When confronted with a document as pregnant with disputation as the latest interim report from the Waitangi Tribunal, there is only one question to be answered.
Is this accidental or deliberate?
When the document in question contains 224 pages, most of them closely argued, the accidental explanation lacks force.
But if the interim report is accepted as a deliberate intervention in the constitutional life of the New Zealand state, then what are its authors’ ultimate intentions?
The answer would appear to be nothing less than the judicial negation of the “revolutionary seizure of power” (the phrase is Professor Jock Brookfield’s) by the New Zealand General Assembly in the years following the Westminster Parliament’s granting of limited self-government to its southernmost colony in 1852.
Whatever the Treaty of Waitangi, signed in 1840, may or may not have promised Māori was repudiated in short order by the devolution of political authority to the settlers.
In this regard, the principle of parliamentary sovereignty – hard won by the English Parliament and transmitted to its new colonial offspring without significant modification – was to prove crucial.
Without the benefit of parliamentary sovereignty, the dispossession of Māori would have acquired a degree of difficulty only contemporary parliamentarians are equipped to appreciate.
But confronted with powers which made the legislature judge, jury and executioner in its own cause, the Waitangi treaty never stood a chance.
Moreover, as Brookfield argued, the passage of time would transform the settlers’ de facto seizure of power into de jure, internationally recognised, constitutional sovereignty.
Courtroom wins
Taking that sovereignty back will be difficult. Difficult, yes, but not impossible.
That, at least, would appear to be the view of those conscientised jurists, bureaucrats, academics, journalists and activists – Māori and Pakeha – who have, since the 1980s, been doing all within their power to facilitate a restoration of Māori sovereignty.
In this endeavour they have achieved a number of remarkable successes: the elaboration of “treaty principles”, the concept of a “treaty partnership”, the internationally esteemed “treaty settlement process” and, more recently, the Crown’s surreptitious commitment to the “decolonisation” and “indigenisation” of Aotearoa-New Zealand.
But, there was always a fragility about these triumphs: a weakness born of the fact that so many of the Māori sovereigntists’ victories were won in the courts.
For as long as the legislature was content to let all that “treaty stuff” be sorted out by the judiciary, this did not matter.
Foreshore and seabed
Eventually, however, the moment came when minor changes morphed into major change and with major change came political pushback – a battle of wills which those wielding the slam-dunk power of parliamentary sovereignty were always going to win.
At the heart of the Māori sovereigntists’ struggle for the treaty and its many ramifications lies a deep-seated fear of the New Zealand people.
With the exception of lurid and/or salacious courtroom contests, most legal cases never get to inflame the body politic.
Every now and again, however, a legal judgment in relation to matters Māori raises the political temperature of the nation. The foreshore and seabed was one such issue.
Clever public relations have obscured the central issue around the foreshore and seabed controversy, which was that the settler state, wearing the armour of parliamentary sovereignty, emerged victorious.
The Court of Appeal’s judgment was overturned and the beaches were nationalised.
Sir John Key’s National government did not significantly deviate from its Labour predecessor’s solution. Quite deliberately, establishing Māori customary title was made extremely difficult.
What should have been a warning to both Māori sovereigntists and the courts, however, appeared only to make them even more determined to elevate the treaty constitutionally beyond the reach of “racist” legislators and the citizens who elected them.
Constitutional crisis
The Supreme Court, the Court of Appeal, the Waitangi Tribunal: all have contributed to what is now threatening to blossom into a full-scale constitutional crisis.
As the practical consequences of decolonisation and indigenisation emerged with increasing clarity under the Jacinda Ardern/Chris Hipkins Labour government, the unabashed politicisation of “treatyism”, which was National’s, Act’s and NZ First’s response, played an important role in carrying the Right to a solid electoral victory in 2023.
After nearly four decades of comity vis-à-vis the judicial arm of the state, the new government was elected to wield parliamentary sovereignty with brutal effectiveness, rolling back four decades of Māori success in the courts and before the tribunal.
What is clear from the Waitangi Tribunal’s interim report is that applying parliamentary sovereignty to Crown-Māori relations generally, and to the treaty in particular, is deemed by the tribunal to be constitutionally illegitimate.
Act’s Treaty Principles Bill and NZ First’s determination to water-down, or remove altogether, the “principles of the treaty” from New Zealand statutes, have both been targeted for elimination by the interim report’s authors.
That these measures are enshrined in the coalition agreement that brought the present government into being, and that their arbitrary removal by the National Party would, almost certainly, precipitate its extinction, has not dissuaded the tribunal from crying: “Let justice be done – though the heavens fall!”
Do nothing
The question posed to Prime Minister Christopher Luxon and his Cabinet is this: how best to respond to the tribunal’s audacious attempt to not only negate the principle of parliamentary sovereignty but also to roll back 170 years of responsible government in New Zealand?
And not only responsible government.
In the 2023 general election, National, Act and NZ First together amassed a majority of the party vote: they govern because the people of New Zealand elected them.
If the tribunal is permitted to determine what may, and may not, be included in a coalition agreement negotiated between parties commanding a majority of the seats in the House of Representatives, then democratic government, as New Zealanders have come to understand it, will be at an end.
So, what should the Prime Minister do?
The most sensible course of action for Luxon to follow, at least in the short term, is to do nothing.
Though it clearly wishes it were otherwise, the Waitangi Tribunal cannot enforce its recommendations.
The Prime Minister would, therefore, be entirely within his rights to simply thank the tribunal for its interim report and then continue to implement the policies contained in the coalition agreement, as negotiated between him, David Seymour and Winston Peters.
It would, however, be prudent for the Prime Minister or Attorney-General Judith Collins KC to deliver to both the judiciary and the tribunal a very clear reaffirmation of the principle of parliamentary sovereignty and, further, to advise them in terms that cannot be misunderstand that the Crown in Parliament is sovereign and insists upon being recognised as such by all of His Majesty’s justices.
Those same justices might also be reminded, bluntly, that the same politicians who elevated them to the bench can also remove them from it.
New Zealand is not the United States; its Supreme Court has no power to strike down legislation and the Waitangi Tribunal is not entitled to invest the Treaty of Waitangi with the definitive authority of a written constitution.
Ironically, the person with most to gain from the tribunal’s constitutional over-reach is David Seymour.
Prior to the release of the interim report, Seymour’s Treaty Principles Bill was headed for inevitable parliamentary defeat at the conclusion of its second reading debate.
But now that the full extent of the tribunal’s determination to undo the “revolutionary seizure of power” that made a nation out of a colony has been revealed, there may be sufficient unease in National’s caucus to justify a re-visiting of its decision to vote down Act’s bid to redefine the treaty in such a way that all New Zealanders can sign up to it.
A written New Zealand constitution, the nation’s supreme law, must be made by New Zealand’s people, not by its courts, and most certainly not by its wayward Waitangi Tribunal.
Chris Trotter has more than 30 years’ experience as a political commentator and is the author of the Bowalley Rd blog
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