In an article in LawNews in issue 40, Gary Judd KC considered a proposal that the Treaty of Waitangi be incorporated into legislation governing lawyers.
Judd considered this proposal to be redundant, when considered against the “superordinate” fundamental obligation to uphold the rule of law in s 4 of the Lawyers and Conveyancers Act. This is not the only redundant proposal contained in the New Zealand Law Society’s ‘own goal’ independent review, but it is the only one I will discuss.
Judd says the framers of any amendments to the Lawyers and Conveyancers Act must act on the principle of equality and reject a “fashionable approach” of suggesting a special place for one racial or ethnic group or another. In saying this, he does not eschew mention of the treaty in the legislation, but he recommends it be designed to underline the principle of equality before the law.
I agree with his summary of the legal effect of the Treaty of Waitangi and won’t repeat it at length. I will moreover assume the reader has read his article.
Judd opines that the treaty did not presage a social revolution. The history that followed the 1840 signing of the treaty is complex and required scholarship to understand (readily accessible nowadays in Waitangi Tribunal reports).
No partnership
As to a partnership between two peoples, that was not what the treaty was about. It was about good governance, property rights and, for Māori, self-determination and protection of their taonga.
As one commentator has observed, to move from the relatively simple prescription in the text of the treaty to a legal order based upon ideas of partnership and special relationships is not done by an ineluctable logic, but by invention (David Round Judicial Activism and the Treaty: The Pendulum Returns (2000) 9 Otago LR 653).
Moreover, some ariki refused to sign up, two notable examples being Te Wherewhero of Waikato and Te Heu Heu of Tuwharetoa. Ranginui Walker has observed that the word of these ariki placed the populous centres of the North Island largely outside the treaty (Ranginui Walker, Ka Whawhai Tonu Matou [Struggle Without End], revised ed, Penguin Books, Auckland, 2004, at 97).
Judd observes that the treaty was not between the Crown and a race. He opines that the promise of the treaty was to protect the rights of individuals, including Māori to their tikanga (citing Dame Anne Salmond’s work published by Newsroom in late 2021). This protection, Judd says, was not of identity, as Māori or non-Māori, but of equality before the law.
He identifies the rule of law as speaking to the proposition that everyone under the law is equal. This is an interesting reading, since equality is not explicitly mentioned in s 4 of the Lawyers and Conveyancers Act (it is mentioned in other legislation, for example the Equal Pay Act 1972 and the Human Rights Act 1993). But Judd’s reading of equality as part of the rule of law is undoubtedly correct.
The late Sir Thomas Bingham, in his masterly survey of the rule of law, says: “Most British people today would, I think, rightly regard equality before the law as a cornerstone of our society.” (Tom Bingham, The Rule of Law, Allen Lane, London, 2010, chapter 5.)
This supposition applies equally to modern-day New Zealanders. As Sir Thomas observes, equality before the law is a relatively recent addition to the common law: the first unequivocal marker was the granting of a writ of habeas corpus to a slave by Lord Mansfield in Somerset v Stewart (1772) Lofft I, 20 ST I (statue topplers, please note).
The treaty was not, and is not, about “iwi versus kiwi”, as Judd observes: such divisive statements posit a false dichotomy. I add that by the Third Article of the Treaty granting to Māori the protection of the Crown and the rights and privileges of British subjects, the treaty affirmed that these things were to be enjoyed by all British subjects in New Zealand. These legal protections, rights and privileges carry over into the modern era and no-one can doubt that they apply equally to all, as part of New Zealand’s legal order.
US interpretations
Equality before the law in an open society may be compared to the so-called equal protection clause of the Fourteenth Amendment to the US Constitution, which in part says: “…nor deny to any person…the equal protection of the laws.”
The word “person”, a hotly contested term in the context of abortion rights in the United States, has been argued by some to refer only to people of colour (a duty on lawyers to promote Māori interests may lead to some to argue for a similarly onesided application).
Abundant evidence from the congressional debates shows the framers of the US Constitution intended the protections to apply equally, to all people. For example, Senator Lyman Trumball, during the congressional debates, spoke of the “great object of securing to every human being within the jurisdiction of the Republic equal rights before the law.” (Quoted by Robert E Bork, A Time to Speak, ISI Books, Wilmington, Del, 2009, at page 356.)
Notions of equality were already alive in the common law world at the time of the signing of the treaty. Just over 100 years later, Dr Martin Luther King carried the torch of equality when he said at the march for integrated schools, on 18 April 1959: “Make a career of humanity. Commit yourself to the noble struggle for equal rights. You will make a better person of yourself, a greater nation of your country, and a finer world to live in.”
The right of equality under the law is firmly established. But some of today’s so-called progressives do not appear to share this spirit, rather they offer divisive ideologies based on identity that “…fracture nations and lead only to their destruction.” (William P Barr, One Damn Thing After Another, Harper Collins, New York, 2022, at page 563.)
Rule of law
Looking at Judd’s arguments in this light, I make some observations of my own, drawing in part from my experience on the board of the NZLS and as a serving District President at the time of the 2006 reform.
Section 4 of the Act (which affirms four fundamental obligations) was seen at the time as a valuable statutory recognition of core legal values of a modern open society, adopting Karl Popper’s apt working label for modern democratic states governed by the rule of law. It remains so. Lawyers should be proud that it is their governing legislation which embraces such an important statement of the modern rule of law which may one day find its way into a written constitution.
Moreover, many of the practice rules and the statutory disciplinary regime are framed by s 4 of the Act: we tinker with this carefully designed legislative scheme at the risk of undermining these values.
Lawyers were not parties to the treaty, so the proposal is a non-sequitur. It is not for lawyers to uphold the treaty, or to promote upholding of the principles of the treaty or to promote a particular group’s interests in society. It is the job of lawyers as professionals to represent opposing parties’ interests in treaty and other litigation or in the handling of their legal affairs, not to be activists.
The fishhooks
Casting such a duty as is proposed upon lawyers is not just abhorrent, as Judd describes it, it cuts across the core principle of the independence of lawyers (also one of the fundamental obligations).
It potentially undermines the duty on lawyers to protect clients’ interests equally before the law, particularly if a duty to promote Māori interests makes lawyers pull their punches in litigation for fear of transgressing the Act. These are very real conundrums which cannot be ignored because of an aspirational desire to promote, or be seen to promote, a disadvantaged group.
Acting in litigation involving iwi and other interests (such as farmers on whose land urupa exist), I can say from experience, is challenging: adding an ‘uphold the treaty’ duty to the Act could be construed to contain within its meaning controls on lawyers’ advocacy for iwi and opposing interests, such as the Crown; it may serve more generally to dissuade lawyers from acting in what is often difficult litigation (some may think the headache of compliance with such a duty simply not worth their while).
We should bear in mind, as Ranginui Walker cogently recounts (op cit), that ongoing disputes between the treaty parties, including up to the present day, are for Māori, ka whawhai tonu matou. We ought to understand this perspective and continue to focus on our core functions, fighting for our clients’ best interests, whoever they may be (which is another one of the fundamental obligations).
In my experience, what Māori litigants want from their lawyers is for them to be on their side and fight for the outcome they desire, which is what other litigants want – that is to say, professionalism, results and loyalty. The fundamental obligations already require this of us.
What we need least in our legislation is a new amorphous duty. Enacting the proposed legal obligation on lawyers will achieve nothing of value and is faintly absurd. And where will it stop? Will it amount to professional misconduct for which lawyers may be disciplined if they merely speak ill of the treaty or advance an interpretation that does not accord with a government of the day’s opinion as the ‘one source of truth’?
Lord Sumption has observed that western politicians’ appetite for coercive compliance has increased after observing the results achieved during the pandemic, and there are signs they will seek to apply coercive methods in other policy areas (Jonathan Sumption, Law in a Time of Crisis, Profile Books Ltd, London, 2021, chapter 12). Regulatory bodies tend to dance to coercive tunes; the only effective redress is the High Court.
Lawyers are already being charged with breaching the rule of law, something which is problematic because the boundaries in this context are not well-established. For example, there is a high degree of muddle about whether failing to uphold the rule of law includes, say, being convicted for offences, such as obstruction or drink-driving.
The regulator is showing signs of intrusion into lawyers’ personal lives, something the designers of the Act did not intend. A disciplinary offence of bad-mouthing the treaty or compromising Māori interests could run roughshod over lawyers’ rights to freedom of thought, conscience and expression, stifling lawyers’ thoughts and speech over such issues, on which they are well placed to contribute to public and political discussions.
The treaty does not need lawyers’ endorsement. In aspiring to protect the interests of Māori under the treaty, these reformers fall into the trap of many modern ‘progressive’ thinkers; they conflate aspirational statements and noble intentions with effective policies that may result in the achievement of desirable outcomes.
The proposal is not just redundant, it is ill-thought through and may undermine supremely important rights. Moreover, it will potentially create an irreconcilable clash with other fundamental obligations on lawyers. None of these outcomes will serve to better protect the interests of the very people the reformers apparently seek to help.
Warren Pyke is an Auckland barrister.
0 Comments