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Incorporating the principles of the treaty: where to from here?

20 Oct 2023

| Author: Reweti Kohere

New Zealand’s lawyers are standing at a crossroads over their future regulation and representation. Much disagreement exists about the creation of a new, independent watchdog and the insertion of a Treaty of Waitangi clause in any new governing statute. The legal profession isn’t sure of the impact a treaty clause would have on its day-to-day work. For some lawyers, te Tiriti plays no role in their practice. For others, however, it’s central to their work.

While the current regulator, the New Zealand Law Society (NZLS), has tried to assuage lawyers’ fears by saying the treaty obligation will be placed only on any new, independent regulator, some in the profession are struggling to understand how this obligation won’t affect the very people the regulator would be overseeing.

And so much detail remains to be worked out. Though the profession is deeply divided on the issue, NZLS has accepted the recommendation in principle. As The Law Association’s president, Tony Herring, recently told members: “It is premature to send a report to the minister before NZLS has reached a clear and consistent position on the review panel’s recommendations.”

The profession’s concern about the role that te Tiriti would play in its regulation is a microcosm for New Zealanders’ anxiety about the future of the treaty. The 200th anniversary of its signing looms on the horizon, but even closer is a proposal from the Act Party to legislate the principles of the treaty and put them to a referendum. The constitutional place of our country’s founding document hangs over us.

Where to from here? Might New Zealanders finally imprint their democratic authority on the principles by affirming or rejecting definitions that Parliament might set down for the first time? Do we continue down the road, slowly and surely, of Crown-Māori relations? Do we try to ask bigger-picture questions: should we formalise our founding partnership in a written constitution? Or might the country embrace what many respected Māori leaders and experts have described as “constitutional transformation”?


No case exists

A new statute for the regulation of lawyers could include the following standalone, overarching treaty clause: “All persons exercising powers and performing functions and duties under this Act must give effect to the principles of Te Tiriti o Waitangi.”

NZLS accepts the draft clause’s current wording will apply more broadly than simply to the independent regulator. Moreover, the independent review panel’s report states a treaty clause would “guide how the regulator engages with the profession and the public and fulfils its functions”. NZLS’ response document states, “the wording of any proposed te Tiriti clause would need to be considered in detail to ensure it is fit for purpose for a professional regulator”.

Many lawyers are not sure how the treaty clause will play out in reality. One lawyer who responded to NZLS’ survey on the panel’s recommendations said he has rarely dealt with Māori issues in his 30 years of practice. “The treaty is not relevant to the vast majority of the work that we do. Therefore, this proposal will create confusion and uncertainty. It is simply the wrong focus for most practising lawyers,” he said. Another respondent said it was “all very well to say we will do this, but we need to actually have a plan”.

Some lawyers are explicitly opposed to the inclusion of a treaty clause. Barrister Gary Judd KC argues that no case exists for creating a new obligation for lawyers to uphold the constitutional principles contained in the treaty for they are already a part of the rule of law. The treaty upholds the rights of individuals and recognises that all are equal before the law, he says. Including a treaty clause “would extend separatism, or the potential for separatism, to the way the profession is regulated and represented and the way lawyers deal with individual members of society.

“NZLS should take the exactly opposite tack. It should advocate for equality under the law and resist any attempt by the government to require the profession to engage in separatism”.

Some basic questions must be answered: what does it mean to give effect to the treaty? Who must give effect to it and when should lawyers honour the treaty? “Only when Māori are involved? Who is a Māori party? Ngāi Tahu Fisheries – is it a party because it’s owned by Ngāi Tahu or is it a fishing company like Peter Talley’s [Talley Group]?” asks Wellington lawyer David Cochrane, a former Chapman Tripp partner and Waitangi Tribunal member. “What about Sealord, which is half-Japaneseowned and half-iwi-owned? You get into a real pickle if you’re trying to say you’d do something different sometimes and not others.”


‘Functus officio’

LawNews sought an interview with the review panel’s chair, Auckland University Professor Ron Paterson, to ask how the principles might be incorporated into an amended Lawyers and Conveyancers Act. In declining, Paterson said in an email: “Our work as the independent review panel was complete and we became functus officio once we delivered our report to the Law Society on 1 March 2023. Particularly now that the Law Society has formally responded to the independent review, I don’t think further comment from me as chair would be appropriate. The report must speak for itself.”

Paterson has, however, responded to similar questions since the panel wrapped up its work, in an interview with The Platform broadcaster (and former Morning Report host) Sean Plunket in May this year. Repeatedly asked what treaty principles had the panel mentioned in its report and where else they could be found and defined, Paterson said he refused to be drawn “into that debate”, only to finally concede he couldn’t articulate what the principles were.

“Surely, they must be codified somewhere?” Plunket asked. “I’ve been looking for them for years and I just cannot find what the principles of the Treaty of Waitangi are.”


An enlightened world

Reflecting te Tiriti in a lawyer’s day-to-day practice, beyond some of the superficial ways Māori culture is honoured, isn’t easy, Bankside Chambers barrister Kingi Snelgar (Ngāpuhi, Ngāti Whakaue, Te Whakatōhea and Ngāi Tahu) accepts. But the District Court’s rolling out of Te Ao Mārama – a judicially led kaupapa designed in partnership with iwi and communities which will take the best initiatives from New Zealand’s specialist and therapeutic courts and embed them throughout all 58 courthouses – will prove a “radical shift” in the administration of justice, he says.

Chief District Court Judge Heemi Taumaunu (Ngāti Pōrou, Ngāti Konohi and Ngāi Tahu), in his Norris Ward McKinnon lecture in 2020, said the promises exchanged between the treaty parties seemed, on one view, to imagine the creation of “an enlightened world, te ao Mārama”, where Māori and Pākehā could prosper together. That vision now extended to include all New Zealanders, regardless of culture or ethnicity. “The District Court response to the calls for transformative change will be known as the ‘Te Ao Mārama model’,” the chief judge said.

Snelgar says the radical shift will require lawyers to know what the treaty means in order to give effect to it. While the profession is improving its understanding, there’s still a way to go. An understanding of te reo Māori and tikanga will be crucial too.

The profession should keep an open mind, he urges. If a commercial lawyer, for example, doesn’t deal with the treaty now, he or she might well do so in the future. “You could argue the rapidly growing Māori economy is going to mean that [the treaty] is not just going to be trendy in criminal and family law, but also commercial property”, Snelgar argues. “The profession needs to – and I think they are – have the foresight to think ‘how can we ensure that in 20 years we are up-to-speed if tikanga is part of the common law?”


All New Zealanders

By 2040, the 200th anniversary of the signing of the treaty, New Zealanders may have had just under 20 years of living under Parliament’s definition of the treaty principles – should the Act Party get its preferred treaty referendum. Pre-election, some 60% of voters in a Taxpayers’ UnionCuria poll would back the party’s proposal to enshrine in legislation what it says are the treaty principles; 18% opposed the legislative proposal and the remaining 22% were not sure. However, less than half of voters (45%) wanted a referendum on the idea; a quarter opposed a nationwide vote and 30% were uncertain.

Already, political leaders are warning of wide-scale social disruption and mass hikoi, the likes of which New Zealand won’t have seen since the 2004 Foreshore and Seabed Act protests, if Act scores a policy win. Before the election, Act List MP Nicole McKee (Ngāpuhi) explained a Treaty Principles Act would be “short but decisive” in defining the principles as:

  • all citizens of New Zealand have the same political rights and duties;
  • all political authority comes from the people by democratic means including universal suffrage, regular and free elections with a secret ballot; and
  • New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal. These principles are based on the party’s interpretation of the treaty articles. Its policy document states:
  • the New Zealand government has the right to govern New Zealand, based on rangatira giving “absolutely forever” the complete kāwanatanga of the country to the Crown on the condition the government couldn’t arbitrarily take their property and that Māori would enjoy the same rights and privileges as British subjects;
  • the government will protect “all New Zealanders’ authority” over their land and other property, based on the article two guarantee that was afforded to chiefs, hapū “and all the people of New Zealand”; and
  • “all New Zealanders” are equal under the law, with the same rights and duties – an “unequivocal” guarantee of equal rights for all, based on an interpretation of “ngā tikanga katoa rite tahi”.


Amputated chieftainship

The interpretations have been swiftly criticised. During The Press leaders’ debate between the minor parties last Tuesday, Te Pāti Māori’s likely MP for Te Tai Tonga, Tākuta Ferris (Kāi Tahu, Ngāti Kuia), said a referendum couldn’t vote away the treaty. “It’s a permanent fixture of the constitution of our country and it is not going anywhere.” Pointing to Act Party leader David Seymour (Ngāpuhi), Ferris called him “treaty illiterate”.

Thorndon Chambers barrister Max Harris on Twitter has warned that Act’s referendum isn’t so much a referendum as it is an “amputation” of article two’s protection of tino rangatiratanga, or Māori chieftainship or absolute authority. In turning the treaty article into a general statement about all New Zealanders’ authority over land and property, Act has distorted its meaning, Harris said. “Put simply: Act wants to amputate tino rangatiratanga from the body of the treaty. They want to take out of te Tiriti o Waitangi the key provision about Māori selfdetermination, authority and sovereignty.”

Auckland University Associate Professor Aroha Harris (Te Rarawa and Ngāpuhi) has made a similar point: while it is technically correct to translate “ki nga tangata katoa o Nu Tirani te tino rangatiratanga” as the authority of all people of New Zealand, the interpretation is missing the context that in 1840, hapū were permitting kāwanatanga to exist as a subset of their tino rangatiratanga.

“A referendum is not a debate,” Professor Harris tells LawNews. “A referendum is a vote. Really, what Seymour is saying is ‘I don’t like the principles that we’ve got and I’m sick of them. We should change them’. To me, that’s not a debate about arguing that we don’t need them,” she says. “That we do need them, to me, is not the debate we need. We need a debate that asks everybody openly ‘what’s the guidance we need here?’”

A referendum is too crude a process for a complex and nuanced matter like te Tiriti. Harris says the framing of referendum questions is problematic as it must always produce a binary yes or no answer, devoid of any subtlety or flexibility. She wonders if there are alternatives. “Do we need to modernise democracy now and think of other ways representation might work? How can you pull your representation to get some push-through at the national level? How can you have a democracy that ensures minorities get listened to? Because we don’t have to [listen to them] if they’re outvoted.”


Constitutional transformation

The Matike Mai report might hold some answers. Established in 2010 at a meeting of the Iwi Chairs’ Forum, the Independent Working Group on Constitutional Transformation was tasked with developing and implementing a model for an inclusive constitution for Aotearoa New Zealand, based on He Whakaputanga o te Rangatiratanga o Niu Tireni o 1835 (The Declaration of Independence), te Tiriti, and other indigenous human rights instruments.

Chaired by Professor Margaret Mutu (from Ngāti Kahu, Te Rarawa, Ngāti Whātua and Scotland) and convened by the late Dr Moana Jackson (Ngāti Porou and Ngāti Kahungunu), the working group attracted participation from 10,000 people across 252 hui between 2012 and 2015. It concluded that any new constitutional model could be properly developed only once there was clarity about any underpinning values.

More thought-provoking was the working group’s six “indicative” constitutional models – indicative partly because “they simply indicate the range of possibilities that are available for those who really want a good faith honouring of Te Tiriti”, it says. Underlying the options is that te Tiriti envisaged the continuing exercise of rangatiratanga while granting a place for kāwanatanga.

One option is a three-way model, where Māori make decisions for Māori in a “rangatiratanga sphere”, the Crown makes decisions for its people in a “kāwanatanga sphere” and the site in which Māori and the Crown work together “as equals” is the “relational sphere”, where a conciliatory and consensual democracy would be most needed.

The working group accepted that some Pākehā would see the process as divisive and threatening or would dismiss it as unrealistic. By contrast, many would accept te Tiriti is about “a constitutional relationship, as every treaty is”.


Rigorous deliberation

The Matike Mai report indicates the status quo is unsustainable, argue Sir Geoffrey Palmer and Dr Andrew Butler in Towards Democratic Renewal. At some point, the working group’s ideas – many of which are “rich in conception” – will emerge onto the political agenda. “We believe that it is preferable to begin the discussion before a crisis point is reached…[Their ideas] deserve to be discussed to see what concrete proposals can emerge from them,” the pair write. In advocating for a written, codified constitution that incorporates the treaty, Sir Geoffrey and Butler note that no other topic they canvassed has generated “such polarised views, nor as much heat” as te Tiriti has. Their initial proposal in 2016 would have required Parliament and the government to give effect to the treaty while empowering the courts to interpret and enforce it – an acknowledgement of the treaty’s foundational constitutional status.

In response to widely divergent submissions, the pair in 2018 accepted that more discussion is needed to determine what te Tiriti looks like in contemporary Aotearoa New Zealand. Their amended proposal suggests the treaty would still form part of New Zealand’s superior law while detailed provisions would be worked out through a “rigorous public deliberation process” to find some reasonable common ground. Collaborating with Matike Mai could be one way to foster discussion with Māori, a process that would have to run alongside discussions with nonMāori. “Reaching finality on these issues is likely to take years… efforts must be made to ensure all views are heard and heeded,” the duo write.

Every 10 years, New Zealand would have to reconsider its constitution. Following a deliberative, democratic consultation process, any amendments would need to receive support from three-quarters of MPs or a majority of voters. “If our approach to the constitution is accepted, the treaty will continue to be central to New Zealand’s ongoing constitutional dialogue; no one generation will lock future generations into a fixed view of the treaty and each generation will have the chance to address it,” Sir Geoffrey and Butler say.

Snelgar, who supports Matike Mai’s fundamental message of a by-Māori, for-Māori approach to constitutional transformation, accepts the working group’s indicative models can be perceived as radical. But “it’s trying to reflect what was agreed in the way that we govern our country. And it’s not uncommon for indigenous people to have self-governance – just look at the US, Canada”, he says. “There are more and more people around the world becoming more and more interested in developing their own institutions, their own nations.”


‘The sour right’

Discussion is always a good thing, says barrister and former Attorney-General Chris Finlayson KC, which is why he doesn’t necessarily disagree with Act’s desire for a public debate on the principles.

But a referendum is not the way to go. There is a risk that “the mad and the bad” will hijack it. “’The veneer of civilisation’, as Margaret Thatcher said, ‘is very thin’ and it doesn’t take much to bring them out,” Finlayson says, remembering the vitriolic letters he received after the Marine and Coastal Area (Takutai Moana) Act 2011 became law. Comments such as ‘how dare you give property rights to people above their station? Why don’t you get cancer?’ he tells LawNews. “I mean, there are some unpleasant people out there. Most New Zealanders are pretty fair-minded people and have bought into what successive administrations have done since Jim Bolger started [the treaty settlement process].

“But there is an element [out there], what was once called ‘the sour right’ – people who dream of a world that never was and never could be. They resent the future, try and stop the waves crashing in. You can’t stop them.” New Zealanders are “practical souls”, says Finlayson, who accepts there are moments in time for “arid” constitutional debates. “I just don’t think now is the time.”

Cochrane fears a referendum will most likely sow the same seeds the Voice referendum in Australia has sown: conflict, division, uncertainty. “I think Seymour is not stupid. He’s lots of things, but he’s not stupid. He knows that, by starting a debate on the principles, it’ll never end, for one thing. And there’ll be a lot of division,” he says. “And he’ll be able to say, ‘I proposed a referendum but you can’t even agree on the question’.”

Why do we want a debate on the principles? he asks. “Because we want to divide the country? Because we want to unify it? Because we want to know whether they create rights or not? You’ve already got the courts and the tribunal in there dealing with that,” Cochrane says. “To me, the answer from Seymour is ‘I want to create havoc. I want the debate because it’ll go on forever and, in the meantime, you can’t put references to the principles of the treaty in a statute because you can’t tell what they are.’ So he might stop new ones being put into statutes.”


A different bedrock

Sandra Goudie, a former Coromandel MP and former mayor of Thames, believes that upholding individual rights and freedoms without punitive action, respecting property rights and treating everyone equally under the law should be the bedrock of any constitution.

“Add to this certainty and clarity in the law, which is fundamental for a just and open democracy. To achieve this, we do not need any more furore over trying to establish ‘treaty principles’ which, as some rightly pointed out, were never referenced in the Treaty of Waitangi.”

Goudie is in no doubt about what needs to be done: state institutions must step up. “The Ombudsman’s Office, the Auditor General and the Law Commission should require better outcomes than a declining quality of our law, with its increased uncertainty, lack of clarity, disenfranchisement of people’s rights and lack of understanding in practical application.

“Where is the integrity and efficacy of the law when Parliament itself does not value the construct of it enough to do it well? And using the majority position of power to push through law which is un-costed, ill-conceived and with little empirical data to support it?” Goudie is now asking the Ombudsman’s Office to remove all reference to the treaty principles. “New Zealand and its people have survived thus far without them.”


The starting line

If the election is any indicator, achieving a consensus on te Tiriti will be impossible. Snelgar says the political climate is the most toxic he’s observed since Don Brash’s Orewa speech as National Party leader in 2004. “We are miles away from being ready to engage in any constitutional dialogue in a meaningful way because some people don’t even accept that Māori are indigenous, some people don’t accept the treaty.”

In a nod to Matike Mai, identifying the values that all New Zealanders share could help. “You can bring people together based on shared values, so that might even just be a dialogue that needs to happen independent of how those values might be reflected in any framework,” Snelgar says.

“My concern at the moment is it’s not a pleasant time to be Māori. It’s not a really pleasant time to talk about anything to do with indigenous rights. It’s not very healthy for our country because of the way our politicians are capitalising on ignorance and fear of Māori rights.”

Continuing to debate the principles will impede progress, Cochrane says. Instead, effort should be directed at how the basic obligations created under the treaty can help solve the myriad of crises afflicting our systems.

“Someone put it to me one day that it’s not just a case of throwing money at things – but money is a big part of it. It’s like saying everybody can participate in a running race, but some of us have got the latest track shoes and have been well-nourished and well-fed and trained. Some of us are running in boots and we haven’t eaten enough protein and nobody explained to us what training was,” he says.

“Pull the trigger and guess who wins the race? It’s more a case of trying to even up the starting line…because you’ve got inequities at the moment. You’ve got too many Māori prisoners relative to their population. You look at it and go, ‘why?’” ■


Journalist Rod Vaughan also contributed to this story ■

Part 1 of the series can be read here and part 2 can be read here

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