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Why the Treaty of Waitangi should not be part of the Lawyers and Conveyancers Act

10 Nov 2022

| Author: Gary Judd KC

This submission challenges the presupposition in the NZLS discussion document reviewing the legal profession that the Treaty of Waitangi should be incorporated into the Lawyers and Conveyancers Act 2006.  The discussion document states: Applying a Te Tiriti o Waitangi lens Te Tiriti o Waitangi is not just a discrete component of this review. We have endeavored to apply a Te Tiriti and tikanga Māori ‘lens’ across all the issues in the Terms of Reference. We are particularly interested in views as to how the statutory and regulatory frameworks might need to change to reflect our country’s commitment to Te Tiriti. The Act makes no mention of Te Tiriti or Māori and there is no requirement for the NZLS to promote or have regard to the interests of Māori.

The only constitutional document the discussion paper identifies is the treaty. There can be no sensible discussion of whether there should be a new obligation for lawyers to uphold the constitutional principles of Aotearoa New Zealand (apart from the treaty) if those principles are not identified.

The important part of the treaty in the context of the matters raised by the discussion paper is the treaty’s commitment to equality before the law. That is what this submission is mainly about. Before I elaborate on that, I mention another aspect of the treaty, which is relevant to New Zealand’s constitution, where NZLS may have a part to play.


Crown to govern 

The treaty acknowledged that the Crown was to govern New Zealand. There is no doubt about that. In the lands case – New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 – the Court of Appeal did not hold that the treaty created a partnership between Māori and the Crown to give Māori a right to participate in governing New Zealand.

Parliamentarians having abdicated their responsibility to define the principles of the treaty, it was left to the Court of Appeal to do it. The court drew on partnership principles when holding that “the treaty created 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 towards the other” (Te Runanga o Wharekauri Rekohu Inc v Attorney[1]General [1993] 2 NZLR 301, 304-305, per Cooke P for the Court of Appeal).

The Court of Appeal did not suggest an actual partnership which is an absurd departure from the words of the treaty. It is also ridiculous to suggest there could be actual partnership between the Crown, which is a legal entity, and a race, which is not.

The Court of Appeal did not endorse such preposterous ideas, as was shown in its decision just two years later in Tainui Maori Trust Board v Attorney-General [1989] 2 NZLR 513. The court’s decision was delivered by the President, Sir Robin Cooke. His words at 530 decisively demonstrate that government was yielded to the Crown, by stating emphatically:

The [Tainui] case shows that the principles of the Treaty of Waitangi, outlined in [the “lands” case], are taking effect only slowly but nevertheless surely. It is as well to stress also that they are of limited scope and do not require a social revolution…. It is obvious that, from the point of view of the future of our country, non-Maori have to adjust to an understanding that does not come easily to all: reparation has to be made to the Maori people for past and continuing breaches of the Treaty by which they agreed to yield government. Lip service disclaimers of racial prejudice and token acknowledgments that the Treaty has not been honoured cannot be enough. An obligation has to be seen to be honoured. On the Maori side it has to be understood that the Treaty gave the Queen government, Kawanatanga, and foresaw continuing immigration. The development of New Zealand as a nation has been largely due to that immigration. Maori must recognise that it flowed from the Treaty and that both the history and the economy of the nation rule out extravagant claims in the democracy now shared. Both partners should know that a narrow focus on the past is useless. The principles of the Treaty have to be applied to give fair results in today’s world.

It can’t be much plainer. The principles are of limited scope. They do not require a social revolution. By the treaty, the tribal leaders yielded government. The treaty gave government, Kawanatanga, to the Queen. Extravagant claims are ruled out. New Zealand is a democracy in which we all share. Based on what Cooke P said, NZLS could responsibly take a stand and confront the extravagant claims in the democracy now shared, disingenuously based on the treaty. We do not want a revolution, even a social revolution, with a radical departure from the democratic principles which Western civilisation has so painfully come to adopt as infinitely preferable to the wielding of power by people who cannot be removed except by force. Giving credence to extravagant claims is leading in that direction. Note the comments of Dame Anne Salmond quoted below.

No case

In my submission, there is no case to create a new obligation for lawyers to uphold the constitutional principles of Aotearoa New Zealand contained in the treaty because the applicable principles (that is to say, those which impinge upon the obligations of lawyers) are already incorporated in the obligation to uphold the rule of law.

The constitutional aspect concerning yielding of government to the Crown, as discussed above, concerns lawyers differently from the rest of society only because, as lawyers, we seek to uphold the rule of law and are expected to know what that means. That may cast upon us an obligation to speak out when judicial pronouncements are distorted. The rule of law requires equality under the law, as does the treaty. NZLS should not be supporting any approach which might be thought to support inequality under the law, as that undermines the rule of law and is contrary to its members’ fundamental obligation to uphold it. Independence in providing regulated services to clients, acting in accordance with all fiduciary duties and duties of care owed to clients and the obligation to protect the interests of clients must all give way to the fundamental obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand.

This is recognised by the exception contained in s 4(d) of the Act, the overriding duty as an officer of the High Court and under any enactment. The duty as an officer of the High Court reflects the obligation to uphold the rule of law and to facilitate the administration of justice. The duty under any enactment reflects the obligation to uphold the rule of law, although sometimes the duty to uphold the rule of law may conflict with the duty under an enactment where that enactment is itself in contravention of the rule of law. Where that happens, lawyers may have an obligation to draw attention to it.

The superordinate fundamental obligation is not just a creature of the 2006 Act but is intrinsic to the role of the legal profession in society, as that role has developed over centuries. The profession has the important constitutional function of protecting and advancing the rights of each person within our society without fear or favour, for the weak and the strong alike, with particular emphasis on the need to protect the individual from government abuse of the right each individual has to go about his or her business and affairs without restraint other than what is necessary to prevent the individual from impairing the like freedom of others.

The most important ingredient of the rule of law, that each person within society is equal under the law. Regrettably, New Zealand society is today under onslaught from those who would use the treaty as a vehicle to undermine that cardinal principle. That use of the treaty is entirely illegitimate because the treaty does not support departure from the principle. On the contrary, the treaty requires compliance with it.

Equality under the law

Dame Anne Salmond ONZ DBE FRSNZ is a New Zealand anthropologist, historian and was New Zealander of the Year in 2013. In a series of articles published by Newsroom in late 2021, which are collected here, Dame Anne demonstrated that the treaty supports the equality under the law principle. The thrust of what she says is that the treaty recognised individuals and guaranteed equality between them.

In Part Two Te Tiriti, she says: [By Article 3], in exchange for their agreement to Kāwanatanga, the Queen promised to look after ‘nga tangata maori katoa o Nu Tirani’ (all of the everyday persons (pl.) of New Zealand), and to give to them ‘nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani’ – all the tikanga exactly equal to those of her subjects, the people of England. According to the Williams dictionary, in 1840 ‘maori’ meant ‘ normal, usual, ordinary;’ and ‘nga (pl.) tangata maori o Nu Tirani’ described the normal, usual inhabitants of New Zealand as individuals. The use of ‘Maori’ as a noun to describe an ethnic group came later. Likewise in the Williams Māori dictionary, ‘rite’ is translated as ‘equivalent, balanced, alike’ – not ‘identical’…. The third Ture (the ‘Queen’s Promise’) is a pledge of equality (not identity) and balance between the tikanga of the everyday inhabitants of New Zealand and the Queen’s subjects, the people of England (ie the settlers) as individuals, and of equal return in the exchanges between the rangatira and the Queen.

Dame Anne’s commentary shows that the treaty focuses on individuals – the everyday persons of New Zealand and the settlers as individuals – and required the Crown to guarantee exact equality in the treatment of all these as individuals. Dame Anne shows that the Queen’s Promise is a pledge of equality, “(not identity)”. What she is getting at when she says “(not identity)” is shown by her earlier discussion of the European way of looking at things, a way of dividing things and people into mutually exclusive units, a separatist approach.

The treaty enshrines a different approach but, she asks, is the old European divided approach asserting itself? Current debates that seek to revive animosities between ‘iwi’ vs ‘Kiwi,’ for example, are classic Cartesian devices – anachronistic, divisive colonial throwbacks.… What would a whakapapa-based approach to Te Tiriti look like, in a country where an increasing number of citizens have whakapapa that include Māori, Pākehā, Pasifica and many other non-Māori forebears and whānaunga. By “(not identity)” when speaking of the Queen’s Promise, she means that the treaty was guaranteeing equality between individuals, individual Māori and individual settlers alike, not between Māori as a collective and settlers as a collective. “The use of ‘Maori’ as a noun to describe an ethnic group came later.” “Iwi vs Kiwi” was not in the treaty lexicon.

In part five, Dame Anne identifies what is happening today when she says: Ironically, in seeking to reshape the future, the government and its advisors have set aside the chance to experiment with whakapapa and ideas of complex systems, turning instead to old colonial habits of mind, including Cartesian dualism with its silo thinking. And she concludes with these words: The promise of Te Tiriti, couched as it was in the language of chiefly gift exchange, was to enhance the mana of all parties, and to bring people and their tikanga together as equals, as Ture 3 clearly states – a future based on reciprocity and mutual respect. With He Puapua and its critics, however, the government has lost sight of this promise – as also happened after Te Tiriti was signed, leading to racial antagonism, violent conflict, and bitter and lasting anger. By focusing debates around Te Tiriti on this document, the government has gone down a rabbit hole, with no ready exit in sight. History should teach us not to keep on making the same mistakes.

Dame Anne’s message is that we must not allow history to repeat, and we can do so by bringing people and their tikanga together as equals, a future based on reciprocity and mutual respect, which is what the treaty promised.

My observations

Some observations of my own support Dame Anne’s analysis of the treaty. On the one side, there is the Queen represented by her agent, Hobson. On the other side, there are the Chiefs who signify their acceptance and agreement to “the shape of these words” by signing.

Once it is understood as a compact between legal entities – the Queen or the Crown on one side and each of many individuals on the other (the chiefs who sign) – there is no reason to suppose it not to be a perfectly valid agreement, although it has no status in domestic law unless expressly made part of domestic law by domestic law. By contrast, a compact when at least one of the parties is a race is conceptually impossible. A race cannot put its mark on a document.

The treaty’s preamble and the attestation reinforce what Dame Anne says, that it “was negotiated as an alliance between Queen Victoria and the rangatira of various hapū.” Therefore, it is shown by the treaty’s te Reo text that the treaty upholds the rights of individuals and recognises that all are equal in the eyes of the law.

The discussion document states, “The Act makes no mention of Te Tiriti or Māori and there is no requirement for the NZLS to promote or have regard to the interests of Māori.” But why should NZLS promote or have regard to the interests of Māori differently to the interests of any other person, and consider seeking to have imposed on it and/or on lawyers a legal obligation to do so?

This suggests a desire to promote or have regard to the interests of Māori as a separate racial or ethnic group by giving Māori separate and different treatment under the law in new legislation. This may be a fashionable approach in some circles, but NZLS should act on principle. It, like the lawyers who are its members are required by law to do, should seek to uphold the rule-of-law principle of equality under the law.

NZLS should do nothing to suggest it is advocating or condoning ethnic or racial separatism. Nor, indeed, should it promote cultural separatism. As conveyed by Dame Anne’s message, we should seek a future based on reciprocity and mutual respect, as individuals entitled to be treated as equals in the eyes of the law, which is what the treaty promised. Does anyone really want to disagree with that?

NZLS should be doing everything it can to promote equality of individuals in the eyes of the law. One way of doing that would be to point out that the treaty upholds the rights of individuals and recognises that all are equal in the eyes of the law. NZLS should not promote the inclusion of upholding the treaty in the purpose statement in the Act (s 3). That would just open the way for people to use the new legislation to advocate different treatment based on ancestry (ie, race). It 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.

Conclusion 

This submission has in large part concerned a discussion of the meaning of the Treaty. This was necessary because of unfounded assumptions about what it requires, and the use of those assumptions to proceed as if it is a given that NZLS is under some sort of obligation to accept those assumptions as correct. I submit that the proper role of NZLS as a representative of lawyers is in this context to undertake a critical analysis of the assumptions contained in the discussion paper and, unless they are verified, to refuse to proceed as if they are a principled basis for legislative change.

As upholding the rule of law is the superordinate fundamental obligation of every lawyer, it must also be NZLS’ superordinate fundamental obligation, for it would be entirely inconsistent for every lawyer to be subject to the obligation and their representative not to be. Just as s 4 contains obligations on lawyers which are subordinate to the superordinate fundamental obligation, NZLS’ representative functions requiring it to represent its members and serve their interests (s 66) must implicitly require NZLS to uphold the rule of law in representations it makes concerning new legislation.

The way to promote a positive and diverse culture within the legal profession is by heeding the Universal Declaration of Human Rights, which commences: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world….Article I All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

The touchstone should be that all are born free and equal. A declaration of the General Assembly of the United Nations is a non-binding resolution, but a convention is a binding agreement imposing obligations on New Zealand as a State. New Zealand is a party to, and under international law is bound by, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), ratified by New Zealand in 1972.

CERD says racial discrimination means “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. The words “on an equal footing” should be noted for they are in alignment with the rule of law’s emphasis on equality before and under the law.

Under CERD, New Zealand, along with the other State parties, undertook to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law. Whilst CERD contains provision for what might be called positive discrimination, this permission is carefully circumscribed and in particular may only be temporary. Permanent, structural discrimination is outlawed.

These international declarations and obligations emphasise how wrong it would be for NZLS to promote legislative change which condones distinction, exclusion, restriction or preference based on race or descent. If speaking for lawyers, NZLS should be principled. It should not advocate anything which would put New Zealand in contravention of its international law obligations, and it should not advocate anything contrary to the rule of law’s requirements. The position of the individual lawyer who is a member of NZLS must also be considered. The idea, suggested in the discussion document, that lawyers might be required “to uphold the country’s constitutional principles, including Te Tiriti,” is abhorrent.

For a start, what is that they might be required to uphold – the law according to Sir Robin Cooke’s Court of Appeal, that the treaty gave the Queen government? Or the current reconstruction that government was given to a partnership of the Crown and Māori? Must we uphold the view that I subscribe to, that the treaty guaranteed equality of individuals (not identity)? Or the revisionist view that it created race-based separatist entitlements to special treatment, as well as guaranteeing protection of the property held by iwi, hapū, whānau and individual Māori on 6 February 1840?

As lawyers, we should be concerned with any legal obligations which flow from the treaty. The discussion document would have been more helpful had it outlined what were considered to be those legal obligations. Then, one could reflect on whether they were relevant to the statutory and regulatory framework for the legal profession.

I would say, with Sir Robin Cooke and his Court of Appeal, that by signing the treaty the Crown accepted a positive duty to act in good faith, fairly, reasonably and honourably when dealing with the obligations it undertook. I would say the obligations were to protect the chiefs, the subtribes and all the ordinary people of New Zealand (that is to say, the indigenous people as at 6 February 1840) in the unqualified exercise of their chieftainship over their lands, villages and all their treasures (subject to their right to alienate to the Crown), and to protect the ordinary people of New Zealand and give them the same rights and duties of citizenship as the people of England. Giving them the same rights and duties of citizenship as the people of England was a pledge of equality.

It does not appear to me that there needs to be any change to the statutory and regulatory framework to reflect the obligations which the Crown undertook. I do think that in the exercise of its representative function, NZLS ought to remind those who need to be reminded of what Sir Robin Cooke said in the quotation from the Tainui case: the principles are of limited scope and do not require a social revolution.

Attempts to promote one are divisive and stop the treaty from being “a positive force in the life of the nation” (lands case, at 682 per Richardson J). ■

Gary Judd KC is an Auckland barrister ■

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