It has been reported publicly that 42 King’s Counsel have signed a letter addressed to the Prime Minister and the Attorney-General. They urge the Prime Minister to “act responsibly now and abandon” the Treaty Principles Bill which had just had its First Reading. This, notwithstanding that Christopher Luxon had (a) committed to the ACT party that National would support the introduction of the Bill as a condition of ACT agreeing to form a Government with National; but (b) stated publicly that he would not support the Bill at its Second Reading. I was asked to sign the letter but after reading a draft and also the Bill declined to do so.
Following the sending and publication of the letter, I have been asked by several lawyers and non-lawyers whether I had signed the letter. In each instance, the person enquiring has expressed surprise and/or disapproval that KCs had banded together and written such a letter. As the senior practicing KC in New Zealand, I feel it is reasonable that I should explain my reasons for not signing the letter. These are discussed as 2 issues:
- Was it appropriate for KCs collectively to send such a letter?
- Does the Treaty Interpretation Bill offend constitutional or legal principle?
Appropriateness of KCs sending the letter
There is clearly nothing wrong with an individual King’s Counsel taking a public stand on an issue of public importance – indeed that is to be encouraged. Through their representative bodies – the Law Society and the Bar Association – the views of all lawyers on what are often contentious issues are frequently made known. Why then do I have misgivings about what has happened here?
In essence, I think that KCs should not be acting collectively, using the status of their appointment, to enter the political arena in a manner that they must know will achieve nothing and, given the assurances that National will not support the Bill into law, is an exercise in futility. To me, that is demeaning of the rank of King’s Counsel and undermines the principles of individual independence and political neutrality that should characterise a King’s Counsel.
The Treaty Principles Bill
The term “Treaty principles” has been previously used in a number of different legal contexts. It was employed throughout the Treaty of Waitangi Act 1975 which established the Waitangi Tribunal with power principally to investigate and determine land claims. The Preamble to the Act recites that differences exist between the English language and the Māori language versions of the Treaty and that “it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are consistent with those principles”. Section 5(2) of the Act confers exclusive jurisdiction on the Tribunal to determine the meaning and effect of the Treaty. Section 8 empowers the Tribunal to consider a claim by any Māori or group of Māoris that is or is likely to be prejudicially affected by a statutory instrument or Crown policy or any act (or omission) done by the Crown that is said to be “inconsistent with the principles of the Treaty”. And by section 8 the Tribunal can examine proposed legislation referred to it by resolution of the House or by a Minister of the Crown to determine whether any provisions of the proposed legislation are “contrary to the principles of the Treaty”.
Subsequently, the State-owned Enterprises Act 1986 provided in section 9 that nothing in the Act “shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”.Notably, neither the Treaty of Waitangi Act 1975 or the State-owned Enterprises Act 1986 provided a definition of “Treaty principles”, thereby leaving it open to the Tribunal and the Courts to spell them out from the text of the Treaty. Cooke P attempted to do so in dealing with a claim that the transfer of Crown land to State-owned enterprises was contrary to Treaty principles: New Zealand Māori Council v. A-G [1987] 1 NZLR 641. He did this by categorising the relationship between the parties to the Treaty as being one of partnership which created responsibilities analogous to fiduciary duties. In the case of the Crown, he said, these extended to active protection of the Māori people in the use of their lands and waters and, in the case of Māori, required “a duty of loyalty to the Queen, full acceptance of her Government through her responsible Ministers, and reasonable cooperation.”
Other Court cases involving the application of section 9 of the SOE Act followed. Notable among these was one where Māori challenged a transfer of radio assets to a new SOE. It was claimed that the Crown would be failing in its duty to protect a valued Māori asset, namely the Māori language. This case went to the Privy Council: New Zealand Māori Council v. A-G [1994] 1 NZLR 513. It was there stated that “the ‘principles’ are the underlying mutual obligations and responsibilities which the Treaty places on the parties. They reflect the intent of the Treaty as a whole and include, but are not confined to, the express terms of the Treaty.” The Privy Council continued: “With the passage of time, the ‘principles’ which underlie the Treaty have become much more important than its precise terms” As it then said: “Foremost among those ‘principles’ are the obligations which the Crown undertook of protecting and preserving Māori property, including the Māori language as part of taonga, in return for being recognised as the legitimate government of the whole nation by Māori”.
I note that Principle 1 of the 3 principles stated in the current Principles of the Treaty of Waitangi Bill is in almost identical terms: “The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws – (a) in the best interests of everyone; and (b) in accordance with the rule of law and the maintenance of a free and democratic society”.
Principle 3, arguably, does not create any new law either. It provides “(1) Everyone is equal before the law. (2) Everyone is entitled, without discrimination, to (a) the equal protection and benefit of the law; and (b) the equal enjoyment of the same fundamental human rights.” Professor Dicey, in his famous work The Law of the Constitution, said (1) in 1885. (2) is the effect of the New Zealand Bill of Rights Act.
That leaves Principle 2. This provides that the Crown recognises and will respect and protect the rights that hapu and iwi Māori had under the Treaty of Waitangi “at the time they signed it” but “if those rights differ from the rights of everyone” the primary right to Crown protection “applies only if those rights are agreed in the settlement of a historical treaty claim under the Treaty of Waitangi Act 1975”. This does seem to me to be more questionable. On one view, it could be foreclosing any future Māori land claims which leaves the land claim jurisdiction of the Tribunal in an uncertain and invidious position.
On balance, I think that Luxon is right to withdraw his continued support for the Bill. The Courts, in the cases discussed above, have, in my view, adequately articulated a workable juridical analysis for the application of Treaty principles on a case-by-case basis. I remain in doubt as to whether Luxon needed the full weight of 42 King’s Counsel to force him to proceed as he has consistently said he intends to do.
Jim Farmer
20 November 2024