Councillor Paniora and others have given several reasons why the refusal to have karakia was unlawful in some way. These reasons are considered below.
Treaty based claims
These reasons stated are the call to “Honour the Treaty”, “uphold the principles of the Treaty”, “the Treaty is part of the law of the land” and “we are partners in the Treaty”.
Treaty of Waitangi
It may come as a surprise but the Treaty of Waitangi and its Articles are not part of New Zealand law. It is an International Treaty and does not become binding until its rights and obligations are incorporated into statute law in New Zealand. That has never been done, presumably because the English and Maori versions, which together constitute the Treaty, contain fundamentally conflicting provisions. See https://thetreatyfacts.blogspot.com/p/the-articles-of-treaty-are-not-binding.html
(Note that the Treaty is referred to in the Schedule to the Treaty of Waitangi Act 1975. However there is no operative clause making the rights and obligations under the Treaty binding on the Crown.)
Principles of the Treaty
To enable claims to be made for breaches of the Tre
aty, the Waitangi Tribunal was set up by the Treaty of Waitangi Act 1975 to hear claims from Maori in respect of actions of the Crown which created prejudice and were “inconsistent with the principles of the Treaty of Waitangi". There were no principles in the Treaty, in the Act, or anywhere else. None have ever been formally set down by the government. However over the years the Tribunal has defined, for its own purposes, some of the principles. The problem is that the conclusions of the Tribunal, which has the status of a commission of inquiry, not a court of law, are recommendations only. They are not binding on the government, nor Parliament nor the courts. The Tribunal does not make law.
See https://thetreatyfacts.blogspot.com/p/the-treaty-of-waitangi-act-1975.html
The upshot is that the principles of the Treaty do not form part of law unless what is called a "Treaty clause" is included in a New Zealand statute. Such a clause places a responsibility on the Crown “to take into account the principles of the Treaty of Waitangi” or similar wording. Over 60 statutes have a Treaty clause. Most of them are general in nature which creates huge difficulties for the courts in deciding what the principles are. The Court of Appeal has found that the principles derive from the relationship between the parties to the Treaty in respect of the Crown’s guarantee under Article 2 of the Treaty. See: https://thetreatyfacts.blogspot.com/p/treaty-clauses-and-decisions-of-courts.html
Treaty clauses can only bind the Crown because it was a party to the Treaty and it bears the responsibilities under Article 2.
Section 4 of the Local Government Act 2002 is a Treaty clause. It recites that the Crown has responsibilities under the Treaty and then, somewhat surprisingly, purports to impose some of those specific obligations on local authorities. None of those obligations relate to a local authorities procedures for meetings.
In short, there is no "principle of the Treaty" relating to karakia or tikanga.
Co-governance
The argument is is often advanced that "co-governance" between Maori and the Crown works well in practice.
However, the name is only applied to situations where Maori and the Crown co-manage certain natural assets in which Maori have established rights. An example is the Waikato River. Chris Finlayson, former Treaty Settlement Minister for the National government, says that understanding ‘co-governance’ as a term is a vital starting point, and adds, referring to the current examples:
“Getting a clear definition of co-governance is very important. People say co-governance should really be ‘co-management’."
"Co-governance" in the form advanced by activists means shared government, whereby sovereignty is effectively shared between Maori and the Crown. such a situation is impossible because sovereignty is absolute and cannot be shared.
It also seems that the claims for co-governance are founded on the recommendations of the Waitangi Tribunal in respect of Stage1 of the Te Raki (Northland claim). The Tribunal concluded that Maori did not cede sovereignty to the Crown in the Treaty and that the Treaty set up parallel governments with the chiefs exercising tino rangatiratanga over Maori and the Crown exercising kawanatanga over the settlers. The governments were to be completely separate, like apartheid, and where the two crossed over the issues were to be decided on a case by case basis. There was no shared government.
These recommendations were made in 2014 and have not been acted on by the government. They have no status in law.
In any case, it is now accepted by the Court of Appeal that sovereignty was vested in the British Crown in 1840 when Captain Hobson asserted sovereignty over the whole of New Zealand by proclamation, three months after the first signings of the Treaty at Waitangi, and in the subsequent erection of New Zealand as a separate colony in its own right. That issue is now beyond dispute and has been accepted by the Waitangi Tribunal in its Te Raki Stage 2 findings in Decembers 2022.
Partnership
The "partnership" claim is based on some loose words of the Court of Appeal in what was called the Lands case in 1989. The five judges considered that the relationship between the Crown and Maori under Article 2 – the Crown guarantee in respect of land, dwellings and taonga – was "akin to partnership" in that it created joint obligations of honesty, good faith and reasonableness.
A partnership to govern the country was not contemplated by the judges. They all confirmed that sovereignty was vested in the Crown. Cooke P summed it up tersely:
In brief the basic terms of the bargain were that the Queen was to govern and the Maoris were to be her subjects; in return their chieftainships and possessions were to be protected, but sales of land to the Crown could be negotiated.
Articles 1 and 3 of the Treaty
As stated above, the principles of the Treaty only relate to Article 2 and the relationship between the Crown and Maori chiefs in respect of the guarantee relating to land, dwellings and taonga. They are not relevant to matters relating to the running of the government or matters which involve all the people of the country.
Once sovereignty was ceded to the Crown it had the right to run the country in the way that it deemed appropriate for the benefit of all of its citizens. In the day to day government of New Zealand, Maori have no special rights under the Treaty. As Article 3 states, they have the same rights as British (now New Zealand) citizens. In the Lands case Cooke P in the Court of Appeal stated:
…..the Mäori people have undertaken a duty of loyalty to the Queen, full acceptance of her Government through her responsible Minister, and reasonable cooperation.
In the Whales Case in 1995 Cooke P acknowledged the various interpretations of kawanatanga in Article 1 and added:
Clearly, whatever version or rendering is preferred, the first article must cover power in the Queen in Parliament to enact comprehensive legislation for the protection and conservation of the environment and natural resources. The rights and interests of everyone in New Zealand, Maori and Pakeha and all others alike, must be subject to that overriding authority.
The Treaty Resource Centre agrees:
“In some circumstances, including especially in cases concerning criminal law, the Courts have expressly stated that the Treaty is not relevant to the case at hand. These cases emphasize the application of legislation to all New Zealanders whether they are Mäori or not, and that Parliament’s law-making capacity does not derive from, nor is it limited by, the Treaty of Waitangi.”
Local government operates in New Zealand as a branch of the sovereignty of the Crown and it applies to all people equally. The only special treatment for Maori is to be found in section 4 of the Local Government Act 2002 and in some provisions of the RMA. None of those relate to karakia or tikanga.
The rule of law
As stated above, Councillor Paniora was reported as follows:
Paniora accepted members of the public gallery attending a council meeting were not able to interject in meetings. However, she said tikanga stood outside that and a karakia was part of honouring the Treaty of Waitangi which was part of the law of the land and Māori lore.
As discussed, honouring the Treaty of Waitangi is not part of the law of the land. “Maori lore” is not explained, but if it relates to Maori folklore then clearly it has no relevance.
Supreme Court
Tikanga is being acknowledged to some extent by the Supreme Court. In the recent Peter Ellis case the Supreme Court discussed the issue of tikanga and its role in the common law at some length. The case was not decided on the basis of tikanga but the judges took the opportunity to express their views on its role in the common law. A summary of those views can be seen here:
https://www.russellmcveagh.com/insights/october-2022/whakamaramatanga-series-supreme-court-considers-place-of-tikanga-in-the-law-judgment-on-continuat
In brief:
· The Court was unanimous that tikanga has been and will continue to be recognised in the development of the common law of New Zealand in cases where it is relevant. Notably, this was simply a confirmation by the Court, rather than a new development.
· In a common law context, Williams J noted that the relevance of tikanga to a dispute may depend on the identity of the parties, the dispute's particular setting, or any other reason. It may also be that the nature of the dispute raises wider policy questions which a tikanga perspective may help to answer. Williams J suggested tikanga may be relevant if an area of the common law is developing, and such development would benefit from a consideration of relevant tikanga principles.
Tikanga can only be an aid in matters where Maori customary procedures are relevant to the issue before the court where the common law (judge-made) is involved. It is of no relevance where the situation is covered by legislation which states the law clearly.
Gary Judd KC
Gary Judd's excellent essay on whether tikanga is law, considers in some detail the comments of the Supreme Court in the Ellis case.
He is highly critical of some of the comments of the Court, especially the one that suggests (obiter dicta - a non-binding comment) that tikanga is new Zealand's "first law". He carefully points out that a set of beliefs of a particular group cannot be regarded as law. He adds:
Let it be clear: as New Zealand’s Bill of Rights affirms, everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference. Everyone also has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinion of any kind in any form. Further, every person has the right to manifest that person’s religion or belief in worship, observance, practice, teaching, either individually or in community with others, and either in public or in private.
Therefore, anyone who subscribes to tikanga beliefs, and wishes to manifest them, is perfectly entitled to do so, without interference.
However, and this relates to Councillor Paniora:
Only when beliefs produce actions harmful to others do questions arise whether the law should intervene. The intervention, which then may occur, is not because of the beliefs but because of the harmful actions.
Just as there should be no interference with the adoption and holding of tikanga beliefs, so also there should be no interference with others’ freedom of thought, conscience, religion, and belief. This latter interference may occur when people in positions of power seek to impose tikanga beliefs on those who do not hold them.
In the karakia incident, Councillor Paniora considered, wrongly, that her belief in tikanga overrode her obligation to comply with the law in the form of standing orders, and that it also overrode her duty to comply with her declaration as a councillor to comply with the law relating to local authorities.
A pre-meditated attack on Maori
This claim of John Tamihere cannot be substantiated. Mayor Jepson and his council simply applied the law applying to the running of council meetings. In doing so they emphasised the equality of all the people of the district, complied with standing orders and the Local Government Act 2002, and complied with the rule of law.
Indigenous people
The claim that Maori have special rights because they are indigenous people, the tangata whenua, is probably based on the United Nations Declaration of the Rights of Indigenous People. This is a red-herring and can be ignored for several reasons:
It is a declaration not a treaty and is not binding in law. Even if it were a treaty it would not be enforceable in New Zealand unless Parliament has incorporated its obligations in legislation.
Maori are not indigenous to New Zealand. Their arrival in New Zealand is documented and acknowledged. Moriori inhabited New Zealand prior to Maori, and there were reputedly earlier inhabitants.
Labour’s Prime Minister Helen Clark had refused to adopt the Declaration, because it didn’t fit with our Treaty settlement framework. The advice received from Crown Law Office was that four provisions of the Declaration were fundamentally incompatible with New Zealand’s constitutional and legal arrangements.
In her address to the United Nations on 13 September 2007, Rosemary Banks, New Zealand’s Permanent Representative to the United Nations, pointed to difficulties with a number of provisions as the reason why New Zealand could not support the Declaration.
In particular, she pointed to four provisions in the Declaration that were fundamentally incompatible with New Zealand’s democratic processes, legislation and constitutional arrangements, the Treaty of Waitangi, and the principle of governing for the good of all its citizens. (See here)
In 2010 National’s Prime Minister John Key – under pressure from his Maori Party coalition partner - authorised the adoption of the Declaration. However, he reaffirmed “the legal and constitutional frameworks that underpin New Zealand’s legal system", noting that those existing frameworks define the bounds of New Zealand’s engagement with the declaration.
Article 46 of UNDRIP includes limitations on the role of UNDRIP:
1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. (Underlining added)
The mandate of mana whenua as the traditional governors
Councillor Paniora mentioned in an interview that Maori were “mana whenua” and had special rights. This probably originates from the recent Local Government New Zealand Guide to Standing Orders 2022, on page 6: (Note: You will need a te reo dictionary)
Acknowledging the mandate of mana whenua as the traditional governors
Iwi and hapū have a mandate based on their role as the indigenous governors of the land. This is quite different from the ‘stakeholder’ status given to many local organisations kaunihera works with. It is a status that would exist even if it wasn’t enshrined in Te Tiriti o Waitangi.
The Guide goes on to state:
It is incumbent on local authorities to work with relevant iwi and hapū to determine how best to recognise their status. It then presents suggestions as to how local authorities can recognise the mandate of mana whenua.
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