SUBMISSION ON TREATY PRINCIPLES BILL

My submission as lodged with the Justice Select Committee today

Support for the bill

1. I support the bill. My primary reason is the need for robust affirmation of the twin pillars of our constitution: New Zealand’s commitment to the rule of law and to the sovereignty of Parliament (Senior Courts Act 2016, s 3(2)). I wish to be heard in support of my submission.

2. The Bill’s Principle 1 robustly affirms the sovereignty of Parliament. Principle 3 robustly affirms equality under the law. Equality under the law is a critical ingredient of the rule of law. Affirming it indirectly affirms other aspects of the rule of law which are under attack by political movements which gain support from the way the “principles” have been developed.

3. The Bill’s Principle 2 is required to maintain the honour of the Crown in relation to Article 2 of the Treaty whilst confining the Article 2 commitment to its proper place wherein extravagant claims are ruled out.

4. The Bill’s Principles 1 and 3 (for the most part) are already part of New Zealand’s constitution. They are its twin pillars. It ought not to be necessary for them to be affirmed. It would not have been necessary for them to be affirmed had those responsible for developing the principles paid proper regard to the twin pillars. Because the principles have been the means of undermining the Constitution and facilitating extravagant Article 2 claims, defining the principles must perforce be the way the problem is remedied.

The Bill is a solution to the problem

5. The problem originated with the Treaty of Waitangi Act 1975’s introduction of “principles” into the legal lexicon. The 1975 Act was built on two fictions. The first, which was used to justify the second, is that there were two versions of the Treaty; the second is that the Treaty established principles. See my Treaty of Waitangi “principles” — only one text.

6. The problem created by the 1975 Act was compounded by the Court of Appeal’s decision in the “lands” case and made worse by legal creativity in relation to taonga.

7. The Schedule to this submission explains why the use of “partnership” in the “lands” case must have been metaphorical. If it was not merely metaphorical, the judges were voicing contradictions. The Treaty cannot be interpreted on the one hand as making the Queen sovereign and Māori her subjects and on the other as creating a partnership between the Queen and Māori. The concepts are mutually exclusive. Partnership was merely an analogical means of introducing the notions of fair play, good faith and honour when the SOE Act required the Crown not to act inconsistently with the principles of the Treaty.

8. Ideas of constitutional partnership or co-governance never featured in the “lands” case. Nor could they, for the Treaty is perfectly clear, in both the Māori and English texts. Governance was given to the Crown alone, and in exchange, the tribal leaders and the ordinary people of New Zealand were assured continuing ownership of their property (unless they chose to alienate to the Crown) and were guaranteed protection and equal status with the British settlers under British law.

9. The Court of Appeal would not suggest an absurd departure from the words of the Treaty, and did not do so. Just two years after the “lands” case, in Tainui Maori Trust Board v Attorney-General [1989] 2 NZLR 513, 527-528, Court of Appeal President, Sir Robin Cooke was emphatic:

The case [i.e., the Tainui case being decided] shows that the principles of the Treaty of Waitangi, outlined in [the “lands” case], are taking effect only slowly but nevertheless surely. It is as well to stress also that they are of limited scope and do not require a social revolution…. It is obvious that, from the point of view of the future of our country, non-Maori have to adjust to an understanding that does not come easily to all: reparation has to be made to the Maori people for past and continuing breaches of the Treaty by which they agreed to yield government. Lip service disclaimers of racial prejudice and token acknowledgments that the Treaty has not been honoured cannot be enough. An obligation has to be seen to be honoured. On the Maori side it has to be understood that the Treaty gave the Queen government, Kawanatanga, and foresaw continuing immigration. The development of New Zealand as a nation has been largely due to that immigration. Maori must recognise that it flowed from the Treaty and that both the history and the economy of the nation rule out extravagant claims in the democracy now shared. Both partners should know that a narrow focus on the past is useless. The principles of the Treaty have to be applied to give fair results in today’s world. (Underlining added.)

10. The other problem was creativity in relation to the meaning of taonga. Taonga has been wrongfully interpreted to include anything treasured. In 1840, it simply meant property, specifically property taken in warfare. See my article, here. The wrongful interpretation has been used to extend the obligations created by Article 2 beyond lands, places of abode and tangible property to include “anything treasured,” which can be extended to include just about anything.

11. Although the “principles” structure has been built on rotten foundations, that has little relevance to the purpose of the Treaty Principles Bill. Had the foundations and the judicial and Waitangi Tribunal deliberations built on those foundations been impeccable, Parliament would still need to deal with what has become a critical challenge to Parliamentary sovereignty and New Zealand’s democratic ideals.

12. The seat of sovereignty is the place where ultimate power resides. Parliament, having full power to make laws (Constitution Act 1986, s 15(1)) is that place, as I outlined in greater detail in KCs ARE NOT A SPECIAL ELITE.

13. Parliament is a representative institution. In our democracy, Parliament’s authority is rooted in popular consent, signified by the selection of its members by free and fair elections in which, subject to some disqualifications, all citizens and permanent residents aged 18 or over are entitled to participate.

14. In New Zealand’s colonial past, the Crown was titularly the British monarch and politically the British government. Today the Crown is, for most purposes, the New Zealand government which gains its authority from Parliament. It cannot continue as the government if it cesses to enjoy Parliament’s confidence.

15. The thrust of the principles, as they have developed since the 1980s, is to divide the population according to ancestry and to confer upon one segment the status of partner with special rights and privileges flowing from that status. This is no less than a confrontation with democracy and the sovereignty of Parliament.

16. As Rt Hon David Lange said in November 2000,

What [democratic government] cannot do is acknowledge the existence of a separate sovereignty. As soon as it does that, it isn’t a democracy. We can have a democratic form of government or we can have indigenous sovereignty. They can’t coexist and we can’t have them both….

The treaty itself contains no principles which can usefully guide government or courts.

[See Treaty is a bald agreement, anchored in its time and place.]

17. Conferring special rights and privileges also confronts the rule of law’s requirement for equality before the law which complements the political equality of a Parliamentary democracy

18. One must be blunt and hardheaded about this issue. We have people of goodwill who fail to see the dangers of going down a separatist path. Some of those people support and advocate decolonisation which they understand to be “the taking back of power and control” by the indigenous people. That means placing power and control in the hands of the indigenous people which in practice means placing power and control in the hands of the few who are the leaders; it means the destruction of democracy, the destruction of representative government, the destruction of Parliamentary sovereignty.

19. The principles of the Treaty have become an important weapon in the hands of those who seek the outcome described in the previous paragraph. Not the only weapon. Adherence to these dangerous ideas has seeped into the Parliament, the public service including the Crown Law Office, many legal institutions such as the New Zealand Law Society, the judiciary and the universities. There are unscrupulous people in positions of power who use their positions to advance the agenda.

20. There are those who will say that the destruction of democracy is a fanciful idea, that this will not come to pass. It is to be hoped they are correct but there are already members of Parliament who have shown by their actions that they do not respect democratic institutions and will try to tear them down. This may be a harbinger of things to come.

21. “The only thing necessary for the triumph of evil is for good men to do nothing.” Whoever said that — whether Edmund Burke or someone else — it expresses a profound truth. This Bill is an attempt to do something to combat threats to New Zealand’s free and democratic society. It should be supported.

22. I proceed now to comment on the proposed principles – 1 and 3 first, then 2.

Principle 1

23. In line with what I have submitted concerning Parliament as the seat of sovereignty, I would reverse the order of Principle 1, to read

The Parliament of New Zealand has full power to make laws and, subject to Parliament’s full power to make laws, the Executive Government of New Zealand has full power to govern.

24. In my opinion that is an accurate statement of the constitutional position. The need to legislate for it as the first of the principles arises from the failure of those responsible for the development of the “principles” imported into New Zealand’s law by the 1975 Act to pay allegiance to this foundational constitutional position.

25. I consider the proposed paragraphs (a) and (b) to be unnecessary and would omit them.

Principle 3

26. Subsection (1) expresses a vital component of the rule of law and, as such, it is already part of New Zealand’s constitution. Subsection (2)(a) is implied by subsection (1), but it is so important that it should be stated explicitly. Subsection (2)(b) is in my opinion not part of the rule of law but is justified by the needs of common humanity and is therefore appropriately included.

27. Like the sovereignty of Parliament, the rule of law components of Principle 3 must be legislated because they have often been ignored in the development of the 1975 Act principles.

28. My only other comment on Principle 3 is to emphasise the importance of the use of “equal”. Equality is capable of objective assessment. Too often, equality is supplanted by claims for equity. In contrast to equality, equity has subjective elements. What is one person’s equity may be another person’s inequity.

Principle 2

29. Principle 2 does not state a Constitutional precept. It is aimed at the rights conferred by Article 2 of the Treaty. Those rights were conferred on the chiefs (rangatira), hapu and all the people of New Zealand. There was no mention of iwi, nor of iwi-Māori. Indeed, there was no mention of Maori; however, “ki nga tangata katoa o Nu Tirani” referred to the native population, to be contrasted with Her Majesty’s subjects who were not then people of New Zealand but were the settlers. Therefore, I would reword subsection (1):

The Crown recognises, and will respect and protect, the rights that the chiefs, hapu and the Māori people had under the Treaty of Waitangi/te Tiriti o Waitangi at the time they signed it.

30. The Bill leaves the 1975 Act intact. The 1975 Act set up the Waitangi Tribunal to make recommendations to the government which the government could accept or reject or modify and seek to give force to by proposing legislation to Parliament. I see subsection (2) as appropriate preservation of the system established by the 1975 Act, limited to historical treaty claims as defined.

31. Apart from historical treaty claims, which relate to Crown breaches of Article 2 of the Treaty before 21 September 1992, subsection (2) has the effect of negating the special privilege conferred by the 1975 Act on “any Maori” or “any group of Maoris” of being able to go to the Waitangi Tribunal to complain about something which anyone else would have to do by making representations to the government, to a select committee, or to a member or members of Parliament. This to my mind is entirely appropriate for 21^st century New Zealand.

Paragraph 7 of the submission refers to a schedule. I shall publish it in a separate post.