Warren Pyke
I can understand why many ordinary Māori are deeply suspicious of the Treaty Principles Bill. They suspect, I think justifiably, that the rhetoric of equality and the rule of law cloaks the bill’s ultimate goal, which is the doing away with the treaty altogether.
This purpose is not even cleverly masked, as the idea of allowing “everyone” to have a say on the treaty principles shows. The Treaty of Waitangi was not signed on behalf of “everyone” – the parties were the Crown and certain Rangatira. So, it must follow that “everyone” does not have the same rights and entitlements under the treaty and “everyone” does not have standing to say what goes under the treaty, or to say what it means.
Notionally, it is the principles of the treaty that the bill seeks to redefine. David Seymour rightly observes that an undefined reference to principles in the Treaty of Waitangi Act 1975 has created unexpected consequences and uncertainty. It has fallen to the Waitangi Tribunal and the judges to formulate these principles (I have reviewed these principles in an earlier Law News article).
Principles are abstractions. They have no content until given context. To develop principles of a treaty, agreement or other instrument can lead us astray. While such instruments have identifiable purposes (usually garnered from recitals, preambles and the like appearing in the chapeau of such instruments, similar in this way to most primary legislation), principles are usually developed and applied to such instruments as they fall to be interpreted and applied to live transactions and disputes.
Modern constructs
I agree with the late Antonin Scalia that there are two proper methods of deriving meaning from constitutional instruments: first, by reading the text itself; second, by deriving meanings that flow from necessary implications of the text.
This method of interpretation of a treaty of cession leaves little room for over-arching principles. It certainly does not permit reading in modern conceptions of the rule of law and equality of rights, which is what the bill is proposing to do.
It is also doubtful that a “living instrument” approach to interpretation permits what Seymour’s bill is attempting to do, although that is its method. If one takes as a starting point the purposes of the treaty, they are tolerably clear from its words and context: the Crown has the right to govern and the Crown has obligations to uphold and protect Māori tribal interests and to extend the protection of English law to Māori.
New Zealand was formed as a colony of an imperial power. It later became a dominion, then an independent realm. The treaty did not provide a constitution for any of these forms of government, although it lent them all legitimacy.
The treaty affirmed but did not create Māori property and cultural rights. While the treaty is part of New Zealand’s constitution, Parliament cannot make a constitution or a new bill of rights out of the treaty. The treaty stands on its own ground and it speaks from its time.
Groping for consistency
The current treaty principles have emerged out of treaty claims and litigation after 1975, in the context of grievances about the Crown’s failure to honour its commitments under Articles 2 and 3 of the treaty. The tribunal and the judges have been groping for consistent methodologies to justly resolve such claims. That task has not been easy. It is the broader application of these principles that appears to be one of the primary targets of the bill.
The bill seeks to displace the judicially formulated “treaty principles” with a set of modern liberal ideals, with which no one would disagree and which are part of the tapestry of modern open societies.
It is a cynical political move. No lover of liberty, equality and the rule of law would disagree that the principles expressed in cl 6 of the bill are essential elements of the constitutions of modern democratic states.
But that is not the purpose they serve under the bill. I agree with Willie Jackson’s point made in his speech in the House on the first reading of the bill: the bill sends democratic ideals into battle against the treaty. To borrow from Scalia again, this wolf comes as a wolf.
While the bill does not announce itself as overriding the text of the treaty (which is expressly disavowed by cl. 9 of the bill), it does seek to defang it by recasting rights under the treaty as being equivalent to those available to all citizens.
There is no such equivalence. Obviously, if “everyone” has the same rights, there remains no functional place for the protections of the treaty.
The fallacy underlying this conception of New Zealand’s open society is that every person enjoys the self-same rights, when self-evidently that is not the case. This fallacy needs to be pointed out, because Seymour slides seamlessly when campaigning in support of the bill between ideas of universal basic rights and the notion of radical equality (perhaps he does not understand the difference, although I suspect he does).
Equal rights
We all enjoy the same fundamental rights, such as the right to justice, political and civil rights (which are already guaranteed by legislation and the common law – they do not need to be restated in a Treaty Purposes Bill).
But I am not equal in all legal respects to my mother: we do not share all of the same rights – for example, I do not have the right to a pension (soon, but not yet) so I am discriminated against by age. Such instances are in the law quite common, for example the voting age contest in the Make it 16 case. Short of looney communism, there is no way to achieve radical equality.
By way of further illustration, if my hapu possesses Māori land or has customary rights over fisheries, we have a different set of property rights, in part protected by the treaty, to those held by individuals who own freehold land or companies which have fishing quota, which are not protected by the treaty.
Moreover, to state the obvious (because it seems I need to, at least to Seymour), we are not all equal. I cannot run the 100 in 9.6 seconds, and I never will, but Usain Bolt can’t do things I can do. No law will make us equal. The rhetoric of radical equality may make for stirring political propaganda, but when examined closely it is not a sane program for any civilised society.
The bill’s principles do not emerge from a reading of the treaty itself. It is a legal and historical nonsense to describe them as principles of a treaty of cession from 1840.
Notions of the rule of law and political equality were struggling to find life in the first half of the 19th century. The franchise throughout the British empire in 1840 was exceedingly narrow. In the United States, Jeffersonian democracy permitted slavery, and blacks and women did not have the vote. Life was often nasty, brutish and short.
Hobbes’ doctrine of the Leviathan had only recently been shown to be a catastrophic model for a civilised society, following the final defeat of the Napoleonic imperium.
In the historical context of 1840, the treaty was a means for survival, and hopefully the future flourishing of Māori in an often violent world, where colonial powers vied for resources. Other powers vie for tribal property and resources and put pressures on the expression of cultural norms and practices in contemporary New Zealand, which is why the treaty still has a role to play.
The bill may also be a political reaction to the expansion of the treaty’s domain within the law of New Zealand. It may well be designed to cut off at the pass the program suggested by Justice Glazebrook (extrajudicially) when delivering the Mackenzie Elvin Law annual public lecture at the University of Waikato in 2021.
In her scholarly lecture, Glazebrook posits that until New Zealand completes the process of decolonisation, the rule of law can be considered only a work in progress, arguing that we must give the treaty a “new place” in the constitutional landscape.
The bill is also a direct, albeit incoherent, refusal of the notion that the Treaty of Waitangi is a “living instrument”, as opined by Cooke P in the Lands case, which is to be interpreted according to developing national circumstances, see Te Rünanga o Muriwhenua Inc v Attorney-General [1990] NZCA 7; [1990] 2 NZLR 641, per Cooke P at 655.
The problem with this doctrine, as Scalia observed of such an approach to interpreting the United States Constitution, is that it gives the treaty work it was not designed to perform, liberating the judges from merely applying its text.
While I concede this “living instrument” approach to the treaty gives immense power to the judges, the solution is not Seymour’s bill. The solution is a more restrained judicial approach to interpretation, noting however that Cooke P’s was not an entirely unconstrained vision, as one sometimes sees in United States jurisprudence.
What has resulted in the text of the bill is a phoney declaration of a supposed new era of equality and the rule of law.
David Seymour and ACT have perhaps unwittingly joined the Olympians, whose project is to shine down their superior enlightenment on those living on the lower slopes, by means of announcing plans based on grand abstractions.
Congratulations Mr Seymour, in my opinion you have managed to ignite serious social division over a provocative but ultimately pointless bill that is fortunately dead on arrival.
Warren Pyke is an Auckland barrister and a member of The Law Association’s Public & Administrative Law committee
Read further: Not a wolf but a lumbering herd of elephants
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