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Mapp Speech To Maori Legal Forum

Dr Wayne Mapp National Party Treaty and Constitutional Issues Spokesman

Speech to the 3rd Annual Maori Legal Forum: Time for constitutional clarity Constitutional Values

The last few months have seen an intense examination of our nationhood. On the surface it has been about race relations. But in a deeper sense it is a debate about the values that underpin our democracy. There should be little question that the idea of equality before the law is the most fundamental requirement of any democracy. The democratic idea rests on the notion that we are all equal. This is why the great constitutional debate in New Zealand is whether the Treaty of Waitangi confers upon Maori a special status within our democracy. This is not a discussion about interests that Maori have in their land and other resources. At its heart is the question of whether Maori have a privileged constitutional status, with a greater say in government than other New Zealanders. Of course, such a status appears to run counter to the most fundamental principle of democracy - equali

At the heart of the Treaty of Waitangi debate there is a nebulous concept - "the principles of the Treaty". This phrase is found in a number of statutes and, in particular, section 9 of the State Owned Enterprises Act 1986. It has been interpreted liberally by the courts to confer a broad right of consultation, by virtue of being a Treaty partner. The concept is used to justify a special and unique involvement by Maori in virtually all aspects of public life. Of course, it begs the question: "How did "the principles of the Treaty" come to be interpreted in this manner?"

It is clear that Parliament has failed to provide guidance on this important question and in doing so has failed in one of its most basic duties to provide clarity in the law. It is this failure that, if not corrected, will get us into a serious constitutional situation. The lack of clarity has led to dramatically divergent expectations about the role of the Treaty of Waitangi in the constitution. This will lead to division and disharmony.

What does the Treaty say?

One of the reasons this nation is struggling with the Treaty is confusion over the meaning of the Treaty itself. There are various versions of the Treaty set out in case law and statute. The situation is further complicated by a lack of clarity about how the contradictions between the English and Maori texts are resolved.

It would seem axiomatic that the meaning of a fundamental constitutional document should rest on the words of the document. Subsequent discussions by politicians or officials should not matter - we should be able to look at the document, and at what it says, in both languages and discern the meaning from that.

It is simply false to say that one can look just at the Maori text and ignore the English text. Since the Treaty is in two languages, it is necessary to bring the two texts together, in order to find the common understanding. When various commentators say we should only look at the Maori text, they are ignoring a basic principle of international law - namely the consensus ad idem (the meeting of minds). It requires understanding what the parties agreed to. What was their common understanding of the agreement?

That is why the Kaituna River claim (Wai-4 November 1984) was so important. The Waitangi Tribunal sought an understanding of what the two parties thought in 1840. Sir Hugh Kawharu, in his evidence before the Tribunal, set out what he thought Maori understood they were giving up. He said that at the very minimum, Maori knew they were giving up these things: "that part of their mana and rangatiratanga that hitherto had enabled them to make war, exact retribution, consume or enslave their vanquished enemies and generally exercise power over life and death." 1 <>

These are the essence of sovereignty. Sir Hugh makes it clear that Maori knew they were surrendering the fundamentals of their international personality. But there was a trade-off, clearly. People do not surrender sovereignty lightly or for no good reason. They do so because they are going to gain benefits.

The benefits being gained by Maori were clearly the protection of their property, both physical and cultural - including language. But it also meant the end of conflict between Maori. It was the expectation that British rule was not just about settlement by settlers - it was also about bringing peace to the country as a whole.

In fact what Maori opted for was the virtue of English government where there are some fundamental values that provided legitimacy to English government. They were the rule of law and representative government. These were well known to Maori in 1840. These values had appeal to Maori, who had had the opportunity of 50 years contact with European powers to see how European government operated. In the 30 years prior to 1840 there had been extensive trade, travel by many Maori to New South Wales and Britain, and extended missionary education, especially in the North. The extensive musket wars and the likelihood of uncontrolled settlement were incentives for Maori and the Crown to choose a more considered course through a formal agreement.

The Principles of the Treaty and the Courts

The courts, in a series of landmark decisions, have interpreted the meaning of "the principles of the Treaty". They have taken the opportunity to indulge in constitutional law making, normally considered the domain of Parliament. The cases include the Lands [1] case from 1987, the Tainui [2] case from 1989, the Fisheries [3] case from 1992, the Broadcasting Assets [4] case from 1992, the Whale Watching [5] case from 1995, and others. They had to do so because "the principles of the Treaty" are specifically referred to in many statutes, most notably the State Owned Enterprises Act 1986. [6]

The history of the intention of the words is notable. They were inserted at a very late stage of the legislative process without Select Committee consideration. It seems unlikely the Government considered they would have such far-reaching impact. However, Parliament has included these words in later statutes, after the decisions of the courts were well known to legislators, and thus must be considered complicit in the way the courts have acted.

Certain concepts have been distilled by the courts. The courts have taken the words "the principles of the Treaty" and developed a whole body of jurisprudence out of them. The essence of the jurisprudence centres on the notion of a partnership between the Crown and Maori - at least in relation to particular assets and interests. It includes a duty of the Crown to act in good faith, and the idea of a fiduciary relationship. This last concept was used as an analogy, rather than actually being a fiduciary relationship. It is a difficult concept for most people to grasp in any case. In practice, in relation to the Treaty, the issues of fiduciary relationship and partnership are, to say the least, controversial. Judges have developed these concepts without Parliament being directly involved, beyond providing the phrase "the principles of the Treaty" in legislation.

Normally, when the courts interpret constitutional documents, they would not be expected to move so far beyond the text of the document itself. People would have rightly expected that the courts would say that the principles must have a very close relationship with the text of the Treaty. Many lawyers, academic observers and others [7] - including myself - would say that the courts have gone well beyond that. The courts have created a whole new body of constitutional law based on the idea of partnership. This has become a guiding principle of government, now widely reflected in legislation passed by the current government, including the Local Government Act 2002, the Health and Disability Act 2001 and the Education Standards Act 2001. There are now general obligations and rights of consultation for Maori provided for in these statutes.

The State Owned Enterprises Act 1986 was the first major statute that referred to the principles of the Treaty of Waitangi. The legislation also led directly to the Lands case, decided by the Court of Appeal in 1987. It was that unanimous decision of the Court of Appeal - presided over by the now Lord Cooke - which established the idea of partnership as one of the fundamental concepts of the principles of the Treaty. The Court considered what the words "the principles of the Treaty" meant. The Court referred to a relationship akin to a partnership and a duty to act in good faith. Those ideas have never really been lost in subsequent decisions. They are now part of the legal framework created around the Treaty.

But this leads to the question; "what does it mean to be a partner"?

The Court of Appeal developed that concept as well. They say it includes the duty to consult. So there is now an obligation on the Crown as a partner to consult with Maori. This concept was not actually contained in the State Owned Enterprises Act, though it is now extensively imbedded in recent legislation including the Local Government Act 2002, and the Health and Disability Act 2001. In essence, the Court of Appeal made new constitutional law. This was not the development of the common law. The Court was effectively writing legislation. It was as if the State Owned Enterprises Act had a specific consultation provision for Maori. Richardson J stated: "In many cases where it seems there may be Treaty implications [the Crown's] responsibility to make informed decisions will require some consultation". [8]

This new requirement of consultation has been of constitutional significance for it provided broad consultation opportunities for one ethnic group, based on iwi representation, that no one else had. On reflection it now seems extraordinary that for 15 years Parliament demurred to the courts developing the constitution in this way. Arguably, this latent issue only became more notable when the current government started to directly legislate for these special consultation provisions.

The constitutional adventurism displayed by the courts over the last 15 years took a new turn last year. The Court of Appeal took a further constitutional step in deciding the Crown only had a radical title to the foreshore and seabed, not a full property title. It did so by overturning long held understandings that legislation since the Harbours Act 1878 provided a full title, both sovereign and property, and by overturning a Court of Appeal decision of 1963 which had conferred these understandings. This decision has led to the Foreshore and Seabed Bill which provides extensive consultation rights for Maori. The Government believes this will cover the entire coastline. [9] When courts embark upon such constitutional adventurism there is likely to be a backlash.

As citizens, we all have equal rights and so we all have the same rights to be consulted. The Treaty does not confer more rights to consultation on Maori than on anyone else. Indeed, we could argue that under Article III, which conferred the rights of British subjects on Maori, what they gained was the right to be consulted as a citizen. But that clearly was not the type of consultation intended, either by the Court in respect of the State Owned Enterprises Act or by the Government in recent legislation.

This new right of consultation is not a citizenship right conferred upon individuals. It seems to be either Maori as a people, or Maori as iwi or hapu, or Maori as a category of sub-sovereign entities, with extra rights of consultation beyond all other citizens. This is based on a belief that the residuary elements of sovereignty - captured by the concept of tino rangatiratanga - had to be retained in Article II and give Maori special rights of consultation.

However, it does not seem that the Treaty really confirmed the right of some residuary sovereignty as opposed to the protection of particular property rights. The sweeping forms of consultation superior to everyone else can only be justified by the mistaken belief that Maori have a residuary sovereignty.

That is why the Court of Appeal and the subsequent decisions, and the way that the Government has acted, have caused such angst in the community. At a fundamental level, it raises in people's minds the sense that we lose our identity and our commonality as a nation. If we follow this idea of partnership, consultation and subsidiary sovereignty, we then start to erode a fundamental value of being a unified nation. That would be contrary to the intent of Article I and of Article III. These actually talk about surrendering sovereignty and conferring citizenship - surely the essence of equality.

Lord Cooke, in the Lands case, said that the principles of the Treaty had been considered at length by our courts. On page 664 he states: "The Treaty signified a partnership between races", and then discusses the issues and the attitudes of the time before concluding with these words: "now the emphasis is much more on the need to preserve Maoritanga, Maori land and communal life, and a distinct Maori identity".

We do not actually need the Treaty of Waitangi in order to do that. The rights of people to their language, their land and their distinctive identity are universal human rights. We do not gain any additional protection for them under a treaty such as the Treaty of Waitangi. They exist already under the Universal Declaration of Human Rights.

For instance, every person self-evidently has the right to his or her language, and I think in New Zealand we can reasonably say that that includes an obligation on the government to protect the language. That means the principles of the Treaty must refer to the words of the Treaty itself. We cannot define them by ideas of consultation or partnership. Those words and those ideas, as such, are not found in the Treaty.

New Values?

The danger of the courts taking upon themselves an adventurous constitutional path is that it becomes respectable to undermine the idea of equality. Some Labour members of Parliament refer to a Pacific heritage as modifying the Westminster system of government. Nanaia Mahuta has referred to the fact that we are a Pacific nation and that our constitution needs to reflect that. But does that mean that our constitution will end up not reflecting fundamental values of equality? Does it mean that our constitution will not apply equally to everyone?

And what are Pacific values? The Pacific nations are in a state of flux, because they are struggling with the concepts of equality. They are uncomfortable with the idea that every person's vote must be measured in the same way. In a number of Pacific countries, that is not the case. Some groups are trying to give more power to certain people and excluding other competing groups.

The Green Party has actually argued that Maori should have 50 percent of the say. This would mean each Maori voter would have the equivalent of six current votes. This is not what the Treaty means or the country needs. I am quite troubled by calls to interpret "the principles of the Treaty" in a Pacific way. I do not think events in the Pacific, at least at the moment, indicate this is a wise path for New Zealand to follow.

There are some fundamental universal values which I would like to think every New Zealander would agree with. I believe that people are equal before the law, and that every person's vote has the same value.

A Return to First Principles

The words of the Treaty are the surest guide as to its meaning. The words of the Treaty mean it has three fundamental functions.

Firstly, Article I transfers sovereignty from Maori to the Crown. Article II protects property rights. Article III establishes citizenship - or "the rights and privileges of British subjects" to use the language of 1840. That is the essence of the compact. All other statements that have been made have, at best, a loose connection to these fundamental agreements contained within the Treaty.

One would think that the Treaty is, in fact, remarkably clear. There need be no real dispute as to what it actually says - at least, there is no dispute about the English version in relation to property rights. The Maori language version does raise the issue of autonomous control over Maori property. However, it certainly does not suggest a general and special right of consultation. It seems we need to come back to first principles to find the meaning of the Treaty. First principles of constitutions are found in the language of the constitutional documents themselves.

When we are dealing with constitutional documents it is important that the nation at large has at least a reasonably clear understanding of the most fundamental principles contained in them.

So I often hear people referring, for instance, to educational rights, social welfare rights, health rights or rights of that nature as being contained within a Treaty principle. I simply do not understand how that could be the case. I can certainly see that the Treaty protects property rights - both tangible and intangible - and it protects both culture and language. But how does it extend to the so called social and economic rights, which undermine the idea of equality contained within the actual Articles of the Treaty?

We have to remind ourselves of the compact that was made by the people of New Zealand in 1840. That is reflected in the preamble to the Treaty itself. It was intended to bring civil government to all the peoples of New Zealand to provide for a peaceable society. Contained within those ideas is the sense of equality before the law and that everyone is a "subject", to use the term of Article III. Article I, establishing the new government by the Crown, also includes the idea of equality before the law given that it had been a guiding principle of British law since at least as early as the Bill of Rights of 1688.

These are foundations our country has been built on. They were not created by the Treaty, rather the Treaty is an affirmation of those underlying principles. They are reflected in all contemporary human rights documents. Our country should never countenance encroachment on those principles.

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