The New Zealand courts have to bear an enormous amount of responsibility for elevating the concept of "the principles of the Treaty of Waitangi" into a political dogma that is threatening the democratic basis of our country.
It appears that in 1975 and in 1985 and 1986 the Third and Fourth Labour governments overcompensated for the failure of the Crown to remedy serious breaches of the Treaty during the previous almost century and a half.
They did this by setting up in the Treaty of Waitangi Act 1975 what might be called a disputes tribunal under the guise of the Waitangi Tribunal to make recommendations to the government about the Crown's future breaches, not of the Treaty but of an entirely new concept, the principles of the Treaty.
In 1985 the Treaty of Waitangi Act was amended to include historic breaches as well.
A year later the first "Treaty clause" was included in New Zealand legislation, namely the State-Owned Enterprises Act 1986. The effect of the clause was to prevent the Crown from acting in any manner that is inconsistent with the principles of the Treaty of Waitangi.
Again, the Treaty itself was overlooked and the concept of the "principles of the Treaty" became the standard by which the actions of the Crown were to be judged.
The principles did not exist. Certainly, by 1986 the Waitangi Tribunal had made a few recommendations where some principles of the Treaty had been identified, but they were based solely on the facts of the particular claim before the Tribunal. In any case, they were findings of a commission of inquiry and were only recommendations to the government. They were not binding on the courts or in any way.
The legal situation in 1986 can be summed up as follows:
- The Treaty obligations and rights in the three Articles of the Treaty were not binding in New Zealand law as they had not been included in any New Zealand statute making them enforceable in law.
- The "principles of the Treaty of Waitangi" did not exist in any treaty (including the Treaty of Waitangi) or in any legislation. It was an artificial concept, not defined in any legislation, and presumably was meant to represent the "essence" of the Treaty of Waitangi.
- The Treaty of Waitangi Act 1975 introduced the concept of the "principles of the Treaty of Waitangi" as a basis for the Waitangi Tribunal (a commission of inquiry) for making recommendations to the government on claims by Maori of breaches of the principles. The principles were not defined in the legislation. The Tribunal assumed the role - without legal authority - of identifying what it considered to be the principles of the Treaty. (See here)
- In 1986 a "Treaty clause" was inserted in legislation, the State-Owned Enterprise Act 1986.
The Lands case
The Lands case(New Zealand Maori Council v Attorney-General [1987] 1NZLR 641, (1987) 6 NZAR 353, so-called because it dealt with Crown land, played a huge role in the future of New Zealand and its constitutional structure.
For the first time the courts of New Zealand had to consider the meaning of a Treaty clause that had been included in the State-Owned Enterprises Act 1986. Section 9 stated:
Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.
Inept drafting
The drafting of this Treaty clause matched the drafting of the Treaty of Waitangi Act 1975 in its ineptitude. The clause includes an obtuse negative obligation based on compliance with principles that did not exist, relating to a Treaty that was not adequately identified, and was not binding in New Zealand law.
The "Treaty of Waitangi" was not identified
The first issue was the reference to "the Treaty of Waitangi" in section 9. But there was no definition of "the Treaty of Waitangi" in the SOE act as it was enacted in 1986. (here)
This may appear at face value to be a non-issue. However, the Treaty was not part of New Zealand law. Not only that, there were two versions of the Treaty, one in English and one in Maori. It was unclear which version of the Treaty was being referred to in section 9.
The Waitangi Tribunal had adopted (since 1975) a policy of treating the Treaty of Waitangi as referring to the English version and te Tiriti o Waitangi as referring to the Maori version. So, was the reference to the the "Treaty of Waitangi " in section 9 of the SOE Act a reference to the English version only?
However, the Treaty of Waitangi Act 1975 had defined the "Treaty" in section 2 of that Act:
"Treaty" means the Treaty of Waitangi as set out in English and in Maori in the First Schedule to this Act:
Parliament failed to provide such a definition in the the SOE Act.
Therefore in 1986 the only definition of the "Treaty" in New Zealand law was the one in the Treaty of Waitangi Act 1975. From various comments in the judgments in the Lands case it appears that the Court of Appeal took judicial notice of that version of the Treaty.
The situation was clarified in later versions of the State-Owned Enterprises Act when Treaty of Waitangi in section 9 was hyper-linked to the definition of the Treaty of Waitangi in Schedule 1 of the Treaty of Waitangi Act. It is most unlikely that hyper-link was in place in 1987 when the Lands case was before the courts.
[Note that in 1986 the fundamental error in the Mäori version of the Treaty in the First Schedule to the Treaty of Waitangi Act 1975 had been amended and corrected.
See: https://thetreatyfacts.blogspot.com/p/treaty-of-waitangi-acts-fundamental-flaw.html ]
No operative clause
Presumably the intention of section 9 was to place a clear obligation on the Crown. Instead, the clause limits its own scope with the words Nothing in this Act shall permit the Crown etc. That means that the provisions of the Act are to be interpreted to comply with section 9. It is a question of interpretation only. There is nothing in the clause that actually limits the Crown's action in any way. An action taken by the Crown - that is not restricted in the Act - may be performed by the Crown with impunity even if it is inconsistent with the principles.
A simple operative clause obliging the Crown to comply with the principles of the Treaty when performing its functions under the Act would have sufficed.
"In a manner"
Section 9 refers to the Crown not being permitted to act in a manner that is inconsistent etc. It is not the act itself that is being regulated, but the manner in which it is performed. Technically, the Crown is entitled to perform any act provided that its manner of performing it is not inconsistent with the principles of the Treaty.
"Act" of the Crown
The clause specifically refers to an act of the Crown. This is important legislation and it is surprising that breaches of the principles were given such a narrow description. What about omissions? This is how section 6 of the Treaty of Waitangi Act deals with describing breaches:
any act done or omitted at any time on or after 6 February 1840, or proposed to be done or omitted, by or on behalf of the Crown,—and that the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission, was or is inconsistent with the principles of the Treaty,
No principles in existence
As in the Treaty of Waitangi Act, the assumption in section 9 appears to be that the "principles" were already in existence. They were not. The only principles in 1987 were those that the Waitangi Tribunal had identified since 1975, but they had no binding force in law.
It was clear, therefore, that in section 9 the courts were faced with a hopelessly drafted clause that purported to place obligations on the Crown not to act in a manner inconsistent with the principles of the Treaty of Waitangi. However, the Treaty itself was not adequately identified, the obligations and rights under the Treaty were not binding in New Zealand law, and the "principles" of the Treaty did not exist
No authority to define the principles
If the principles of the Treaty did not exist in law, how was section 9 to be applied?
The Court was faced with a dilemma. There were no principles of the Treaty. The Treaty that they referred to was recognised in New Zealand law in the Schedule to the Treaty of Waitangi Act. However, its obligations had not been not incorporated into New Zealand statute law. Richardson J stated in Lands:
The received view of the law is that the Treaty of Waitangi does not form a part of the municipal law of New Zealand as administered by its Courts except to the extent that it is made so by statute. (See the post: The Articles of the Treaty are not binding in New Zealand law.)
The Court's strategy
Somewhat surprisingly the Court did not consider the fundamental errors in the drafting of section 9. Instead it ignored the obvious defects and rather enthusiastically treated the lack of any defined principles as a specific invitation from Parliament to the Court to invent or to define those principles. In other words the Court considered that it was being invited to step outside its constitutional role and make law.
Cooke P stated at page 28 of his judgment (here):
What is now our-responsibility is to say clearly that the Act of Parliament restricts the Crown to acting under it in accordance with the principles of the Treaty. It becomes the duty of the Court to check, when called on to do so in any case that arises, whether that restriction has been observed and, if not, to grant a remedy.
And on page 29:
Section 9 of the 1986 Act requires the Court to interpret the phrase 'the principles of the Treaty of Waitangi' when necessary.
The role of a court is not to make the law. That is the role of Parliament in our constitution. Only if the provisions of a statute are unclear or ambiguous can the courts intervene and express their view on the interpretation of a provision. In doing so the courts are obliged to apply the principles of interpretation set out in section 5 of the Interpretation Act 1999.
The SOE Act contained no definition or guidance as to what the principles of the Treaty were. The structure of section 9 appears to suggest that "the principles of the Treaty" were already in existence, just as the introduction to the Treaty of Waitangi Act stated that the Act provided for "the observance, and confirmation, of the principles of the Treaty of Waitangi".
No operative clause
Was the Court of Appeal entitled to invent, or at least identify, "the principles", given its constitutional role was limited to interpreting the law but not making the law? The correct procedure would have been to include an operative clause giving the courts the legal authority to identify the principles of the Treaty.
However, it appears that the structure of section 9 was deliberate as all subsequent Treaty clauses refer to the principles as if they already exist.
Retrospective legislation
Under section 7 of the Interpretation Act 1999 enactments do not have retrospective effect unless that is specified in the provision. That means that they can only relate to actions committed after the enactment becomes law. Effectively a Treaty clause invites the courts to rule on breaches of the principles of the Treaty when those principles were not defined or identified in law until the case came before the court.
Criticism
The fact that Parliament drafted such an incomprehensible provision stretches credibility. However, the New Zealand courts’ eager and uncritical acceptance of the unconstitutional role allotted to them must be of considerable concern.
I am not the only one with that view. In the 2004 article Deep divisions over Treaty's matters of principle - NZ Herald Audrey Young reported that the then Labour government had commissioned resource management specialist Owen McShane to redesign the Resource Management Act without references to "prejudice caused by the principles of the Treaty". She also mentioned that: Getting rid of "treaty principles" in legislation was part of the Orewa platform that propelled Don Brash and his National Party back into political contention.
She also reported that Act leader and former Labour Minister Richard Prebble called the principles of the Treaty clause "a piece of accidental law-making of the worst sort", and that Sir Geoffrey Palmer put it in the SOE Act as "window dressing" following discussions between the late paramount chief of Tuwharetoa Sir Hepi te Heuheu and former Prime Minister David Lange.
In the Audrey Young article referred to above, she noted in respect of the Lands judgment:
Even Sir Geoffrey said he had been surprised at the judgment. He told the Herald this week that the clause had had "unexpected consequences".
"It did come as somewhat of a surprise to me that the Court of Appeal read that phrase up rather than read it down," he said, explaining that the court had given the clause "a very wide and generous interpretation".
These days Sir Geoffrey is advocating that Parliament be as precise as it can be over such references.
Criticism by the Chief Justice
The Chief Justice Helen Winkelmann recently made a submission to the Select Committee on the Natural and Built Environment Bill now before parliament. One of her concerns was clause 4:
All persons exercising powers and functions and duties under this Act must give effect to the principles of te Tiriti o Waitangi.
She commented, referring to clause 4 and another clause:
However there are issues of principle and issues of practicality in applying these requirements to courts, and in particular to courts that are hearing criminal proceedings or other enforcement proceedings under the legislation, or that are determining what the legislation (including these provisions) requires of decision-makers, and whether those requirements have been met.
For example, it is difficult to understand what these provisions would require of a court hearing criminal proceedings under Part 10. It seems unlikely that cl 4 is intended to require differences in criminal procedure in such cases, or in the application of the substantive law. If that is right, then providing for cl 4 to apply to a court hearing such proceedings risks creating undesirable uncertainty about the content of the law and its effect.
The implications of cl 4 and (in particular) cl 6(3) for a court hearing an appeal under sch 13 are also unclear, and potentially problematic.
The development of Treaty clauses
Treaty clauses developed in two ways . First, the courts read into the principles of the Treaty concepts relating to the "treasures" of Maori that could never have been anticipated in 1840 when the Treaty was signed. The Treaty has also been elevated to represent a spiritual relationship between two races that is unlimited and extends far into the future.
In addition, later Treaty clauses have included a list of specific obligations imposed on the Crown entity which purport to be obligations arising from the Treaty, but clearly are not. Recently there have been cases where the obligations are expressed as being obligations under the Treaty itself, rather than under the Treaty principles.
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See: Ministry of Health - a case study in racism?https://thetreatyfacts.blogspot.com/p/ministry-of-health.html
New Zealand courts have totally reinvented the Treaty https://thetreatyfacts.blogspot.com/p/new-zealand-courts-have-totally.html
See also the following posts:
