- The Platform: Sean Plunket discusses this issue with:
Judith Collins MP previously Vice President of the Auckland District Law Society.(here) Good, common-sense comments.
Ron Paterson, Chair of the Independent Review Panel. An excellent interview in which Ron Paterson is unable to explain what the principles of the Treaty are. (here)
- New Zealand Law Society and the Treaty of Waitangi by National MP Stuart Smith on the BFD
- Should the Treaty govern lawyers’ services? A guest post by Roderick Mulgan on Kiwiblog.
Latest News: Law Society President Frazer Barton advises:
The Law Society is currently reviewing the report and will be making recommendations to the Minister for Justice later this year.
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The New Zealand Law Society has recently released an Independent Review called Regulating Lawyers in Aotearoa New Zealand. This is a broad review of the role of lawyers in New Zealand, effectively to bring it into the 21 century. The Review website is here.
The Review also raises the issue of the 1840 Treaty and its role in the supply of legal services in 2023.
The notable thing about the name of the review is that it refers to the Society as the New Zealand Law Society Te Kāhui Ture o Aotearoa and refers to our country as Aotearoa New Zealand. One would expect some precision from the Society when naming the country of its domicile. The word Aotearoa has never been used as the formal name of our country and it is somewhat alarming that the Society, representing the lawyers of this country, is part of the movement to change the name of New Zealand without due legal and democratic process.
The Review is independent in name, certainly, but when it comes to issues relating to the Treaty of Waitangi, there is a palpable feeling that the Review is slanted to a certain outcome. There are the little things like the name of our country, and then there is the reason for the Review. The Society poses the question: Why is the Review happening? It then lists a number of reasons including:
The Law Society wants to:
· Strengthen the profession’s commitment to the bi-cultural foundations of Aotearoa New Zealand.
That clearly states an ongoing existing commitment to strengthening the bi-cultural foundations of 1840, as opposed to the reality of a multicultural society in 2023.
Judge the language of the Draft Terms of Reference and the other documents for yourself.
Draft terms of reference
The Draft Terms of reference document states (page 6):
3. Positioning the legal profession for the future
As well as reflecting on the current performance of the regulatory framework the Independent Review provides an opportunity to look ahead at what is needed to:
– strengthen the profession’s commitment to the bi-cultural foundations of Aotearoa New Zealand. As well (as) Te Tiriti o Waitangi this also encompasses tikanga and traditional legal frameworks.
The objectives of the Review state:
Review objectives (page 7)
The Independent Review will recommend regulatory, organisational and governance frameworks appropriate for an Aotearoa New Zealand context, which includes consideration of:
– commitment to Te Tiriti o Waitangi, tikanga and traditional legal frameworks
– diversity and inclusion, including reflecting Aotearoa New Zealand’s multi-cultural society and bi-cultural foundations (based on Te Tiriti o Waitangi)
The commitment to Te Tiriti is taken as read, the only matter for the review is how that commitment is to be organised.
On page 10 the guiding principles are obligatory and must include:
Guiding principles
Guiding principles underpinning the methodology of the review must include:
– commitment to Te Tiriti o Waitangi
This obligatory guiding principle challenges the whole integrity of the Review. It simply does not allow any genuine consideration of the option of not including a Treaty clause in the proposed legislation. It also uses a slogan that has no meaning either in law or in any other sense.
Final terms of reference (here)
The references to the Treaty are listed below.
Positioning the legal profession for the future (page 6)
– strengthen the profession’s commitment to the bicultural foundations of Aotearoa New Zealand. As well Te Tiriti o Waitangi, this also encompasses tikanga and traditional legal frameworks
Review objectives (page 7)
6. A commitment to honouring Te Tiriti o Waitangi and the bicultural foundations of Aotearoa New Zealand, including Te Ao Māori concepts
Scope (page 7)
What role Te Tiriti o Waitangi and biculturalism plays in the statutory framework, and in organisational and governance arrangements
Governance (page 10)
The Law Society currently has a two-tier governance structure, with a Council delegating a range of functions to an executive Board. The review will examine: – what does fit for purpose governance look like for regulatory and for representative functions? – including diversity, required competencies, a commitment to honour Te Tiriti o Waitangi, and the extent to which regulatory functions should be governed by elected members.
Guiding principles (page 11)
Guiding principles underpinning the methodology of the review must include:
– commitment to Te Tiriti o Waitangi
The Review
The Review itself Regulating Lawyers in Aotearoa New Zealand (March 2023) is found (here)
The main part of the report discusses the Treaty at page 93. There is an immediate acknowledgement that the Panel is limited by its terms of reference:
Te Tiriti o Waitangi and the statutory framework
Our terms of reference require us, as a review objective, to consider changes needed to promote “a commitment to honouring Te Tiriti o Waitangi and the bicultural foundations of New Zealand, including Te Ao Māori concepts”.
As stated earlier, that sums up the tenour of the whole review.
The Panel states: (page 93)
We support a stand-alone Te Tiriti section in a new regulatory framework for lawyers. It would signal the importance of Te Tiriti to New Zealand’s constitution and legal system, and would guide how the regulator engages with the profession and the public and fulfils its functions. It would also bring the regulatory framework into line with other Acts establishing statutory bodies performing public functions.
Before signalling the importance of the Treaty in New Zealand's constitution and legal system, would it not be more appropriate to consider the actual law relating to the Treaty and its principles and then assess the role it plays and its importance in our constitution and legal system?
How can the "principles of the Treaty" guide the regulator if they have not been identified and the law considered to see if they have any relevance to the practice of law?
The same comment applies to the last reason given. What is the point of bringing the Society into line with other statutory bodies without first considering the law relating to the Treaty, and whether a Treaty clause is appropriate for a non-Crown entity where there is no Crown asset that might be subject to a Treaty claim? And, why was there no assessment of the impossible burden that would be placed on Society members by compelling them to "give effect to" - whatever that means - to the "principles of the Treaty" - whatever that means?
The views of submitters on Te Tiriti within the Act
35 per cent of survey respondents supported the incorporation of Te Tiriti in the regulatory framework. Support was also expressed in many email submissions, including from a wide range of representative bodies (eg, the New Zealand Bar Association, the Community Law Centres, Te Hunga Rōia Māori, the New Zealand Law Students’ Association, the New Zealand Women’s Law Journal, NZ Asian Lawyers, and the Asian Legal Network).
The submission from Te Hunga Rōia Māori explored in some detail the role of the law (and lawyers) in the marginalisation of Māori and Aotearoa New Zealand’s first system of law. It pointed out that the Law Society, which was established in 1869, has failed in its duties over that period and there has been a loss of trust by Māori in the regulator. It submitted that the purpose statement of the Act should make reference to upholding Te Tiriti and that the Law Society (or regulator) should be bound by its text and governed accordingly.
A joint submission from five women lawyers’ associations highlighted the significant disparity that exists for Māori within the legal profession. Their submission also highlighted the recognition of tikanga as part of the common law and the expectation the regulator and profession will need to adapt. It noted that all these factors call for a change in rethinking the regulatory framework and the adoption of a partnership approach with Māori:
For these reasons, the Act should be amended to expressly incorporate Te Tiriti with an operative reference which requires those exercising functions or making decisions to give effect to Te Tiriti. Without this, we don’t think there will be any meaningful change.
44 per cent of survey respondents opposed the incorporation of Te Tiriti in the Act. Their views spanned a broad spectrum, with the following submission summarising the position of a small but vocal minority:
The Society should not promote the inclusion of upholding the Treaty in the purpose statement in the Act (s 3) … It would extend separatism, or the potential for separatism, to the way the profession is regulated and represented, and the way lawyers deal with individual members of society. The Society should take the exactly opposite tack. It should advocate for equality under the law.
Many submitters expressed concern about the risk of uncertainty being generated by a Treaty clause and what its practical effects would be.
This summary of the views of submitters shows that only 35 per cent of submitters supported the incorporation of Te Tiriti in the new legislation, whereas 44 per cent were opposed. That suggests that 21 per cent had no view. In other words, the Treaty clause was adopted because 35 per cent supported it.
The submission from Te Hunga Rōia Māori lists their long-standing grievances, but their solutions ignore the law. What does "upholding the Tiriti" mean when the Society is not a party to the Treaty and none of its articles refer to the practice of law? How can the Society or regulator be bound by the text of the Treaty (which of the two texts?) when the Treaty itself is not binding in law? Certainly there may be complaints, but surely it would be better to assess the complaints and then look for solutions, rather than adopting a meaningless Treaty clause that is nothing more than virtue-signalling.
The joint submission from 5 women lawyers suggested several reasons for including the Treaty clause, but were any of them considered and assessed by the Panel? Did the Panel give any thought to what "adopting a partnership approach with Maori" means?
The "vocal minority" that considered that the provision would extend separatism and that the legislation should advocate for equality under the law, were afforded a mention. This is the only reference to "equality of all people before the law" that has emanated from the Panel.
The final comment hit the nail on the head: Many submitters expressed concern about the risk of uncertainty being generated by a Treaty clause and what its practical effects would be. Were those risks and the practical effects of the clause ever considered by the Panel?
Recommendation: Incorporate Te Tiriti in the Act: (page 94)
In our view, a new statute should incorporate Te Tiriti o Waitangi into the framework for regulating lawyers. Te Tiriti has a unique constitutional status within the legal system of Aotearoa New Zealand. Using Te Tiriti to guide the interpretation and administration of a statute is not a radical step. It replicates the approach used in over 60 other pieces of legislation. New Zealand’s Legislation Guidelines require legislation to be consistent with the principles of the Treaty.
- Te Tiriti itself and its articles are not part of the law of New Zealand as the rights and obligations have not been incorporated into New Zealand Statute law. That has been decided by the New Zealand courts and the Privy Council. This is the most important fact about the Treaty. (Details are here.)[The Treaty of Waitangi Act 1975 lists the two versions of the Treaty in Schedule 1 and they are referred to in the body of the Act. However there is no operative clause that makes the Treaty articles binding in New Zealand law. The Waitangi Tribunal bases its findings on the “principles of the Treaty”.]
- Te Tiriti has not
been used as a guide to interpret statutes.
Certain statutes that relate to assets of Crown entities have a Treaty
clause which requires compliance with Treaty principles.
- The LDAC Legislative guidelines 2021 make it clear that the Treaty principles only apply to legislation which impacts on the relationship between the Crown and Maori.
- Private organisations like the New Zealand Law Society were not parties to the Treaty, and are not Crown entities that have assets that may be subject to a Treaty claim. Likewise, members of the Society have no obligations in respect of the Treaty. Their obligations lie with their clients, the courts and the rule of law.
- Surprisingly, nowhere in the Review is there any consideration of what the “principles of the Treaty” actually are.
Operative clause
The following operative clause is proposed:
We propose the following operative provision.
A Tiriti o Waitangi section in the new Act:
All persons exercising powers and performing functions and duties under this Act must give effect to the principles of Te Tiriti o Waitangi.
Additional comments
I have already pointed out that the terms of reference required the Panel to consider changes needed to promote “a commitment to honouring Te Tiriti o Waitangi". There was no option to make no changes and to retain the status quo, or even to make changes other than “a commitment to honouring Te Tiriti". In other words, the terms of reference were highly loaded to achieve a specific outcome.
Uncertainty
It is interesting that “many submitters expressed concern about the risk of uncertainty being generated by a Treaty clause and what its practical effects would be”. That is not surprising. References to the Treaty in all documents relating to the Review and in the Review itself refer to the Treaty in general, meaningless slogans. There is the need to “honour Te Tiriti”, “to give effect to the principles of Te Tiriti”, “incorporate Te Tiriti", and a “commitment to Te Tiriti”. The Te Hunga Rōia Māori even submitted that the Act “should make reference to upholding Te Tiriti and that the Law Society (or regulator) should be bound by its text and governed accordingly”.
It would be interesting to ask the members of the Review Panel individually for an explanation of the terms that they used when referencing the Treaty. There seems to a concerning lack of understanding of the law relating to the Treaty.
For instance, what does Te Tiriti mean? Is it simply the te reo word for the Treaty? Or is it the Maori version of the Treaty as set out in Schedule 1 of the Treaty of Waitangi Act 1975. There are serious differences between the Maori version and the English version.
Some comments about the Treaty may be useful.
Waitangi Tribunal
- The Waitangi Tribunal is not a court of law. It is a commission of inquiry. (Clause 8 Schedule 2 of the Act)
- The Tribunal’s
statutory functions are limited to inquiring into claims and making
recommendations based on breaches of the “principles of the Treaty". (Section 5)
- The Treaty of Waitangi Act failed to include an operative clause* empowering the Tribunal to define “the principles of the Treaty”. For the past 48 years the Tribunal decisions and recommendations have been ultra vires its actual statutory powers.
* The Note and the Preamble (recitals) treat the principles as already being in existence.
- The Tribunal’s decisions on what constitute “principles of the Treaty”, besides being ultra vires, are only recommendations. They are not binding on the government, on parliament, on the courts, or in law. The Tribunal has also held that the principles that it identifies only apply to that particular claim and in the particular circumstances of that claim.
- Even if the Tribunal had the power to define the principles of the Treaty, its decisions would only be relevant within the Tribunal’s jurisdiction.
Despite the above, it has become commonplace for the “principles of the Treaty”, as defined by the Waitangi Tribunal, to be adopted as part of the jurisprudence of Treaty principles and treated as binding. This even extends to the government and to Cabinet papers.
The expression “principles of the Treaty” based on decisions of the the Tribunal has also been wrongly included in Treaty clauses in legislation. Because it is part of a statute the provision is legally binding, but totally inappropriate. See for instance the Pae Ora (Healthy Futures) Act 2022 discussed here.
Treaty clauses or similar have also been wrongly included in governance documents of private organisations. This misuse of Treaty principles has nothing to do with the actual Treaty itself but is a gratuitous and mistaken imposition of obligations that do not exist. (See here.)
Treaty clauses
Treaty clauses came into being in 1986 with a clause being incorporated in The State-Owned Enterprises Act 1986:
9. Treaty of Waitangi - Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.
Other Treaty clauses followed with similar wording. The wording recommended in the New Zealand Law Society’s Independent Review is to “give effect to the principles” of the Treaty.
The problem is that in 1986, when the State-Owned Enterprises Act was passed, there were no such "principles" recognised in law. The Treaty itself had articles, but no principles. The Waitangi Tribunal had defined a few principles in considering claims post 1975 but as those definitions were provided by a commission of inquiry they were not binding in law.
In any case the Treaty and its articles are not binding in New Zealand law. How, therefore can one have “principles” of a Treaty which does not exist in New Zealand law, when the principles themselves do not do not exist in their own right?
The Lands case
The Court of Appeal acknowledged that the Treaty and its Articles were not binding in New Zealand law because the rights and obligations in the Treaty had not been incorporated into New Zealand statute law. The Privy Council (Hoani Te Heuheu Tukino v. Aotea District Maori Land Board [1941] A.C. 308) and Turner J. in In re The Bed of the Wanganui River [1962] N.Z.L.R. 600, at 623, have ruled on the matter.
The Court considered the Waitangi Tribunal’s views on what constituted
principles, and accepted correctly that they were not binding on the Court. It was therefore clear to the Court of Appeal
that the “principles” did not exist in any legal sense.
If the judiciary has been able to play a role to some extent creative, that is because the legislature has given the opportunity.
The courts were effectively invited by Parliament to be creative and invent a list of legal principles that did not exist at that time, and then to decide if those principles had been breached.
Not only were the courts required to “make law” by defining the principles of the Treaty, they were doing so, in many cases, many years after the events that breached the principles of the Treaty had occurred. In other words they were making law that was to be retrospectively applied.
It is concerning that such loose legislation was allowed to be enacted, and that our highest courts considered a whole series of such Treaty clause cases without any consideration of the shortcomings of the legislation.
Labour government 1989
Because of concern about the generous interpretation the Court of Appeal had given to the "principles of the Treaty" in the Lands case, the Lange Labour government came up with its own guidelines as to what constituted the principles of the Treaty. They were:
- The Kawanatanga Principle recognises
the right of the Government to govern and to make laws.
- The Rangatiratanga Principle recognises the right of iwi to organise as iwi and, under law, to control the resources they own.
- The Principle of Equality recognises that all New Zealanders are equal before the law.
- The Principle of Reasonable Co-operation recognises that both government and iwi are obliged to accord each other reasonable co-operation on major issues of common concern.
- The Principle of Redress acknowledges that the Government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.
These principles were intended as guidance only and not to be considered an official statement of the law.
Treaty principles as defined by the courts
Defining the principles of the Treaty has not been an easy task for our courts. As Somers J stated at page 19 of his judgment in the Lands case:
The difficulty that does arise is that s.9 does not refer to acts of the Crown inconsistent with the Treaty, but to acts inconsistent with its principles. The identification of those principles is not easy.
Cooke P stated that the differences in the texts of the two Treaty versions did not matter. He added: “What matters is the spirit.”
Richardson J stated at page 14 of his judgment:Whatever legal route is followed the Treaty must be interpreted
according to principles suitable to its particular character. Its history, its form and its place in our
social order clearly require a broad interpretation and one which recognises
that the Treaty must be capable of adaptation to new and changing circumstances
as they arise.
Unfortunately the courts have not helped the situation by treating the principles as a vague concept of "spirit" or "a matter of honour" or a "solemn compact" that transcends the law and is open to ongoing interpretations depending on future circumstances. However, the courts have been quite clear that the principles are only triggered by a Treaty clause in legislation affecting a Crown entity with assets that are, or may be, subject to a Treaty claim.
Guide to the principles of the Treaty
The Ministry of Maori Development's Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal summarises the views of the courts and the
Waitangi Tribunal on what they consider to be the principles of the Treaty. I have not referred to the Tribunal’s views
as the Tribunal is a commission of inquiry and its findings are limited to the claim before it. They are not binding in law.
In summary, the following principles are identified. They all relate to court cases involving Crown entities and Treaty claims in respect of property or taonga under Article 2 of the Treaty.
- The duty to act reasonably, honourably, and in good faith.
- The duty to make informed decisions.
- The principle of active protection.
- The principle of redress
See here for more details of the court decisions.
The essential nature of Treaty clauses
Treaty clauses supposedly represent the spirit of the Treaty and the requirements of the relationship between the parties to the Treaty, the Crown and Maori. Specifically the clauses were originally inserted into legislation which affected a Crown entity and could involve dealings with property of any sort which might be considered property or a taonga/treasure of Maori under Article 2.
The principles of the Treaty are not binding in law in any general sense. All of the decisions by our courts relate solely to the effect of a certain Treaty clause, in a certain statute, in a certain set of circumstances. They are not of general applicability as a principle of law.
In fact, to be perfectly frank, the need to comply with principles of the Treaty through a Treaty clause places an impossible burden on a Crown entity because the meaning and the extent of the principles is not known until a court has considered and passed judgment on its actions.
Non-Maori individuals and organisations in New Zealand owe no obligations to Maori under the Treaty as they were not a party to the Treaty. It follows that if the principles of the Treaty represent the spirit of the Treaty then they must be limited to the relationship between Crown and Maori, and more particularly in respect of the Article 2 guarantee.
Which Crown?
We all know that the Treaty parties were the British Crown and Maori. On the signing of the Treaty New Zealand became part of the British colony of New South Wales and part of the British Empire. The subsequent assertions of sovereignty resulted in New Zealand being erected as a separate colony in its own name in 1841. As part of the Empire, New Zealand was ruled by the British Crown and that Crown was responsible for any Treaty grievances. It was not until the New Zealand Constitution Amendment (Request and Consent) Act 1947, which separated the New Zealand Crown from the British Crown, that New Zealand had the option of adopting the Treaty of Waitangi into New Zealand legislation. The Treaty and its rights and obligations were not incorporated into New Zealand statute law and, therefore, never became part of New Zealand law.
However, the Treaty of Waitangi Act in 1975 created a claims system for the breaches of the “principles of the Treaty”. The New Zealand Crown for the first time accepted responsibility for breaches of the principles of the Treaty, rather than breaches of the Treaty itself.
In 1986 Treaty clauses were inserted in legislation relating to Crown entities and their assets requiring compliance with the principles of the Treaty. This gave the courts the opportunity to define the principles in the case before it, and consider if they had been breached.
As a result some very limited jurisprudence has built up around “the principles of the Treaty’ as defined by the courts.
Voluntary acceptance of Treaty obligations
Unfortunately, the law that applies to the Treaty itself, and to the concept of the “principles of the Treaty”, has been deliberately ignored in a nationwide movement to have the Treaty imbedded in daily life in New Zealand. It is driven, naturally, by activists, but much of the support comes from academics, lawyers, the judiciary, civil servants and the government. It is like an epidemic that has infiltrated and infected every aspect of our lives In New Zealand. It has overwhelmed the concept of the rule of law, with the law relating to the Treaty being ignored, with democracy being replaced by preferential treatment based on race, and baseless slogans replacing solid, hard facts.
There is mounting pressure on every part of our society to adopt the “Te Tiriti framework” or the “principles of the Treaty” even though the Treaty itself, was signed in 1840, and is not itself part of our law.
The “principles” are now impossible to define because the whole concept has been tainted by the inclusion of the Waitangi Tribunal’s non-binding findings, and hijacked by activists with their own views on what the principles should be. The facts have been swamped by the myths.
Lord Bingham, famous for his definition of the rule of law, would be aghast at the drafting of Treaty clauses. One of his major requirements was that “the law must be accessible and so far as possible intelligible, clear and predictable”. The proposed provision of the Independent Review meets none of those requirements. Not a single person associated with the Society would have any idea what the “principles of the Treaty” means. No lawyer could tell them what the expression means because the law on the issue has been buried by the slogans. Even the actual law is unknowable, because, as the courts have made clear, the principles do not exist as a finite set of rules.
It is interesting to muse what sort of advice the Society would give to new practitioners desperate to ensure that they comply with the new law and give effect to the “principles of the Treaty”.
What definition of the “principles” would they receive from the Society?
And what steps would they have to take to ensure that they afforded those clients with Maori heritage the special treatment that is required by giving effect to the “principles”?
