In June 2021, Local Government Minister Nanaia Mahuta brought her three waters proposals to Cabinet which authorised her to prepare legislation to implement them.
After the papers and associated Cabinet decisions were publicly released, it quickly becoming obvious to all who considered them that the proposals were plainly contrary to democratic principles. But the government did not acknowledge this until 23 April 2023 when, interviewed by Jack Tame, new local government minister Kieran McAnulty finally did so.
McAnulty justified his position by asserting that departure from democratic principles is required by the Treaty of Waitangi. This is an extraordinarily far-reaching and dangerous claim and, as I shall show, it is incorrect.
His statements were specifically directed at the three waters legislation, but his claim is potentially applicable to any part of the political, economic, social, cultural or any other field of public life in New Zealand.
This is manifested by the breadth of the treaty claims which keep expanding in scope, and by the government’s legislating and proposing anti-democratic structures in health, resource management, local government and so forth, as well as the three waters.
McAnulty’s claim has been submerged by a plethora of other political scandals, but it must become top of mind because it portends a constitutional shift to a form of governance where ancestry confers the right to rule over others, as it did in England until bloody struggles eventually succeeded in asserting the people’s right to choose their rulers.
Charles III’s kingship is the emaciated vestige of that discredited and superseded system. Because of what was put in place by the ‘glorious revolution’ of 1688-1689, he has no political power and must do what he is told by the people’s elected representatives.
It is very simple to show McAnulty’s claim to be wrong. You don’t have to be a lawyer to see it, but because of our unique connection to the law and our fundamental obligation to uphold the rule of law, lawyers should be shouting the loudest in protest at this gross distortion of New Zealand’s constitution.
Principle of contradiction
The minister’s claim is wrong because it violates the principle of contradiction. The principle was first expressed by Aristotle: “A thing cannot at the same time be and not be”; “the same attribute cannot at the same time belong and not belong to the same subject in the same respect.” The positive affirmation of something necessarily excludes its negation.
The treaty cannot both bring political equality to New Zealand (as it did by bringing the rule of law) and at the same time deny it by requiring that some New Zealanders, distinguished from others only by their ancestry, be given special rights and powers. The treaty cannot both affirm the rule of law and at the same time affirm negation of its basis.
By political equality I mean equality of political power. That means no one is born with the right to exercise power over others; all are born with the same rights in that regard.
When we turn our minds to the rule of law, we understand that political equality is at its heart. That being so, it is obvious that departure from democratic principles is not required by the Treaty of Waitangi, for democracy is based on that same political equality. We could just stop there, but further considerations drive home the point.
New Zealand did not get democracy with the signing of the treaty. It became a British colony, governed by Britain, with day-to-day government in the hands of a governor appointed by the British government. Britain had to give us the right to govern ourselves and to do so through representatives chosen by the people through periodic elections. That was a gradual process not fully completed until the mid-20th century.
What we did get with the treaty, though, is the rule of law. As former Chief Justice, Dame Sian Elias pointed out in 2015: The rule of law can be imperceptibly eroded unthinkingly if it is not valued by our society….The challenges for judging and for the rule of law in New Zealand in the 21st century are to ensure that access to independent courts and the rule of law continue to be valued as constitutional fundamentals by the community. That requires understanding of our constitutional and legal history. This is a year of anniversaries of importance to law. It is 175 years since the signing of the Treaty of Waitangi, by which constitutional government was established and the enacted and common law of England, arrived on these shores so far as appropriate to the circumstances of New Zealand (an important qualification). With the Treaty, Magna Carta, 800 years old entered New Zealand law. These are points of reference we need to talk more about. It is not fanciful to see in Magna Carta ideas central to the rule of law and which have influenced our constitutional history ever since.
The treaty brought government by Britain to New Zealand and set the stage for the establishment of independent government which started to develop a few years later.
The important point is that the rule of law arrived with the treaty. In the same address to Otago University, Judgery and the rule of law, Dame Sian noted that the rule of law is one of the twin principles of New Zealand’s constitution. (The other is the sovereignty of Parliament.)
The most important aspect of the rule of law from a constitutional perspective is that it rests on the principle of political equality.
Political equality rejects the idea that some are born to rule. As John Locke wrote at the time of the glorious revolution, “all the power and jurisdiction [of the people] is reciprocal, no one having more than another” except to the extent the community grants to some the power to make laws and to administer the laws as guardians of the law.
Political equality is the foundation of the rule of law’s requirements that the law must rule and do so by rules which are the same for all, with the right to impose such rules belonging to the community which exercises it through the representatives it chooses (and replaces), according to settled constitutional law.
The treaty does not justify departure from the rule of law. The very idea would embody a contradiction and be absurd. It would be ridiculous to claim that the “solemn compact” which brought the rule of law to these shores also required rejection of the equality principle lying at its heart.
If the claim were correct, the treaty would both bring the rule here and by the very same document deprive it of its vital content and force.
The rule of law and democracy go hand in hand because political equality is the source of both. Over 2000 years ago in Athens, the birthplace of democracy, Aristotle said “those who are by nature equals must have the same natural right and worth [so] it is thought to be just that among equals everyone be ruled as well as rule, and therefore that any should have their turn. We thus arrive at law; for an order of succession implies law.”
Then follow the words which are frequently quoted as indicating the origin of the concept, “And the rule of the law, it is argued, is preferable to that of any individual.” Where individuals must govern, they must be “only guardians and ministers of the law”.
When the treaty brought the rule of law to New Zealand, it brought the principle of political equality. It did not bring political inequality. When McAnulty said that departure from democratic principles is required by the Treaty of Waitangi, he was claiming that the treaty brought political inequality when it actually brought the opposite.
That’s why McAnulty’s claim is false, and a tawdry excuse for giving power and control to unelected people chosen because of the race they were born with.
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