Peter Bassett: Effecting Treaty principles into immigration: When Footnotes Decide the Verdict

Modern activist legal writing has a sound of its own: the rustle of footnotes doing work they were never meant to do. Elizabeth Rabiyan’s essay claiming that New Zealand immigration law has “failed to give effect to Te Tiriti o Waitangi” is a near-perfect specimen.

At first glance, the piece looks formidable. Thirty-five references. Senior judges. Academic authorities. Treaty “principles.” It has all the trappings of seriousness. But a closer read exposes the pattern: citations are used not to test ideas, but to sanctify them. Cases are cited not for what they say, but for how they can be made to sound. History is filtered. Disagreement disappears. Readers are ushered, gently but firmly, toward a conclusion that is assumed from the outset.

Before the argument begins, Rabiyan performs the now-familiar ritualistic disclaimer:

“I am a Pākehā / tangata Tiriti immigrant to Aotearoa from the United States. I previously worked in immigration law where I developed a strong anti-borders stance.”

This functions less as context than as a kind of secular karakia: an ideological pre-cleansing. The reader is invited to treat what follows not merely as argument, but as morally approved.

Readers should also note that the Equal Justice Project is a student-run advocacy organisation based at Auckland University’s Law Faculty, heavily oriented toward law reform activism. That context matters.

Her central claim

Rabiyan’s argument is straightforward, if ambitious: immigration law should be treated not as a core function of sovereignty, but as a Treaty-governed relationship. Immigration determines who may enter, settle, and belong. She asserts that current law fails Māori, and therefore must give effect to Te Tiriti.

The “how and why that should change” is largely assumed: she gestures toward mandatory Treaty consideration, Māori-informed decision-making, and a reorientation of the law away from parliamentary supremacy. She never details mechanisms, accountability, or democratic oversight. The obligation is asserted; the machinery is left to the imagination.

The central claim that never becomes law

She invokes Treaty “principles” cases — Huakina Development Trust v Waikato Valley Authority and Barton-Prescott v Director-General of Social Welfare — to give weight to her argument.

But both are misapplied. Huakina addressed environmental statutory decisions. Barton-Prescott dealt with welfare discretion and cultural context. Neither establishes a default Treaty obligation on immigration law, one of the core expressions of state sovereignty. That leap is hers, not the courts’.

She also relies on the Singh v Minister of Immigration cases (1999 and 2000) — deportation cases where Treaty arguments were explicitly raised and explicitly rejected. One judge declined to consider the Treaty at all; another dismissed the argument on the facts. Yet in her essay, these defeats are treated as evidence that immigration law “impedes Māori sovereignty.” Lost cases become moral victories. She is not comparing apples with apples; she is calling a dropped catch a win.

Academic theory presented as Māori worldview

Rabiyan repeatedly frames modern academic concepts — relational belonging, mana-based inclusion, and indigenous borderlessness — as if they were settled Māori worldviews.

They are not. These concepts are late-20th-century academic constructs, often developed in Western universities drawing on critical legal studies and decolonial theory. They may be interesting. They may be provocative. But they are not evidence of nineteenth-century Māori understandings of sovereignty or migration.

Her essay erases diversity of Māori political thought, including those who reject co-governance, oppose Treaty-based veto power, or support equal citizenship under parliamentary democracy. Plurality disappears. Orthodoxy reigns.

What she leaves out

Notably absent are historical and legal realities that complicate the argument: Sir Apirana Ngata, the Kohimarama Conference of 1860 (where Māori chiefs affirmed Crown sovereignty), and the clear supremacy of Parliament. Even Te Papa’s own Treaty materials acknowledge this history. The omission is striking, whether accidental or curatorial.

Democracy, too, is largely ignored. There is no discussion of who would exercise Treaty-based authority over immigration, no mechanism for accountability, no role for ordinary citizens. Parliament fades into the background, treated as a temporary inconvenience awaiting correction.

Irony of tauiwi

Rabiyan closes with a flourish: she warns that it would be “hard to argue the current system of labour exploitation and cultural assimilation is beneficial for tauiwi”.

The sentence is remarkable in its opacity: she is herself one of those tauiwi, and nowhere does she define “beneficial” or provide evidence of exploitation or assimilation. It reads as rhetorical flourish rather than analysis — an unexamined twist that underscores the essay’s ideological sweep.

What this really is

Rabiyan is entitled to argue for radical change. She is entitled to advocate for a different constitutional order. But readers deserve clarity about what they are reading.

This is not settled law discovering itself. It is not neutral analysis uncovering hidden obligations.

It is ideological persuasion — selective, confidently incomplete, and presented with a veneer of scholarship. The footnotes do not rescue it. They are the camouflage.

This is not neutral legal argumentation. It is disseminating ideological persuasion skinned with a veneer of scholarship.

Peter Bassett is an observer of media, politics and public institutions, writing on how narrative replaces scrutiny.