Legal Perspectives on the Treaty
Aeoteroa: New Zealand
Laws essay 2006
The legal perspectives of the Treaty of Waitangi (the Treaty) are many and varied. A statute can be completely silent as to the Treaty, yet the context may require certain mandatory relevant considerations be taken into account by a decision-maker. Failure to do this would lead to contextual review. Of course many statues make express reference to the Treaty or its principles. Here, there might be a list of relevant criteria, and the statutory text may be mandatory or discretionary. Express statutory recognition was first given by Parliament to Treaty principles in 1986. This in turn led to the landmark Court of Appeal case New Zealand Maori Council v A-G1 (the Lands case). There the Court, utilising public and private law concepts, expounded a somewhat vague list of Treaty principles. However, further into the 1990s judicial activism led to judicial restraint – in regard to enforcing these principles. Ultimately, the principles still failed to address the problem of sovereignty. Another legal perspective claims the Treaty should have limited constitutionalising, whereby it could be used as a ‘background’ in the statutory interpretation of all statues, unless excluded. Yet the more desirable legal perspective is to doubly entrench the Treaty in a written constitution. Thus making it supreme law. Contextual review is discussed first.
The leading authority for contextual review is Huakina Development Trust v Waikato Valley Authority.2 Where a statute is silent as to the Treaty, Treaty principles can be implied into the statute by the context. This might be viewed as a kind of judicial legislation. Other Courts have applied the Treaty ‘on conventional administrative law grounds’.3 The Privy Council in Hoani Te Heuheu Tukino v Aotea Maori District Land Board.4 raised no objection to applying Treaty principles in the complete absence of statutory reference or incorporation. For contextual review,5 the crucial criteria are relevance and context, being the legislative and factual matrix and what Chilwell J in Huakina called ‘the fabric of New Zealand society’.6 Furthermore, his honour stated the Treaty has a status that is ‘perceivable’, whether or not the Treaty is enforceable in law. However, this last statement appears unsupported by authority.7
An Act of Parliament may expressly refer to the Treaty, either as a mandatory relevant consideration, or as a discretionary consideration. For example, where a statute reads: ‘The Treaty of Waitangi shall be taken into account’, this is a mandatory consideration – there is no discretion. The failure of a decision-maker to take account of the Treaty will result in express reference review. The paradigm case for this kind of review is the Lands case. The issue in the case turned on simple statutory interpretation. The Court of Appeal was required to decide upon the interface between sections 9 and 27 of the State Owned Enterprises Act 1986. The New Zealand Maori Council mounted a challenge under section 9, arguing it provided statutory protection in relation to the transferring of Crown assets. The Crown submitted s. 27 was a complex code which overrode s.9, and, therefore it was able to transfer the assets. The Crown also argued s.9 did not apply to land transfer. The Court held in favour of the N.Z.M.C. Parliament’s intention was not that s. 27 was a code enacted to override s. 9 of the Act. Moreover, it could not be claimed that s. 9 excluded land. The Crown, because of its failure to monitor the transfer of assets without regard to Treaty principles, had breached s.9, which reads;
Nothing in this Act shall permit the Crown to act in a manner that is
inconsistent with the principles of the Treaty of Waitangi.
‘Section 9 of the Act was unique, never had Parliament invested the phrase “the principles of the Treaty of Waitangi” with statutory force.’9 When, in the 1986 Act, Parliament made express reference to Treaty principles, it was accepted that the task of deducing these principles would fall to the Courts. In enacting s. 9, Parliament, perhaps inadvertently, chose to bind itself to some form of recognition of Treaty principles. In effect, Parliament implicitly delegated a degree of law making power to the Courts10 - this is not uncommon. However, the Lands case was unique, as no precedents existed to assist the Court of Appeal.
The Lands case represented a significant shift in judicial legal perceptions regarding the Treaty. In the words of Chilwell J; the Treaty (at least its principles) were now both perceivable and enforceable in law, because of the express phrase ‘the principles of the Treaty of Waitangi’, and the judicial definition of those ‘principles’. ‘All the five judgements adapted, as best they could, the language of established private and public law concepts’.11 What is deducible from the judgements is that the Treaty was a ‘solemn compact’. The Crown, that is the Crown12 then existing in the 19 century, obtained sovereignty politically, if not technically,13 and in return promised protection for Maori.14 The Court held that Treaty principles required the Crown and Maori to act reasonably and with utmost ‘good faith’. A partnership between races existed. The Crown has a duty to actively protect Maori in the use of their lands and waters. Redress should be granted to Maori when the Waitangi Tribunal recommends it. Maori owe a duty of loyalty to the Queen. They must accept her government and act with reasonable cooperation. In certain instances, the Crown may have a duty to consult with Maori.15
The new Treaty principles were subjected to severe criticism. For instance, Paul Mc Hugh stated; ‘No-one pretends that the language of partnership and fiduciary obligation was exchanged … at Waitangi in 1840. The Courts have stressed their construction of what amounts to a contemporary mythology of the Treaty.’16 Likewise, the Ministry for the Environment had claimed ‘Partnership has little or no intrinsic meaning and so can be made to mean whatever it is wished to mean. It is an empty box to be filled by whoever wields power on the day. The concept cannot be found in the words of the Treaty’.17 Arguably, the word ‘partnership’ is contradictory, as the original signatories of the Treaty are no longer alive. A judicial perspective which seeks to prolong that partnership is somewhat of a legal fiction. It has been stated that ‘some of the scholarship surrounding [the Treaty] is highly suspect, fuelled as it is by political motivation rather than detached analysis.’18
The entire legal perspective from the Court of Appeal in relation to Treaty ‘principles’ is best summarised by Sir Robin Cooke in the decision Te Runanga and Wharekauri Rekohu v A-G.19
‘an enduring relationship of a fiduciary nature akin to a partnership,
each party accepting a positive duty to act in good faith, fairly,
reasonably and honourably toward the other.’
This judicial perspective effectively elevates the relationship between Maori and the Crown to that of a special status, and by doing so seems to conflict with Article 3 of the Treaty; that is, that Maori are to be guaranteed the same protection as any other British subject.20 It could be claimed that by affording Maori a special partnership with the Crown other citizens are relegated to a second class status. Any right to a special status also sits uneasily with the Diceyan claim that all citizens are equal before the law. However, extra-judicially, Sir Robin stated it is not a partnership per se, but rather ‘an analogy’ of partnership.21
The above principles, based on the Court of Appeals legal perspectives, are incredibly vague. There may exist analogies with the above principles and what can be construed upon reading the Treaty text, yet none of these principles are to be expressly found in the Treaty itself – here lies the problem. How could, or should, subsequent courts apply principles that suffer from semantic imprecision? They mean ‘everything and nothing’22 In actual fact the principles might justify a Court in reaching any conclusion. In the Lands case the Court of Appeal applied the principles and held the Crown had acted unlawfully. However, the Court could easily have extracted other principles from the Treaty, such as the Crowns right to govern,23 and held for the Crown instead. The fact remains that there are no principles listed in the Treaty itself that could assist a Court in determining the Treaty’s legal status. The legal perspective in the Lands case undoubtedly signalled a major shift in Treaty jurisprudence.
Two years after that case what some call judicial activism turned to restraint. The dictum in the following judgement indicates a definite reluctance by the Court of Appeal to enforce Treaty principles. The Lands case of 1987 continued in New Zealand Maori Council v A-G.24 This decision turned primarily on procedural issues. Cooke P observed that ‘Partnership certainly does not mean that every asset and resource in which Maori have some justifiable claim to share must be divided equally’. Nevertheless, he also stated, drawing from the 1987 decision, that it had become ‘really clear beyond argument’ that ‘the good faith owed to each other by the parties to the Treaty must extend to consultation on truly major issues’.25
Notwithstanding the Court of Appeals recognition of the ‘principles’ there remains a greater obstacle which is this; in Te Heuheu the Privy Council ‘affirmed the common law rule that international treaties must be expressly incorporated into legislation to be enforceable at law’.26
‘Their Lordships confirmed that Maori could not build enforceable rights on the Treaty. The instrument [the Treaty] received legislative recognition from the outset but it was not claimed that this transformed the promises exchanged at Waitangi into justiciable rights.’27
The Treaty has a ‘perceivable’ legal status, that is one which is legally perceivable, but still unenforceable.28 Surely this must be correct.29 The Treaty alone, cannot be enforced in law, unless brought into domestic legislation. In Berkett v Tauranga District Court,30 Fisher J held that Mayor Island was, due to the enactment of New Zealand and Imperial statutes, part of New Zealand. The issue of whether the Island’s Chief had signed the Treaty or not was inconclusive. Parliament and its statues were supreme, in spite of any beliefs, assumptions, or procedures leading to their enactment. The critical point made was that statutes do not derive their authority from the Treaty. From a legal perspective it is the exact opposite. The Treaty must either derive its authority from the common law, statute, or a combination of both (the Lands case). ‘There can be no doubt that the Treaty is part of the fabric of New Zealand society ….’31 However, the Treaty, when standing in complete isolation, is unenforceable. One 19 century Supreme Court decision is renowned for its notorious legal perspective.32 There, the Treaty was viewed as a ‘simple nullity’.33 That being so, it was stated, ‘a statute cannot call into being what is non-existent’.34 Here, the Treaty was not perceivable in any legal sense.35 This perspective is equally arguable, as Chilwell J’s claim that the Treaty is ‘perceivable’ in law, even if unenforceable, seems unsupported by authority.36 If this is correct, would the Treaty itself be devoid of all legal status? Ultimately, this question appears unanswerable. In any event, the rule in Te Heuheu remains; the Treaty is unenforceable in law, unless enacted into law.37
In the Lands case itself, Cooke P remarked the Privy Council rule Te Heuheu represented ‘wholly orthodox legal thinking, at any rate from a 1941 standpoint’.38 This last dictum is compelling and represents a distinct change in perspective – regarding the Treaty’s enforceability. Further support for this perspective is found in Te Runanga o Wharekauri Rekohu Inc. v A-G39, where the Court of Appeal expressly stated; ‘fundamental questions of the place of the Treaty in the New Zealand constitutional system’ remain open.40 Whether this leads to complete judicial recognition of the Treaty remains a moot point. In reality, a more modest recognition is likely to be forthcoming.
Certain legal theorists have championed the idea of complete judicial recognition of the Treaty in the field of statutory interpretation;
‘Potentially the Courts could extend their recognition of the Treaty by
interpreting and judging all state action against Treaty principles, unless
there is an indication from Parliament to the contrary. This would mean a
departure from the orthodox Te Heuheu principle – already hinted at by
Cooke P in the Maori Council Case (1987), although the Privy Council has
subsequently endorsed the orthodox view’.41
Brookfield has also supported this perspective. He would, as a general rule, except when Parliament have legislated to the contrary, have the Court interpret all Acts of Parliament, in there relevant contexts, against the ‘background’ of the Treaty. Here, Treaty principles would implicitly be viewed as mandatory relevant considerations that must be taken into account when State officials exercise statutory powers in matters of Maori interests. This position would not impinge on legislative supremacy, as the mandatory consideration could always be statutorily excluded.42
This judicial modification would be based significantly on New Zealand’s changed legal status since the Te Heuheu decision in 1941. In 1941 the Privy Council viewed the Treaty as merely another Treaty of cession which the Imperial Crown had acquired from the British Empire. As such, the Privy Council applied a general rule to the Treaty of Waitangi. At the time New Zealand had not even adopted the Statue of Westminster 1931 (UK), and had limited powers to amend its constitution. New Zealand was certainly not perceived as a separate sovereign realm. Today it has complete sovereign power.43 In this context the Treaty ‘may’ become perceivable in law. This proposed judicial modification in statutory interpretation would result in ‘… a limited constitutionalising of the Treaty’44, but that is all.
The better legal perspective, whereby the Treaty is both perceivable and constitutionally enforceable in law, would be to place Treaty rights beyond the reach of Parliament. This would require an entrenched written constitution. This may happen if New Zealand becomes a republic.45 In turn the monarch could forgo any remaining Treaty obligations owed to Maori. However, Treaty rights would still require drafting. As a corollary to this perspective, Parliament would relinquish the sovereign power46 it exercises over the Treaty – the rule in Te Heuheu would then become obsolete. Even still this perspective would not provide complete protection for Treaty rights. Provided Parliament could fulfil the stringent internal constitutional conditions for amendment then Treaty rights could be abrogated.47 An analogy can be made here with Canada, where indigenous people’s rights are protected by Canada’s Constitution Act 1982.48 ‘A Treaty-based constitution [in New Zealand] is one possibility.’49 Although it has been more common for New Zealand governments to speak of the ‘spirit’ or ‘intent’ of the Treaty, as opposed to expanding upon its substantive provisions.50
The judicial perspective of contextual and express statutory reference review fail to address the problem of sovereignty. A breach of Treaty principles can lead to review, however Parliament retains its supremacy over the Treaty and common law principles.51 Judicial perspectives differ as to whether the Treaty, on its own accord, has enforceable status. It may have a status ‘perceivable’ in law, even if unenforceable in law. Even its status as perceivable in law is contentious. The Treaty has an ambivalent status. Some theorists claim it could be used as a basis for all statutory interpretation. This would provide the Treaty with a degree of limited constitutional status. However, its entrenchment into supreme law is the ultimate legal perspective. Here, a Court of superior jurisdiction could rule on the constitutionality of legislation, and invalidate it, if necessary.
TABLE OF CASES
Berkett v Tauranga District Court [1992]3 NZLR 206.
Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590 (PC).
Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188.
New Zealand Maori Council v A-G [1987]1 NZLR 641 (CA) (the Lands case).
New Zealand Maori Council v A-G [1996]3 NZLR 160 (CA).
Nireaha Tamaki v Baker (1901)NZPCC 371 (PC) 373.
R v Sparrow [1990]1 SCR 1075 (SCC).
R v Symonds (1847)NZPCC 387 (SC).
Tainui Maori Trust Board case [1989]2 NZLR 513.
Te Runanga and Muriwhenua v A-G [1990] NZLR 641.
Te Runanga o Wharekauri Rekohu Inc. v A-G [1993]2 NZLR 301.
Te Runanganui o Te Ika Whenua Inc. Society v A-G [1994]2 NZLR 20.
West v Martin [2001]NZAR 49 (CA).
Wi Parata v Bishop of Wellington (1877)3 NZ Jur (NS) 72.
TABLE OF STATUTES/SUPREME LAW
Constitution Act 1986
Employment Relations Act 2000
New Zealand Bill of Rights Act 1990
State Owned Enterprises Act 1986
Treaty of Waitangi Act 1975
Statute of Westminster 1931 (UK)
Charter of Rights and Freedoms (Can.)
Constitution Act 1982 (Can.)
TABLE OF BOOKS
Brookfield, F, Parliament, the Treaty and Freedom; Millennial hopes & Speculations, in Joseph, P, (ed), Essays on the Constitution, Wellington, NZ, Brookers, 1995.
Joseph, P, Constitutional and Administrative Law in New Zealand (2nd edn.) Brookers, Wellington, 2001.
McDowell & Webb, The New Zealand Legal System (2nd edn.), Wellington, Butterworths, 1998.
Sir Robin Cook, The Suggested Revolution against the Crown, in Joseph, P, (ed), Essays on the Constitution, Wellington, NZ, Brookers, 1995.
TABLE OF JOURNAL ARTICLES
Joseph, P, The Treaty of Waitangi: a text for the Performance of Nation,
O.U.C.L.J., 2004
Palmer, M, The Treaty in Legislation, NZLJ (June 2001) 207.
Round, D, Judicial Activism and the Treaty: the Pendulum returns, O.L.
Rev. (2000) Vo 9 No. 4 653
INTERNET RESOURCES
www.legislation.govt.nz
Word Count = 2574
END NOTES
1 [1987] 1 NZLR 641 (CA) (the Lands case).
2 [1987] 2 NZLR 188.
3 As in New Zealand Maori Council v A-G [1996]3 NZLR 140 (CA).
4 [1941] AC 308 (PC).
5 ‘Government ministers must now take account of the impact of public decision-making on Treaty principles, or risk judicial review’: Joseph, P. The Treaty of Waitangi: A Text for the Performance of Nation; O.U.C.L.J., 2004, at p. 14; it should be noted that both Huakina and Te Heuheu were decided before the Court of Appeal authoritatively defined the Treaty’s ‘principles’ in the Lands case. 1987.
6 [1987]2 NZLR 188, at p. 210.
7 Round, D, Judicial Activism and the Treaty, O.L. Rev. (2000) Vo 9 No 4 653, at p. 654.
8 McDowell & Webb, The New Zealand Legal System, (2nd edn.). Wellington, Butterworths, 1998, at pp. 205 & 206; section 9 remains on the statute books to this day; www.legislation.govt.nz; the phrase ‘Treaty of Waitangi’, in s. 9, means that which appears in Schedule 1 Treaty of Waitangi Act 1975; cf. Schedule 1B Employment Relations Act 2000 which uses ‘Principles of the Treaty of Waitangi; see Palmer, M, The Treaty in Legislation, NZLJ (June 2001) 207.
9 Joseph, op. cit. note 5, at p. 13.
10 Round, op. cit. note 7, at p. 654; cf. the word ‘reasonable’, usually, if ever, statutorily defined.
11 Joseph, supra, at p. 13.
12 The Crown in right of the United Kingdom, not New Zealand, although both nation states share the same monarch; Joseph, supra, at p. 18.
13 Article 1 of the Treaty.
14 Article 2 of the Treaty.
15 Round, supra, at p. 655; see Joseph, supra, at pp. 12 & 13.
16 McHugh, P cited in Round, op. cit. note 7 at p. 655, emphasis added.
17 Resource Management paper cited by Round, supra, at p. 655.
18 Sir G Palmer cited by Round, at p. 656.
19 [1993] 2 NZLR 301, at p. 34.
20 These Treaty Articles derived from pre-existing common law doctrines; see Joseph, op. cit., note 5, at pp. 21 & 22; R v Symonds (1847) NZPCC 387 (SC); this point, based on race, aided the right-wing philosophical perspectives of National party leader Don Brash in 2004, see further Joseph, at pp. 15 & 16.
21 Round, op. cit. note 7, at p. 657; Dicey is critiqued by Joseph, P, Constitutional & Administrative Law in NZ, (2nd edn) Brookers, 2001, at pp. 178-190.
22 Ibid, at p. 655.
23 Article 1 of the Treaty.
24 [1989]2 NZLR 142; In the Tainui Maori Trust Board case [1989]2 NZLR 513, it was emphasized that the concept of partnership does not mean ‘ that every asset or resource in which Maori have some justifiable claim to share should be divided equally.’ In the Lands case Sir Robin claimed that recommendations made by the Waitangi Tribunal pursuant to the Treaty of Waitangi Act 1975 ‘may’ be somehow binding. This claim was clearly contrary to the Act. Later, in Te Runanga and Muriwhenua v A-G [1990]2 NZLR 641, he cautiously reneged stating; Tribunal recommendations ‘are not binding on the Crown of their own force’. (at p. 651). In Te Runanganui o Te Ika Whenua Inc. Society v A-G [1994]2 NZLR 20, the Court of Appeal considered even if Maori customary title and Treaty rights were liberally construed they could not include the right to generate electricity by harnessing water power.
25 Round, op. cit., note 7, at p. 655; and see further cases David Round claims are examples of judicial activism.
26 Joseph, op. cit., note 5, at p. 11.
27 Loc. cit; see also Nireaha Tamaki v Baker (1901) NAPCC 371 (PC) 373.
28 Joseph, supra, at p. 14.
29 Joseph claims ad hoc legislative incorporation has softened the rule, at p. 12.
30 [1992] 3 NZLR 206.
31 Huakina, per Chilwell J, at p. 206.
32 Wi Parata v Bishop of Wellington (1877) 3 New Zealand Jur (NS) 72.
33 Ibid, per Prendergast C. J., at p. 78.
34 Cited in McDowell & Webb, op. cit. note 8, at p. 213.
35 See Joseph, op. cit, note 5, at pp. 9 & 10.
36 Round, op. cit. note 7, at p. 654.
37 As a logical result, Parliament retains its supremacy over the Treaty; see West v Martin [2001]
NZAR 49 (CA) at para [28].
38 Lands case, op. cit., note 1, at p. 667.
39 [1993] 2 NZLR 307, at p. 305 (CA).
40 Te Runanga, at p. 305
41 McDowell & Webb, op. cit. note 8, at pp. 215 & 216.
42 Brookfield, Parliament, the Treaty and Freedom, in Joseph, (ed.) Essays on the Constitution Wellington, New Zealand, Brookers, 1995.
43 Constitution Act 1986, s. 15(1); ‘The Parliament of New Zealand continues to have full power to make laws.’
44 Brookfield, supra, at p. 52.
45 See Sir Robin Cooke, The Suggested Revolution against the Crown, in Joseph, supra., at p. 28.
46 Presently, s. 4 of the New Zealand Bill of Rights Act expressly affirms Parliament’s sovereign power.
47 Compare sections 1 & 33 (the overrider) in the Canadian Charter of Rights and Freedoms.
48 Brookfield, op. cit. note 42, at p. 52; see s. 35 of the 1982 Act for potential difficulties and discussion by the Supreme Court of Canada in R v Sparrow [1990] 1 SCR 1075 (SCC) cited by Brookfield.
49 Joseph, op. cit. note 5 at p. 23; see further Joseph op. cit. fn. 21, 3.8, fn. 219, for Sir G. Palmers innovations.
50 Ibid at p. 23, fn. 129.
51 Arguably, this is subject to ‘fundamental’ common law principles, as discussed by Brookfield supra, at pp. 54-56.
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