Jenni McManus
Rather than waiting for the select committee process to share their views, a group of 42 King’s Counsel has written to the Prime Minister and Attorney-General, urging them to scrap David Seymour’s Principles of the Treaty of Waitangi Bill.
The group says it has “significant concerns” about the bill and its wider implications for New Zealand’s constitutional arrangements. And not only are the KCs critical of the bill itself but they appear also to be questioning the constitutional right of Parliament to legislate in these circumstances, even if it were minded to do so.
“It is not for the government of the day to retrospectively and unilaterally reinterpret constitutional treaties,” the group says. “This would offend the basic principles which underpin New Zealand’s representative democracy.”
In their view, the bill fails to recognise the impact of colonisation and past treaty breaches on Māori “which have created profound inequality”. Further, the bill would create “significant confusion and uncertainty”, leading to prolonged litigation.
The KCs also take issue with the select committee process, which will follow parliamentary debate and the first reading of the bill.
ACT’s David Seymour, the bill’s sponsor, says sending the bill to a select committee will allow discussion on the treaty to be “democratised” as all New Zealanders will get the opportunity to make submissions and have their say.
The KCs acknowledge the select committee process will “allow for public engagement” but say they are concerned about what they describe as the failure to engage meaningfully and in good faith with Māori as treaty partners, along with “other experts”.
At the heart of their complaint is the bill’s interpretation of Article 2 of the treaty. The KCs say were this interpretation to become law, it would have the effect of retrospectively limiting Māori rights (and presumably alleged treaty breaches) to those that existed in 1840.
If these rights differ from those of other New Zealanders, under Seymour’s interpretation these rights will be recognised only if they have been incorporated into treaty settlements with the Crown.
According to the KCs, this would erase the Crown’s guarantee to Māori of rangatiratanga (chieftainship/self-determination/political authority.) It was also an attempt to exclude the courts “which play a crucial role in developing the common law and protecting Māori and indigenous rights”.
The KCs also take issue with the bill’s interpretation of Article 3: the right to equality. The KCs say this does not recognise the “fundamental” Article 2 guarantee to Māori “of the right to be Māori and have their tikanga Māori recognised and protected by law”.
“As the Waitangi Tribunal has pointed out, people in a liberal democracy can and do have differing rights,” the group says.
Key assumptions
According to the KCs’ letter, the principles of the treaty have already been “developed and applied” over the past 50 years by the courts, the legislature and via the Cabinet manual.
After first appearing in the Treaty of Waitangi Act 1975, “they now shape the way in which the Crown, in specific circumstances, delivers on its obligations to Māori. They include partnership, active protection, equity and redress…
“The treaty principles are designed to reflect the spirit and intent of the treaty as a whole and the mutual obligations and responsibilities of the Crown. They now represent settled law.”
By trying to replace these principles with new ones, the bill “seeks to redefine in law the meaning of the treaty”, the KCs claim. “By imposing a contested definition of the articles, the bill seeks to rewrite the treaty itself.”
Divisive ideologies
As the House prepared to vote for the first time on the bill, other groups joined the KCs in opposing it.
In a statement on its LinkedIn page, the Pacific Lawyers Association said it “unequivocally condemns the bill”.
“As a legal community, we view the bill as being incompatible with the rule of law, Aotearoa’s constitutional jurisprudential history and in contravention of the Crown’s existing obligations to Māori,” the association said.
Further, the group says it promotes divisive ideologies, threatens existing partnerships with Māori and tramples on indigenous rights and interests.
The KCs who signed the letter to Christopher Luxon and Judith Collins KC are:
Nigel Hampton, Sir Hugh Rennie, Sarah Armstrong, Kerryn Beaton, John Billington, Bronwen Carruthers, Margaret Casey, Anita Chan, Nick Chisnall, Jenny Cooper, Tiffany Cooper, Vivienne Crawshaw, Catherine Cull, Dr James Every-Palmer, Karen Feint, Antonia Fisher, Dr Simon Foote, Richard Fowler, Sally Gepp, Stuart Grieve, Stephane Grieve, Dr Rodney Harrison, Tony Hughes-Johnson, Simon Jefferson, Frances Joychild, Lynda Kearns, Julie-Anne Kincade, Alanya Limmer, Ron Mansfield, Stephen McCarthy, Christine Meechan, Julian Miles, Simon Mitchell, James Rapley, Suzanne Robertson, Philip Shamy, Dr Royden Somerville, Anne Stevens, Chris Stevenson, Nura Taefi, Nicholas Till, Peter Whiteside.
The current number of KCs in New Zealand is unclear as they are appointed for life. But between 1907 and June 2024, 364 have been appointed. Within that timeframe, there were about 40 years in which no appointments were made.
0 Comments