Thursday, October 19, 2006



Submission

Below is the first draft of my submission on Doug Woolerton's Principles of the Treaty of Waitangi Deletion Bill. It is based primarily on arguments here, here, and here. Submissions close tomorrow, and I will be emailing it to the Committee, but any comments would be appreciated.

  1. I oppose the Principles of the Treaty of Waitangi Deletion Bill for the following reasons:

    A: The Bill would “kill the Treaty”

  2. It is a well established principle of common law that treaties are not justicable in the courts. This principle has been incorporated into New Zealand law and applied to the Treaty of Waitangi (see for example Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC)). Any legal force the Treaty of Waitangi has depends on the extent of its adoption in statute.
  3. The “standard” Treaty clause, such as that in the State-Owned Enterprises Act 1986, declares that
    Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.
  4. Other clauses, such as that in the Crown Minerals Act 1991 or Resource Management Act 1991, require those exercising powers and functions under the Act to “have regard to” or “take into account” the principles of the Treaty of Waitangi.
  5. More recent clauses such as those in the Local Government Act 2002 or Land Transport Management Act 2003 are narrower, and spell out specific sections of the law enacted so as to fulfil the Crown’s obligation under the Treaty.
  6. All of these clauses exist for a single reason: to give the Treaty legal force. This allows Maori to use the courts to contest government action which is believed to be inconsistent with its obligations under the Treaty (as occurred in NZ Maori Council v Attorney-General [1987] 1 NZLR 641). In doing so, they both remind the Crown of its ongoing obligations under the Treaty, and help to prevent future Treaty breaches. I regard this as a desirable state of affairs.
  7. By contrast, repealing the clauses wholesale would return the Treaty to being (in the words of Justice Prendergast) “a simple nullity”. This is undesirable. The committee should need no reminding that relying on “the conscience of the Crown” has proven manifestly inadequate in the past, and allowed Maori to be systematically dispossessed and robbed of their lands, forests, fisheries and taonga, and pushed to the margins of New Zealand society.
  8. As a side note, it is often claimed that the “principles of the Treaty of Waitangi” referred to in these clauses are vague and undefined. This is untrue. They have been defined by the Waitangi Tribunal [PDF], the Ministry of Justice, and the Courts. Te Puni Kokiri has an excellent summary [PDF] available on its website . This is not a problem of “vagueness”; it is a problem of ignorance on behalf of those too lazy to actually look.

    B. The Bill will affect existing Treaty settlements

  9. The list of Treaty clauses the Bill attempts to repeal includes clauses from six settlement bills. These clauses are very different from those referred to above.
  10. For example, the bill would repeal section 5.1. of the Ngati Turangitukua Claims Settlement Act 1999. This states:
    The Crown acknowledges that, in relation to the construction of the Turangi township, it failed to act towards Ngati Turangitukua in a manner consistent with the principles of the Treaty of Waitangi. The relationship between the Treaty partners obliges the Crown actively to protect Maori interests and the Crown apologises that it did not actively protect the interests of the hapu.
  11. The bill would also repeal sections 6(1), (2)(e), and (4)(c) and section 7 of the Ngati Tama Claims Settlement Act 2003. These state that
    (1) The Crown acknowledges that the wars in Taranaki constituted an injustice and were in breach of the Treaty of Waitangi and the principles of the Treaty of Waitangi.

    (2) (e) the confiscations were wrongful and in breach of the Treaty of Waitangi and the principles of the Treaty of Waitangi.

    (4) (c) that its treatment of the Ngati Tama people at Parihaka was unconscionable and unjust and that these actions constituted a breach of the Treaty of Waitangi and the principles of the Treaty of Waitangi.

  12. These clauses are typical, and are acknowledgements of past wrongdoing by the Crown which underlies these settlements. It is completely inappropriate that they be repealed, and their repeal could be seen as a repudiation of those settlements.

    C. The Bill would interfere with the work of the Waitangi Tribunal

  13. The bill would also repeal sections 6(1)(d), section 8(1), and section 8HB of the Treaty of Waitangi Act 1975.
  14. As with the clauses in settlement Acts above, these are not traditional “Treaty clauses”. Instead, they confer powers upon the Waitangi Tribunal to investigate breaches of the Treaty and recommend action. Section 6(1)(d)1 allows claims to be lodged on the basis of
    any act done or omitted at any time on or after the 6th day of February 1840, or proposed to be done or omitted, by or on behalf of the Crown
  15. Section 8(1) empowers the Tribunal to consider legislation referred to it by the Attorney-General and determine whether it is “contrary to the principles of the Treaty of Waitangi”. To my knowledge the clause has never been used, but it is in principle no different from the power of the Attorney-General to advise on the consistency of proposed legislation with the New Zealand Bill of Rights Act 1990.
  16. Section 8HB empowers the Tribunal to recommend the return of Crown forestry land which is subject to a well-founded Treaty claim. Repealing it may affect the ability of some claimants with well-founded claims to be effectively compensated.
  17. These clauses are vital for the Tribunal to perform its functions, and their repeal would be a mistake.

    D. The bill takes a hatchet to legislation

  18. As a final note, the bill effectively takes a hatchet to legislation. It is as if someone has run a crude search function through the statute book searching for the phrase “principles of the treaty of Waitangi”, and where the “objectionable” phrase is found, deleted the entire clause that contains it irrespective of function or context and without regard to the impact elsewhere in the law. This is clearest in the cases of the settlement Acts (where clauses containing exactly the same reference in Maori are left untouched) and the Treaty of Waitangi Act 1975 (where one of the clauses seems to have been identified in error). This is no way to make law.
  19. I do not wish to make an oral submission to the Select Committee.

Footnote:

1. This clause actually seems to have been identified in error, as the reference to the principles of the Treaty of Waitangi occurs in an encapsulating clause in s6(1). Repealing that clause would effectively strip the Waitangi Tribunal of any jurisdiction.

18 comments:

I would delete this text:
on behalf of those too lazy to actually look.

I don't think it helps to insult politicians (even if you are right).

Posted by Repton : 10/19/2006 05:22:00 PM

Repton: You're probably right, though I'd already deleted the note that this sadly included far too many MPs.

Sometimes though you really do need to call a pig-ignorant fuck a pig-ignorant fuck. And that phrase pretty much describes the cretins who wrote this bill (though that's arguably being unfair to pigs).

Posted by Idiot/Savant : 10/19/2006 05:45:00 PM

The Treaty cuts both ways. It gives rights to Maori, but it also legitimizes the NZ government.

If you don't accept Justice Prendergast's "simple nullity" assertion, then everything Anglo-NZ governments have done since 1840 becomes questionable.

For instance, if you happen to own land that was confiscated from or tricked out of Maori, your title is open to dispute.

I've seen it asserted that because of this the Treaty *is* part of NZ law whether written in or not.

Posted by Rich : 10/19/2006 08:35:00 PM

That was a bit unclear - should read *without the treaty* everything Anglo-NZ governments have done since 1840 becomes questionable.

The settlement process removes private land from liability to repossession by iwi - ending this process could throw it right back.

Posted by Rich : 10/19/2006 08:38:00 PM

Hi I/S,

A. "Kill the Treaty", Generally, Treaties are actually being given more and more force by the courts, however the TOW does not appear to be one of them, (see Sellars and Zaoui). Also, section 9 SOE Act is not a 'standard' Treaty clause, it is perhaps unique in the power it gives the Treaty, most others do much less, (yet in my opinion it is still too weak, a s9 should be placed in every Act as a minimum, resulting in the Crown needing legislative authority to act TOW principle inconsistent).

I am appalled at this Bill, reading s4 Ngati Tama gives me a pride in the recognition of past injustice, and there is no way forward for our nation without such recognition. I guess NZF do not feel the same pride.

The most one could claim to have been ceded by Maori through the TOW is sovereignty. Settler govt owes its legitimacy to the Treaty, the condition of sovereignty being the respect of its terms (or at minimum its principles). Given the Gov Gens role to maintain democratic and legitimate govt at all times, one must wonder if their was ever a better time for the refusal of assent, given the Treaty was essentially signed on behalf of Her Majesty (a point probably lost on certain others suggesting this very move for other means). However I don't believe the bill will proceed so this is just moot.

Best of luck.
james cairney

Posted by james cairney : 10/19/2006 08:40:00 PM

Rich: well, the Treaty doesn't legally legitimise the NZ government - in that a) such questions are beyond the review of the courts; and b) only popular sovereignty can do that anyway. But the extent to which the government keeps the Treaty certainly affects the latter (in that a government which tore up the Treaty would not be seen as legitimate in many people's eyes).

I think its widely accepted that a great deal of what the government has done since 1840 has been "questionable" (and that's putting it mildly). And that is what we're trying to fix. This bill moves things in exactly the wrong direction, precisely by restoring the Prendergastian attitude (prelevant in government until 1950 and still prelevant in certain political parties) that the Treaty is a nullity and Maori don't exist.

Posted by Idiot/Savant : 10/19/2006 09:20:00 PM

James: Treaties are being given more force because they are being explicitly incorporated, or used as an interpretative lens. For example, the Refugee Convention is explicitly mentioned in the Immigration Act, so it has effectively been incorporated into NZ law, while international human rights jurisprudence is being incorporated both because the idea of a preemptory norm (a rule affecting all countries e.g. against torture) has gained sway, and because the wealth of overseas precedent means it is very easy to find a similar problem in a similar enough legal framework to steal the solution.

As for the Governor-General, as I've argued elsewhere, they simply don't have the power to refuse assent. If we want a head of state with veto powers, we need to change our constitution and codify them, rather than relying on monarchical fiction.

Posted by Idiot/Savant : 10/19/2006 09:22:00 PM

Sellars held that UNCLOS applied -unless statute expressly disallowed it- and the minimum you could say about that is it represents a departure from the orthodox view of Treaties and International law in the eyes of our courts. Your view, while conventional, is perhaps dated.

Posted by james cairney : 10/19/2006 09:39:00 PM

I was not serious r.e. the GG, I just felt like drawing a comparison with certain others.

But the power to refuse certainly exists, failure to give assent requires an omission, not an act. He is, of course, under a duty.

Posted by james cairney : 10/19/2006 09:45:00 PM

while i agree with your sentiments, i agree with repton. probably best to maintain your objectivity. experience talking to persons who compile S.C. reports would lead me to believe they will use "extreme" langauge to sideline some submissions. this is especially true when they get loads of them.

not entirely professional, but...

on a different note, i actually agree with the bill going forward and being debated. it will serve two purposes.

one, maybe we can have this incredibly stupid debate aired and shut down once and for all. note to the lunatics out there, "the treaty is here to stay, get over it, morons."

two, considering the current government's ambivalent stance on treaty politics maybe we need to expose what their actual loyalty to those maori voters really is.

Posted by che tibby : 10/19/2006 10:16:00 PM

Che: you're right. At least posting it first gave me the opportunity to vent.

As for the Select Committee report, I don't think it will shut down the debate. While National probably thinks this bill is as much of a crock as I do (and for similar reasons), they've profited too much politically by banging the redneck drum to stop now. So, they'll produce a minority report in support of the bill (probably with amendments, which they will offer up at the committee stage), solely for the purpose of forcing Labour to vote against it so they can then call them "PC" and bang the redneck drum some more.

(Of course, I could be pleasantly surprised, but I doubt it).

Labour made it clear in the First Reading that they were voting for this to keep their word, and that they would not be supporting it any further. That's not a lot of loyalty to Maori voters, but it is some.

Posted by Idiot/Savant : 10/20/2006 12:33:00 AM

Rich, we have a Torrens title system in NZ - the person whose name is on the Certificate of Title is the owner, regardless of how the previous owners got hold of it. The Treaty doesn't come into it, unless it's former SOE land, which shows on the title. The settlement process removes those memorials.

The settlement acts not only apologise and so on, but they close off any further legal action based on the Treaty and its principles. Remove the last part, and suddenly settlements don't look quite so final.

Posted by Trouble : 10/20/2006 10:46:00 AM

"such questions are beyond the review of the courts"

What about the Pitcairn Island litigation - the defendants are asserting that Pitcairn is not a legal British colony and that the colonial government has no right to try them for rape/child abuse.

While they will no doubt lose, I'm assuming that the courts are at least assuming that they have an arguable point?

Posted by Rich : 10/20/2006 12:50:00 PM

Rich: The Privy Council didn't think it was arguable - they squashed that aspect of the appeal in about five minutes, saying that they had "seldom heard such an unrealistic argument".

Posted by Idiot/Savant : 10/20/2006 01:13:00 PM

They may not have thought it was arguable, but they didn't think it incapable of being argued, which is largely the point that was being made

Posted by Graeme Edgeler : 10/20/2006 02:05:00 PM

Pitcairn is a very different set of facts to New Zealand. From what I've read, the courts haven't always been consistent on whether sovereignty stems from the Treaty or discovery or settlement. From the Laws of New Zealand: "British acquisition of New Zealand can be seen to rest partly on discovery, partly on cession, partly on occupation, and partly on assertion ... Other commentators have suggested that, although the Treaty of Waitangi is the legitimate source of constitutional government in New Zealand, the signing of the Treaty only passed nominal sovereignty in 1840 and that substantive sovereignty was ultimately gained through the acquisition, control, and ultimately expropriation of land."

There's a case, I think it was to do with Ian Smith and Rhodesia, that says ultimately sovereignty rests more on the will of the people than any legal niceties.

Posted by Trouble : 10/20/2006 04:23:00 PM

If a treaty is not incorporated into statute then it's "killed" or a "nullity" and maybe even a Prendergastian nullity, which is to say, not a treaty at all (because it was signed by a bunch of savages/children/non-agents)? Can you say "iterated hyperbolic false dichotomy"?

Posted by Anonymous : 10/20/2006 09:00:00 PM

Being a bit new to NZ, I didn't know about the Torrens title system - I do now.

That doesn't really remove the moral claim - or at best it transfers it to the state as guarantor.

Currently, in cases like this one can legitimately say: "go away, there is a treaty process, we are talking to your mates up the road - suggest you participate in that. Without the treaty that argument goes away and turns to "we took it, it's ours, fight us for it if you want to". And I think a lot of people will fight.

Posted by Rich : 10/20/2006 10:12:00 PM