (2) of this section.
“(5)
The Maori Land Court shall have jurisdiction to decide any question referred to it under subsection (2) of this section.
“(6)
The decision of the Maori Appellate Court on any question referred to it under subsection (1) of this section and on any appeal determined by it pursuant to subsection (4)(b) of this section shall be binding on the Tribunal.
“(7)
Subject to subsection (8) of this section, the decision of the Maori Land Court on any question referred to it under subsection (2) of this section shall be binding on the Tribunal.
“(8)
An appeal may be brought under section 42 of the Maori Affairs Act 1953 against any decision of the Maori Land Court on a question referred to it under subsection (2) of this section; and section 42 of the Maori Affairs Act 1953 shall apply in relation to any such appeal as if that decision were a final order of the Maori Land Court.
“(9)
The Maori Appellate Court shall inform the Waitangi Tribunal of the decision of the Maori Appellate Court on—
“(a)
Any question referred to it under subsection (1) of this section; and
“(b)
Any appeal brought against any decision made by the Maori Land Court on any question referred to it under subsection (2) of this section.
“(10)
The Maori Land Court shall inform the Waitangi Tribunal of—
“(a)
The decision of the Maori Land Court on any question referred to it under subsection (2) of this section; and
“(b)
The bringing of any appeal under subsection (8) of this section.”
5 Power of Tribunal to defer claim
(1)
Section 7 of the principal Act is hereby amended by inserting, after subsection (1), the following subsection:
“(1a)
The Tribunal may, from time to time, for sufficient reason, defer, for such period or periods as it thinks fit, its inquiry into any claim made under section 6 of this Act.”
(2)
Section 7(2) of the principal Act is hereby amended by inserting, after the word “claim”
, the words “or to defer its inquiry into any claim,”
.
6 New clauses substituted
(1)
The Second Schedule to the principal Act is hereby amended by repealing clauses 1 to 4, and substituting the following clauses:
“1 Member to continue in office to complete proceedings
Any member of the Tribunal whose term of office has expired or who has resigned from office shall, whether or not that member’s successor has come into office, continue in office for the purpose of completing any proceedings heard by the Tribunal before the expiry of the member’s term of office or the member’s resignation.
“2 Vacation of office
“(1)
Any member of the Tribunal appointed under section 4(2)(b) of this Act may at any time resign his or her office by delivering a notice in writing to that effect to the Minister.
“(2)
A member of the Tribunal appointed under section 4(2)(b) of this Act shall be deemed to have vacated his or her office if he or she dies or is, under the Insolvency Act 1967, adjudged bankrupt.
“(3)
Any member of the Tribunal appointed under section 4(2)(b) of this Act may at any time be removed from office by the Governor-General for inefficiency, disability, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.
“(4)
The powers and functions of the Tribunal shall not be affected by any vacancy in its membership.
“3 Remuneration, allowances, and expenses of members of Tribunal
“(1)
There shall be paid to the members of the Tribunal such remuneration by way of fees, salary, wages, or allowances as may from time to time be fixed, whether generally or in respect of any particular member or members of the Tribunal, by the Higher Salaries Commission.
“(2)
Any decision under subclause (1) of this clause shall take effect on such date (whether the date thereof or any earlier or later date) as may be specified therein. If no such date is specified, the decision shall take effect on the date thereof.
“(3)
The Tribunal is hereby declared to be a statutory Board within the meaning of the Fees and Travelling Allowances Act 1951.
“(4)
There shall be paid to the members of the Tribunal travelling allowances and travelling expenses, in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply accordingly.”
(2)
Section 5 of the Treaty of Waitangi Amendment Act 1985 is hereby consequentially repealed.
7 Sittings of Tribunal
(1)
The Second Schedule to the principal Act is hereby amended by repealing clause 5 (as amended by section 6 of the Treaty of Waitangi Amendment Act 1985), and substituting the following clause:
“5
“(1)
The persons to constitute the Tribunal for the purposes of any sitting of the Tribunal shall comprise—
“(a)
As presiding officer—
“(i)
The Chairperson; or
“(ii)
A Judge of the Maori Land Court appointed by the Chairperson to act as presiding officer; or
“(iii)
A member of the Tribunal appointed by the Chairperson to act as presiding officer; and
“(b)
Such other members of the Tribunal (being not less than 2 and not more than 6) as are appointed by the Chairperson.
“(2)
Only a member of the Tribunal who is a barrister or solicitor of the High Court of at least 7 years’ standing, shall be qualified for appointment as presiding officer under subclause (1)(a)(iii) of this clause.
“(3)
Where a Judge of the Maori Land Court acts as presiding officer pursuant to subclause (1)(a)(ii) of this clause, that Judge shall, while he or she holds office as presiding officer, be deemed to be a member of the Tribunal.
“(4)
Sittings of the Tribunal shall be held at such times and places as the Tribunal or the presiding officer from time to time appoints.
“(5)
Any sitting of the Tribunal may be adjourned from time to time and from place to place by the Tribunal or the presiding officer.
“(6)
The powers conferred on the Tribunal are exercisable notwithstanding the absence from any sitting of the Tribunal of any of the persons constituting the Tribunal for the purposes of the sitting so long as—
“(a)
The presiding officer is present; and
“(b)
At least 2 of the other members constituting the Tribunal for the purposes of the sitting are present; and
“(c)
At least one of the members present is Maori.
“(7)
In the event of disagreement in respect of any matter, the decision of the majority of the members dealing with the matter shall be the decision of the Tribunal, and, where those members are equally divided, the decision of the presiding officer shall be the decision of the Tribunal.
“(8)
The Tribunal may meet in private or in public, as the Tribunal from time to time decides. The presiding officer shall cause such notice as he or she thinks fit to be given of any public sitting of the Tribunal to persons likely to be affected thereby.
“(9)
Except as expressly provided in this Act, the Tribunal may regulate its procedure in such manner as it thinks fit, and in doing so may have regard to and adopt such aspects of te kawa o te marae as the Tribunal thinks appropriate in the particular case, but shall not deny any person the right to speak during the proceedings of the Tribunal on the ground of that person’s sex.”
(2)
Section 6 of the Treaty of Waitangi Amendment Act 1985 is hereby consequentially repealed.
8 Tribunal to be a Commission of Inquiry
The Second Schedule to the principal Act is hereby further amended by repealing subclause (2) of clause 8, and substituting the following subclause:
“(2)
The Chairperson of the Tribunal, or any other person, being the presiding officer at a sitting of the Tribunal or a member of the Tribunal purporting to act by direction or with the authority of the Chairperson,—
“(a)
May issue directions or conduct conferences; or
“(b)
May issue summonses requiring the attendance of witnesses before the Tribunal, or the production of documents; or
“(c)
May do any other act preliminary or incidental to the hearing of any matter by the Tribunal.”
9 Amendment to Higher Salaries Commission Act 1977
The Fourth Schedule to the Higher Salaries Commission Act 1977 (as substituted by section 14 of the Higher Salaries Commission Amendment Act 1988) is hereby amended by inserting, after the item relating to the Wanganui Computer Centre Privacy Commissioner, the following item:
“The members of the Waitangi Tribunal.”
10 Transitional provisions
(1)
Notwithstanding the provisions of section 2 of this Act, every member of the Tribunal in office immediately before the commencement of this Act and appointed under subsection (2)(b) of section 4 of the principal Act (as repealed by section 2(1) of this Act) shall be deemed to have been duly appointed under subsection (2)(b) of section 4 of the principal Act (as substituted by section 2(1) of this Act).
(2)
The term of office of every person deemed by subsection (1) of this section to have been appointed a member of the Tribunal shall expire with the close of the last day of the period for which the member was appointed before the commencement of this Act.
(3)
Notwithstanding the repeal of clause 4 of the Second Schedule to the principal Act (which provides for the appointment of deputies for members of the Tribunal), any person who is in office, immediately before the commencement of this Act, as a deputy for a member of the Tribunal and who has been involved in that capacity in the hearing of any proceedings heard by the Tribunal may, after the commencement of this Act, act as a member of the Tribunal for the purpose of completing those proceedings.
This Act is administered in the Department of Maori Affairs.
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Versions
Treaty of Waitangi Amendment Act 1988
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