The importance of "Treaty clauses"

Disclaimer: I am neither a lawyer nor a specialist in New Zealand history. Other people, such as KiwiPundit or NZPols are almost certainly better qualified to speak on this subject than I am. But they're not talking about it, so I might as well.

Don Brash has talked about removing "Treaty clauses" from legislation, condemning them as both vague and an example of "Maori privilege". What are they and why are they necessary?

Firstly an example: Section 4 of the Crown Minerals Act 1991:

All persons exercising functions and powers under this Act shall have regard to the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

That's a fairly standard case; the RMA, Local Government Act 2002, even the Foreshore and Seabed Endowment Revesting Act 1991 all contain similar language. Some laws use stronger language, such as "nothing in this Act shall permit the Crown to act in a manner that is inconsistent with", or even "this Act shall give effect to" Treaty principles, but most recent legislation uses some variation on the standard "have regard to" boilerplate.

What do these clauses do? To put it bluntly, they are literally what gives the Treaty of Waitangi legal force.

This immediately raises the question of whether we want the Treaty to have legal force. Yes and no. It's our founding document, but not a formal constitution - it doesn't contain enough specifics to fill that role. There is tension between the articles - the clashes between sovereignty vs. property rights and property rights vs. equal citizenship are occupying the popular consciousness at the moment. At the same time, looking at history, there are parts of it (primarily relating to Article Two) which we very definitely want to be legally enforceable, because it's a hell of a lot better than the alternative.

That alternative - the Treaty being unenforceable in the courts - held sway for most of the 164 years since it was signed, and it allowed Maori to be legally robbed. The Treaty was viewed primarily through the framework of international law, and jurisprudence and precedent in that area was geared toward the interests of established European nation-states and colonial powers. Only states with a defined territory and a government "to which the population renders habitual obedience" were legal persons capable of making enforceable contracts in international law. So when the inevitable teething problems occurred and Maori went to court seeking to enforce their bargain, those same courts turned around and said

"You can't possibly imagine that this is binding, can you? You're just savages!"

(There's an Eddie Izard routine in that, I think)

This view of the Treaty as "a simple nullity" (in the words of one judge) allowed Maori to be systematically dispossessed. Not being states, the chiefs could not enforce the Treaty as a contract under international law - and because no serious effort was made to recognise it in legislation, it had no power in domestic law either. As a result, Maori were robbed of their lands, estates, forests and fisheries, and relegated to the margins of New Zealand society.

Treaty clauses in legislation change that. By recognising the Treaty, or at least its principles, they allow it to be enforced through the courts. Government action which is grossly inconsistent with those principles can be restrained by injunction, allowing time for a political solution to be worked out. They're an effective curb on government behaviour, a reminder that Maori are equal participants in this nation (something past governments have been keen to forget), and a way of discouraging and preventing future Treaty breaches.

(It's important to note that Treaty clauses are not a general provision; they're written into a small number of laws relating primarily to land and fisheries and how they are managed. And these are precisely the bits where enforcement is most needed...)

The effects of repealing these clauses ought to be obvious: kill the clauses, and you kill the Treaty. It returns to being an unenforceable nullity, with justice dependent on "the conscience of the Crown" - an approach which has been manifestly inadequate in the past.