Thursday, May 5, 2022

Graeme Reeves: Cooke on Partnership Treaty of Waitangi

Co–Governance is predicated on the assumption that the Treaty of Waitangi created an equal Partnership between Maori and the Crown.

Is that assumption correct?

The term Partnership was first used in the context of the Treaty in the Court of Appeal case (New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641) in what is referred to as the Lands Case in 1987. In particular the obiter dicta (not the ratio decidendi) in the judgment of Justice Robin Cooke who was the President of the Court of Appeal at that time.

Since the publication of the He Puapua report and its eventual public release, a great deal of debate about the report’s expressed goal of the division of New Zealand into two separate sovereign states has ensued.

Just to recap the He Puapua report was commissioned by the Labour Government as a result of New Zealand becoming a signatory to the United Nations Declaration on Indigenous people’s Rights.

The declaration was signed by Pita Sharples (Maori Party) who was dispatched to the UN in New York secretly by John Key the then Prime Minister of New Zealand.

Helen Clarke when she was Prime Minister had refused to sign the declaration because she feared that by doing so New Zealanders would be surrendering too much of their sovereignty to the United Nations and was therefore undemocratic.

The proponents for the creation of a separatist regime (ethno nationalism/democratic nationalism) attribute the notion that the Treaty of Waitangi declared that it created an equal partnership between Maori and the Crown which has been extrapolated to mean an equal partnership between Maori and the rest to comments made in particular by Justice Robin Cooke in the Lands Case of 1987.

What did Justice Robin Cooke say about partnership in his judgment and in subsequent writings?

1. “the treaty created an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other.”

2. In 1990 Lord Cooke qualified the use of the analogy of partnership in the New Zealand Universities Law review Vol.14 1990/91 when he said, “The Judges did understand that the parties to the treaty were not in fact embarking on a business in common with a view to profit. They also understood that shares in a partnership vary. After all, much legal practice in New Zealand is carried out by partnerships in which the shares are not equal. It seems though that a group of officials thought that the analogy suggested otherwise.”

It is clear that Justice Cooke did not say that the Treaty of Waitangi created a partnership but by way of analogy it did create an enduring relationship of a fiduciary nature in which each party to the Treaty has a positive duty to act in good faith, fairly, reasonably and honourably towards each other.

Even if one accepted that there was a partnership (which it cannot be), it would not be an equal one. This of course must be correct in a democracy where every citizen has the same rights and duties as defined by custom and by the Bill of Rights Act 1990 and preceding enactments starting with the Magna Carter and the Bill of Rights Act 1688.

Section 12 of the Bill of Rights Act 1990 guarantees that, “Every New Zealand citizen who is over the age of 18 years-

(a) Has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall by equal suffrage and by secret ballot; and

(b) Is qualified for membership of the House of Representatives.”

The key word being “equal” meaning every eligible voters vote will have the same weight without discrimination.

Much time and effort is wasted in trying to determine the meaning of the treaty at an academic /legalistic level.

To my mind Lord Cooke’s most meaningful and insightful comments were made in his address to Hui Manawhenua in April 1990 when he said, “The ultimate solutions lie in the hearts and minds and circumstances of the people of New Zealand. Neither the politicians and the court can control these.”

That is what is missing in this debate. No one has taken the trouble to make a genuine effort to determine what is in the” hearts and minds” of New Zealanders about the future of their country.

Big decisions about the future constitutional arrangements for New Zealand are being made largely without any consensus from all New Zealanders.

Such engagement that there is being undertaken mostly with one segment of the New Zealand population which is in stark contradiction with Lord Cooke’s opinion.

How then can we know what is in the hearts and minds of New Zealanders. I would suggest the best way is to ask them directly.

This approach is not palatable to some who inhabit our Parliament for example it is Maori Party policy not to support referenda because that would allow the majority to win. A position shared by the Labour Government if the statements made by Willi Jackson represent the Labour Governments policy (as opposed to the New Zealand Labour Party’s policy). He has publicly declared that we now live in a new type of democracy were the majority of those who vote has been replaced by the minority. He cites MMP as his authority for this new democratic model. MMP has many flaws, but that is not one of them.

Willie Jackson has also publicly proclaimed that Article 3 of the Treaty of Waitangi should be interpreted as requiring “equity “between the parties to the Treaty.

Article 3 is succinct and unambiguous. It states, “In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her Royal protection and imparts to them all the Rights and Privileges of British Subjects”.

Article 3 confers the same “rights and privileges” to Maori as those enjoyed by every other subject i.e. Maori have “equal” rights and privileges.

Those rights are set out in the provisions of the New Zealand Bill of Rights Act 1990.

Equity and equality are two distinct and different concepts and should not be conflated. Equity can never be a right. Equality is a right.

It seems to me that the only way, in the absence of clear policy statements, from the major political parties, regarding major constitutional changes that will affect our society for ever is to call an immediate halt to any further non treaty settlement co governance arrangements until all of the people of New Zealand have declared what is in their hearts and minds. 

In my opinion the politicians and the Court without knowing with some certainty what the majority of New Zealanders have in their hearts and minds do not have the democratic authority to proceed with any co governance projects which are not part of a treaty settlement.

Abraham Lincoln in his famous Gettysburg address (1863) described democracy as follows, “government of the people, by the people, for the people .”

Let the” People” be heard.

Graeme Reeves is a lawyer and former National MP.


Peter said...

Best thing that’s been written on the co-governance debate for some time!

Ray S said...

I doubt that our quasi socialist government has any interest in knowing what the populace think about anything.
This is obvious when we look at where the country is heading and the push to enact changes that will affect everyone for generations.
It is suggested that the "Maori caucus" in parliament holds sway over other representatives thereby forcing preferential outcomes for Maori.
This is probably true and shows us the character of the administration and the people in it.
Lincolns by the people, for the people is never spoken in Wellington.

It will soon get to the stage when words are no longer enough.

Anonymous said...

Thank you for your input. Might be a good idea to state what the ratio decidendi and obiter dicta mean and the importance of that distinction.

Mark Thomson said...

Hi, can you clarify one point - You write "the politicians and the Court without knowing with some certainty what the majority of New Zealanders have in their hearts and minds do not have the democratic authority to proceed with any co governance projects which are not part of a treaty settlement."

Can you confirm that you meant to write "which are not part of" rather than "that are not part of."

The latter would imply that some co-governance project might be a legitimate part of a treaty settlement. The text as written suggests the opposite, though I would have found something like "which cannot be part of any treaty settlement process" a little clearer.

terry handcock said...

we have been lied to by successive govts maori are not indigenous to nz.they migrated here and colonised the country the same as the british.the big difference being the people who were here when maori arrived don't exist any more.the decendants of the people who were here when the british arrived are still wife is a philippino she is not indiginous to the philippines. the people we know as philippino come from the malay migration starting in the 5th century so have been there 16 centuries and are still not indigenous. the indigenous people of the philippines are the little bushmen (previously called pigmies) who are still there today in various parts of the being brown doesn't make you indigenous.