Tuesday, March 23, 2004

More on Treaty clauses

Both KiwPundit and NZPols have responded to my post on Treaty clauses. They're worth reading in full. Meanwhile, here's some comments:

KiwiPundit says

I absolutely believe that the Treaty should be enforced by statue, or even better by a binding constitutional document, and that parliament should enact whatever is necessary to make this happen.

At the same time, he thinks Treaty clauses are really only relevant insofar as crown property is subject to a Treaty claim. I disagree - the clauses tend to apply to powers exercised under an Act, not just to property. To take the example of the Crown Minerals Act 1991, the Treaty clause would apply to attempts to grant exploration or extraction rights to minerals (crown property, unless its pounamu) under land of special significance to Maori - such as burial sites, archeological sites, or sites of spiritual significance. The standard language doesn't rule out granting such permits, but it probably imposes a duty to consult. I think it would, however, rule out something like extracting a hypothetical gold deposit within Mt Taranaki by mountaintop removal.

Because his view is centered around property, KiwiPundit thinks the clauses are overused. I'm not so sure, but think we should be cautious all the same. We should use Treaty clauses where we think they are necessary, but we probably shouldn't write them into every piece of legislation.

NZPols asks whether I'd support adding a clause against expropriation without compensation to our Bill of Rights? While I don't think property is absolute in any sense of the word, I'm generally in favour of the government compensating people if they forcibly acquire it, so I don't think its a bad idea (obviously, it would have to be made clear for the benefit of the wingnuts that it doesn't apply to taxes, having to fill out PAYE forms, or any of the other stuff they denounce as "slavery").

The reason for the focus on Treaty clauses as a preventative measure in my post was because it's the area where lack of enforceability has so obviously led to gross injustices in the past.

The questions about other possible treaties are interesting. Certainly an arrangement whereby British settlers were allowed to live here under Maori sovereignty as full citizens would have been acceptable. An arrangement whereby Maori sold themselves into slavery would not be. The difference between the former and latter (and latter and actual) case is that one treaty would have been morally repugnant on its face, and therefore not binding. I don't think the actual Treaty was morally repugnant - but the way in which we violated its letter and spirit was.

Her interpretation of the Treaty as a straight-out contract is I think how many people think of it, at least as regards property rights - which is why its so shocking when you read for the first time that early judges thought it wasn't binding. There's one early judgement in the Native (now Maori) Land Court which takes a similar approach: the Kauwaeranga judgement, in 1870 (sorry, no URL). Unfortunately, it was a novel interpretation, and our judges seem to have preferred using the established international law jurisprudence instead.