This article comes with a health warning for anti-democracy activists. For mindless academics parental guidance is recommended.
On the Wednesday the 13 April 2022 the political commentator Audrey Young wrote an article for the New Zealand Herald about co- governance and a “partnership” between those with some Maori genes and the remainder of New Zealanders. The writer concludes that such a unique constitutional arrangement results from the decision of the New Zealand Court of Appeal in New Zealand Maori Council  1 NZLR 641. Similarly in a series of three articles Dame Anne Salmond concludes that the case does amount to those who signed the Treaty becoming “partners” while perceptively concluding:
The Lands judgment is unhelpful. By defining the Treaty as a partnership between the Crown and the Maori race ; it assumes that the rest of the population can be fairly excluded from discussions of Treaty matters. This is highly undemocratic and more likely to inflame than to heal racist sentiment.
Notwithstanding such a sensible caution most maori radicals and less perceptive academics (shamefully including lawyers who should know better) espouse the “partnership” notion.
It is clear from the growing body of writing and commentary that very few of the authors have read the judgment or understand the jurisprudence at the heart of judgment writing, what it is that comprises a judgment of a court. Given the widespread ignorance which surrounds what has become holy writ to the maori radicals it is timely to examine what the case does and does not decide. In doing so it is necessary to say something about the judges who made up the Court, the counsel who argued the case, the issues which the plaintiff put before the Court and what it is the case actually decides.
What is the purpose of a judgement of the Court?
Judgements are not opinion pieces in which a judge has licences to express his or her personally held views about the subject matter of a dispute. They are instead uniquely restricted documents which approached properly require a great deal of restraint on the part of the judge in the task of ascertaining what are the facts of the case and what is applicable. Applying the law to the facts a Court then comes to a decision on the outcome of the case and that decision is binding on the parties to the dispute. It also becomes the law of the land unless overturned by a higher Court or statute and becomes applicable to all subsequent disputes on the same facts.
What can be confusing to the lay reader (and apparently some semi educated lawyers) is that all words used by Judges in a judgment are not of equal value in the eyes of the law. The Lands case is a classic example because it required the court to answer a question which had never previously been before an appellate court. As a judge develops the reasoning which leads to the final outcome particularly in such novel cases things will be said and ideas expressed which are helpful to the judge’s reasoning process but do not contribute to the final outcome. This is known as “obiter dicta” and form no part of the law. The confusion surrounding obiter dicta is magnified where the court, as here is comprised of more than one judge. What is crucial to a judgment is the “ratio decidendi” or reasons for the decision. That outcome becomes part of the common law unless overturned by a later Court. It is unthinkable that the highly experienced and learned Judges who sat on the lands case failed to observe this fundamental component of their trade. Thus, when Cooke P. said:
“The Treaty signifies a partnership between races and it is in this concept that the answer to the present case has to be found.”
The Judge was not referring to some Constitutional revolution arising from the signing of the Treaty resulting in the (undefined) sharing of government by Maori and the rest of New Zealanders but solely concerned to enquire what are principles underlying the signing of the Treaty. The Judge made this clear by accepting the submissions of the Maori applicants that:
The relationship between the Treaty Partners creates responsibilities analogous to fiduciary duties.
As the Judge well understood such duties arise where one person is in a position of trust and confidence in relation to another over whom they have control. For example, a trustee of a trust owes the beneficiaries a duty to act fairly, honestly and in the best interests of the beneficiary. Similar duties of the upmost good faith and fair dealing exist between members of a partnership in furthering the partnership venture. Those are the rights referred to above by Cooke P. and they echo the words of Captain Hobson on the signing of the Treaty; “we are now one people.” We all owe duties to the Sovereign and to each other. Such it was until the greedy rent seekers, semi educated academics and sundry activists got to work.
The Dramatis Personae
The Court consisted of five Judges, Justices: Cooke, Richardson, Somers, Casey, and Bisson. The President of the Court Justice Cooke was probably as learned in the law as any Judge ever to have sat on the Bench. He was also an activist Judge who did not hesitate to shape the Common Law to accord with what he believed to be the justice of the case. He is I think the only New Zealand Judge to be permanently elevated to the House of Lords and the Judicial Committee of the Privy Council. Sir Ivor Richardson who hailed from Ashburton kept a lower profile which was thoroughly undeserved. He was the leading expert on all matters relating to Revenue law and the subjects relevant to it. An unassuming man with a razor-sharp mind and a pleasure to appear before. His sole concern was to apply the Common law and to preserve it from fashionable ideas leaving that to politicians. Sir Edward Somers who practiced in Christchurch was the leading equity lawyer of his day (I sat at his feet in 1962) and co-author of the standard New Zealand text of the law of equity. Sir Maurice Casey was an Auckland practitioner and a devout Roman Catholic. He had a strong sense of justice for the less fortunate and an excellent knowledge of the principles of the common law. Justice Bisson had been the Napier City Crown Prosecutor specialising of necessity in the Criminal law but a sound judge. The Bench was thus representative of the important strands which go to make up the Common Law, its interpretation and application.
The case for the plaintiffs was carried by David Baragwanath QC a recognised expert in the law as it related to Maori interests. The Solicitor General Paul Neazor QC, senior law officer of the Crown led for the Attorney General with other less well-known counsel for the Coal Corporation of New Zealand. The case was therefore thoroughly argued, and all relevant matters put before The Court.
The point at issue
Quite simply it was; what if any are the principles underlying the Treaty document? If there are any in what way did the State-Owned Enterprises Act and disposition of the Crown lands to be vested in various of the newly created State-Owned Enterprises impact on future claims by Maoris relating to such land. What the case was not concerned with as summarised by Cooke P. was:
Counsel for the applicants did not go so far as to contend …. That the Treaty of Waitangi is a Bill of Rights or fundamental New Zealand constitutional document in the sense that it could override acts of our legislature. Counsel could hardly have done so in face of the decision of the privy Council in Hoani Te Heuheu Tukino v Aotea District Maori Land Board  Appeal Cases 308 that rights conferred by the Treaty cannot be enforced in the Courts. They were rather that the Treaty is a document relating to fundamental rights. That it should be interpret widely and effectively as a living instrument.
His Honour might have added that until the Treaty of Waitangi Act and the Maori Affairs Bill the binding legal authority relating to the Treaty as expressed by Chief Justice Prendergast in the 1877 case of Wi Parata v Bishop of Wellington was that the Treaty was a constitutional nullity.
The historical fact accepted by the Judge as given in evidence by Professor Sir Hugh Kawharu is that the Treaty established that the Chiefs who signed the document agreed to the establishment of “The Queens governance being established over all parts of this land and adjoining islands.” And sign they did. Cooke P. summarises the effect of the evidence as follows:
In brief the basic terms of the bargain were that the Queen was to govern and the Maoris were to be her subjects. In return their chieftainship and possessions were to be protected.
As mentioned, the case before the Court therefore was to examine not what the Treaty means, that is beyond argument on the plain wording and the evidence, but to consider if the there are any enduring underlying principles which inform the application of the document to the myriad circumstances arising beyond the dreams of those who signed in 1840.
This task was imposed on the Court by virtue of s. 9 of the State-Owned Enterprises Act which provides:
Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.
Thus, the sole question before the Court was found to be: What are the principles of the Treaty? The Case does not touch on questions of sovereignty or what is the proper interpretation of the words used in the Treaty. It is solely concerned to give meaning to the words “the principles of the Treaty.” The “principles” had been set out at length in the Maori Affairs Bill which was then before Parliament. In summary it stated that:
The Treaty symbolises the special relationship between the Maori people and the Crown and it is desirable that the spirit of the exchange of sovereignty for the protection of rangatiratanga embodied in the Treaty be affirmed.
Rangatiratanga is defined as: “the custody and care of matters significant to the Maori people of New Zealand.” It is against this crucial background that the wording used by the various Judges in their judgments must be read.
The Judge began by observing:
While it is not necessary for the purposes of this case to enter into all the complexities surrounding the Treaty of Waitangi and its significance in the life of New Zealand today the principles of the Treaty do call for some consideration.
In this the Judge referrers to the statutory reasons for the establishment of the Waitangi Tribunal in 1975 which was to provide for the observance and confirmation of the principles of the Treaty of Waitangi.
The Judge sets out the ten contentions of the applicants none of which include any claim that the status of the Treaty touches on New Zealand’s constitutional democracy. Instead, the Judge in his view put the matter beyond doubt:
The Treaty must be viewed as a solemn compact between two identified parties the Crown and the maori through which the colonisation of New Zealand was to become possible. For its part the Crown sought legitimacy from the indigenous people for its acquisition of sovereignty and in return it gave certain guarantees. That basis of the contract requires each party to act reasonably and in good faith towards the other …… if we are prepared to regard it as an obligation of honour we will find the Treaty is well capable of implementation.
The Judge summarised his views:
The answer lies in the application in the circumstances of this case of the principle of the Treaty that the Crown will act in good faith and fairly and reasonably towards Maori people.
His Honour was emphatic in his view as to the place of the Treaty in New Zealand law. Citing a 1962 Judgment of Turner J. (probably one of the most learned and thoughtful judges ever to sit on a New Zealand Court) his Honour said:
Neither the provisions of the Treaty of Waitangi nor its principles are as a matter of law a restraint on the legislative supremacy of Parliament.
Upon the signing of the Treaty of Waitangi the title to all land in New Zealand passed by agreement of the Maoris to the Crown but there remained an obligation on the Crown to recognise and guarantee the full exclusive and undisturbed possession to all customary lands to those entitled by Maori custom.
The Judge then went on to decide what are the principles of the Treaty. He cited the instructions given by Lord Normanby to Captain Hobson that he must deal with the “natives” not as a coloniser but with:
With sincerity, justice and good faith.
Justice Somers summarised his own view as:
Each party owed the other a duty of good faith. It is the kind of duty which in civil law partners owe to each other.
I knew Justice Somers well both as a law lecturer, at the Christchurch bar together and later a High Court Judge. I can think of no lawyer who was more careful in his choice of words than Somers J., or who knew as much about the principles of equity and the notions of fair dealing which are at its heart. If the Judge had considered that the Treaty created a partnership between the races he would have said so. He did not.
Surprisingly in a case concerned with the interpretation of “Treaty principles”, of the five Judges Casey J. was the only one to focus on the dictionary definition of the word “principle.” He adopted the shorter Oxford definition:
A fundamental motive or reason for action.
The Judge drew the crucial distinction between the “principles” underlying the Treaty and the “terms or provisions of the Treaty.” His Honour said:
It calls for an assessment of the relationship the parties hoped to create by and reflected in that document and an enquiry into the benefits and obligations involved in applying its language in todays changed conditions and expectations in the light of that relationship.
Applying this approach His Honour said:
It is not difficult to infer the start in 1840 of something in the nature of a partnership between the Crown and Maori people.
Later in the judgment His Honour said:
I have spoken of what I perceive to be a relationship akin to a partnership between the Crown and Maori people…. leading me to believe that all concerned recognise the need to act with reasonable regard for each other’s expectations and obligations.
Akin means “of similar or kindred character” (Concise Oxford dictionary). It does not mean “the same as.
This is crucial to understanding just what the case did and did not decide. The Judge could have said that on the signing of the document the parties became partners. He did not, instead adopted a similar approach to the other Judges of casting about for some concept known to the common law and settled on partnership with the expectations of good faith by each side in their dealings with the other.
This Judge echoed the view of the other Judges that the legislation requires the Court to consider solely the principles underlying the Treaty document and not with questions of an interpretation of the words used in the document. He refers to the Maori Affairs Act of 1987 which defines the Treaty as symbolising the special relationship between the Maori people and The Crown. He rightly focused entirely on Maori land claims. He said that:
The principles of the Treaty of Waitangi were the foundation for the future relationship between the Crown and the Maori race.
And it really is as simple as that.
The result of the case
After so much learned discussion and evidence the proceedings were adjourned to allow the parties time to consider their position in the light of the Courts definition of what are the principles underlying the Treaty. Some months after the judgments were given Cooke P. sitting alone recorded that the parties had settled their differences and he dismissed the case.
A great deal of social angst and raised expectations would have been avoided if those relying on the State-Owned Enterprises case had taken the trouble to read the document and made an effort to understand what was said. It is beyond question that nothing in the case suggests that the Treaty in any way creates a partnership between Maoris and The Crown or brings into question the legitimacy of our democracy. To argue the contrary on the basis of this court case is either ignorant or wilfully dishonest.
PS. At a time when the political sands on which this government is built shift on an almost daily basis would it be naïve to think that the partnership fiction is becoming increasingly irrelevant and is being replaced with a shift to reliance on the rights of indigenous peoples, and notions of “co management”? But that is for another day.