Gary Judd KC: Defining Principles of Treaty is not Rewriting the Treaty

Principles are not in the Treaty but are a Parliamentary creation

In my article published yesterday, Treaty of Waitangi “principles,” I summarized how the idea that there are “principles” of the Treaty came to be part of our legal lexicon. I subtitled the article “How a legal fiction was created,” but did not explain why it is a legal fiction. I will do so, at least in an introductory way, in my second substantive article. Before writing and publishing that, I want to deal with a misconception highlighted by a comment on yesterday’s article.

The A Halfling’s View comment, “I am concerned about the suggestion that the new Government is going to get rid of the Treaty and that is the effect of Seymour's proposed (leaked) Bill,” reflects misconceptions engendered by mischievous media commentary demonstrating the all-too-common prevalence within the ranks of those who disingenuously call themselves journalists of not bothering about the facts. Much media commentary has asserted that the coalition government will introduce legislation to do away with or change or rewrite the Treaty of Waitangi.

So, let us have a look at the facts.

The ACT Party coalition agreement with National includes under the heading Strengthening Democracy, “Introduce a Treaty Principles Bill based on existing ACT policy and supported to a Select Committee as soon as practicable.”

The agreement that a Treaty Principles Bill would be introduced refers back to existing ACT policy, so one needs to ascertain what that is. It was stated by then ACT MP and now Cabinet Minister Nicole McKee in a press release of 10 October 2022:

“ACT proposes that the next Government pass legislation defining the Principles of the Treaty, in particularly their effect on democratic institutions. Then ask the people to vote on it becoming law.

“This is what we did with the End of Life Choice Act, Parliament passed the law and the people ratified it at referendum.

It would define the Principles of the Treaty as.

1. The New Zealand Government has the right to govern New Zealand.

2. The New Zealand Government will protect all New Zealanders’ authority over their land and other property

3. All New Zealanders are equal under the law, with the same rights and duties.

It can be seen that the policy is to define the principles of the Treaty, not to rewrite the Treaty which is, of course, impossible because the Treaty is a historical fact. Neither it nor what it says can be legislated out of existence.

As I explained yesterday, the idea that the Treaty has principles was initially put forward in Labour’s 1972 election manifesto, then given statutory standing by the Treaty of Waitangi Act 1975. It was subsequently introduced into other legislation by the 1984-1990 Labour government, and by later governments.

Parliament did not define the principles, leaving it open to the Waitangi Tribunal and later the courts to do so. A 2001 Ministry of Māori Development publication, He Tirohanga ō Kawa ki te Tiriti o Watangi A Guide to the Principles of the Treaty Of Waitangi As Expressed by the Courts and the Waitangi Tribunal1, stated:

Treaty principles are therefore informed by various sources, including the literal terms of both texts, the cultural meanings of words, the influences and events which gave rise to the Treaty, as far as these can be determined from historical sources, as well as contemporary explanations and legal interpretations. These principles interpret the Treaty as a whole, including its underlying meanings, intention and spirit, to provide further understanding of the expectations of signatories. In the view of the Courts and the Waitangi Tribunal, Treaty principles are not set in stone. They are constantly evolving as the Treaty is applied to particular issues and new situations. Neither the Courts nor the Waitangi Tribunal have produced a definitive list of Treaty principles. As President Cooke has said: “The Treaty obligations are ongoing. They will evolve from generation to generation as conditions change”.

The Treaty does not state principles. It is an agreement recording an exchange of values, including future obligations. Parliament created the fiction that there are principles, which produced the opportunity for creativity in their formulation. The Ministry of Māori Development’s 2001 summary shows how this can be done. If one is able to search for, “underlying meanings, intention and spirit,” the scope becomes very wide, and open to adoption of subjective viewpoints.

Parliament’s neglect, or perhaps the deliberate (but unspoken) intention of the government of the day, has produced a situation where unelected judges and Tribunal members, along with public servants, are using “principles” of the Treaty to produce outcomes which are not necessarily what one would expect in a free and democratic society, to quote from s 5 of the New Zealand Bill of Rights; nor in a nation which claims to hold the rule of law and the sovereignty of Parliament as twin pillars of its constitution (see, now, Senior Courts Act 2016, s 3(2) and my article The Humpty Dumpty approach to the rule of law). The principle of equality under or before the law is a fundamental principle of the rule of law.

I noted, yesterday, the Tribunal’s statement in the Kaituna River report (WAI 4, 1984) that the enactment of the Treaty of Waitangi act 1975 gave the Treaty a new status. The Tribunal correctly noted that before the passing of the 1975 Act, it had had no legal effect. The law is that a treaty is not part of domestic law unless expressly adopted by domestic legislation, because a treaty is an agreement between sovereign states, and not a lawmaking activity of a party to the treaty.

I think most New Zealanders would agree that redress should be provided for the Crown’s breaches, some of them egregious, of the promise made in Article 2 of the Treaty to protect the property of the chiefs, hapu and Māori people. I have not detected significant opposition to the Treaty settlements providing compensation for Treaty breaches such as land confiscations. What has provoked public opposition, so far as I can tell, has been Tribunal, courts and government creep into areas which undermine the principle of equality under the law, and the principle that New Zealand is a free and democratic society. This overreach and the last government’s active promotion of it seems to have been a significant cause of its resounding electoral defeat.

If the legal position were to be restored to what it was before the passing of the 1975 Act, and all references to the principles of the Treaty in subsequent legislation were to be removed, there would be no mechanism left to enable redress to be obtained in those cases yet to be addressed.

The ACT Party policy would, seemingly, leave existing legislation’s references to the “principles” intact, but would now say what the principles are. It would remedy Parliament’s previous failure to do so.

In particular, the Treaty of Waitangi Act 1975 would remain in force and the Tribunal would still be able to make recommendations based on claims that governments past or present failed or are failing to protect claimants’ authority over their land and other property.

Postcript
A typo in yesterday’s article has been drawn to my attention. I said, “Section 6 was amended in 1975.” That should have said 1985. It has now been corrected.

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1 At page 77.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.