KING’S COUNSEL CALL FOR TREATY PRINCIPLES BILL TO BE ABANDONED

So what?

Forty-two of New Zealand’s King’s Counsel (KCs) yesterday (13 November) called for the current Government to abandon the Treaty Principles Bill. That Bill is ACT Party leader David Seymour’s brainchild and its introduction into Parliament is promised in ACT’s coalition agreement with the National Party.

KCs are supposed to be New Zealand’s top “barristers” (lawyers who represent people in Court), plus a few other supposedly elite lawyers. According to Wikipedia, there have been 366 KCs in New Zealand’s history. It’s hard to tell how many KCs there currently are (they’re appointed for life) - something over a hundred is my best estimate. Most of the 366 are now of course dead. And many other KCs are now apparently nearly brain dead.

The 42 KCs’ call for abandonment of the Treaty Principles Bill is in a letter to Prime Minister Luxon and Attorney General Judith Collins (herself a KC). I haven’t seen the original Letter, but Chris Lynch’s Christchurch Newsroom has helpfully published the content.

The 42 Letter signatory KCs represent a minority of New Zealand’s current KCs. But equally, the signatories are firmly against rule by majority, and democracy in general.

The Letter…

Below is the content of the Letter (less the fancy footnotes). I’ve added my off-the-cuff observations, in bold italics.

Tēnā koutou

King’s Counsel express grave concerns about the Treaty Principles Bill.

As senior members of the independent bar and legal profession, we have significant
concerns about the coalition government’s proposed Treaty Principles Bill. We outline below our concerns regarding the substance of the Bill, its wider implications for New Zealand’s constitutional arrangements and the process adopted.

Substance

The Treaty of Waitangi/te Tiriti o Waitangi is a binding agreement between the Crown and Māori which is fundamental to New Zealand’s constitutional arrangements.

Incorrect. The Treaty was just that…a treaty. “ Māori” was not a unity capable of entering into any agreement with the Crown. Some tribes didn’t sign e.g. Tūhoe

Over the past five decades, all three branches of government have recognised this:

(a) Legislature – Parliament has incorporated the Treaty into statute law by including “Treaty Principles” clauses in a wide range of legislation.

(b) Judiciary – our courts have recognised that the Treaty is of “constitutional
significance” and “part of the fabric of New Zealand society”. They have
articulated the meaning of the statutory “Treaty Principles” in order to provide a
principled framework for assessing the Crown’s obligations to Māori.

(c) Executive – the Cabinet Manual, which provides a framework for policy formulation and decision-making by the executive branch of government, recognises the Treaty as a major source of the constitution, which accords “special recognition to Māori rights and interests”.

‘Te Tiriti o Waitangi’ is used to reflect that nearly all the chiefs that signed the Treaty signed the te reo Maori version of the text.

There is currently reference to “Treaty Principles” in at least 40 pieces of legislation.

These steps illustrate the recognition by successive governments over a long period of their obligation to uphold the rule of law and our constitutional arrangements, including the Crown’s guarantees under te Tiriti.

The existing “Treaty Principles”, which first appeared in the Treaty of Waitangi Act passed in 1975, have been developed and applied by the Courts over the past 50 years. They now shape the way in which the Crown, in specific circumstances, delivers on its obligations to Māori.

The main principles include partnership, active protection, equity and redress.

The current “Treaty Principles” are ill-defined. That’s Seymour’s prime reason for his Bill. The Woke orthodoxy is that the Treaty Principles will continue to evolve over time. This ill-definition and evolution is at the heart of the elite, undemocratic Treaty gravy train.

The Treaty principles are designed to reflect the spirit and intent of the Treaty as a whole and the mutual obligations and responsibilities of the parties. They now represent settled law.

Who’s doing the designing? Certainly not Parliament. The Treaty Principles are not settled law. They’re deliberately amorphous.

The coalition government’s Treaty Principles Bill seeks to redefine in law the meaning of te Tiriti, by replacing the existing “Treaty Principles” with new Treaty Principles which are said to reflect the three articles of te Tiriti. The problem is that they do not. By imposing a contested definition of the three articles, the Bill seeks to rewrite the Treaty itself.

I happen to think that the “Treaty Principles Bill” is misnamed. The Bill is essentially a restatement, in modern language, of the three Articles of the Treaty.

The Treaty Principles Bill would have the effect of unilaterally changing the meaning of te Tiriti and its effect in law, without the agreement of Māori as the Treaty partner.

Any changes resulting from enactment of the Bill (turning it into legislation with legal effect) wouldn’t be unilateral. Such changes would result from time honoured democratic processes.

In brief:

(a) The proposed “Principle 2” retrospectively limits Māori rights to those that existed at 1840. The Bill states that if those rights “differ from the rights of everyone”, then they are only recognised to the extent agreed in historical Treaty settlements with the Crown. This principle erases the Crown’s Article 2 guarantee to Māori of tino rangatiratanga (chieftainship/self-determination/political authority in relation to their communities, lands, and other taonga) provided in exchange for agreement by Māori to the establishment of Crown kāwanatanga/governance. By recognising Māori rights only when incorporated into Treaty settlements with the Crown, this proposed principle also attempts to exclude the courts, which play a crucial role in developing the common law and protecting indigenous and minority rights.

The objection to differential rights only being recognised to the extent they are recognised in Treaty settlements in possibly valid. I’m inclined to think that differential rights can be recognised to the extent they arise under Article 2 of the Treaty. Our courts’ “crucial role in developing the common law” is an oblique reference to the extreme, anti-democratic judicial activism that characterizes New Zealand’s Court system.

(b) The proposed “Principle 3”, the right to equality, does not recognise the
fundamental Article 2 guarantee to Māori of the right to be Māori and to have their
tikanga Māori (customs, values and customary law) recognised and protected in our
law.

Māori did not have their own, universal “customary law”. Tribes had their own customs and practices, but there was no Māori legal system. New Zealand’s Supreme Court has tried to invent pre-colonisation Māori customary law, but it’s just that…an invention.

As the Waitangi Tribunal has pointed out, “[p]eople in a liberal democracy can and do have different rights”.

Correct, but only to the extent such different rights arise from democratically enacted legislation.

Nor does it recognise the impact of colonisation and past Treaty breaches on Māori, which have created profound inequalities.

The effect of colonisation on Māori is complex. Colonisation has had many benefits for people with Māori ancestry e.g. higher life expectancies, access to technologies and knowledge, guitars…

Even if Parliament can legislate in this way (which is uncertain), it should not do so
because it is not for the government of the day to retrospectively and unilaterally
reinterpret constitutional treaties. This would offend the basic principles which underpin New Zealand’s representative democracy.

The KCs show their true colours here, by suggested that Parliament can’t pass laws that the signatory KCs (plus Waitangi Tribunal members) just don’t like. The “basic principles which underpin New Zealand’s representative democracy” are that a democratically elected Parliament can pass whatever laws it damn well likes.

Further, the Treaty Principles Bill would cause significant legal confusion and uncertainty, inevitably resulting in protracted litigation and cost. We consider it would have the opposite effect of its stated purpose of providing certainty and clarity.

Any uncertainty that may result from the Bill in any enacted (legislated) form would pale by comparison with the current “legal confusion and uncertainty” around “Treaty Principles”.

Process and wider impact

Constraints have been imposed on timeframes and scope which have limited the ability for in-depth policy analysis.

If the Bill is allowed to run its course through Parliament, there’d be ample opportunity for analysis, debate and submissions…in Select Committee and in Parliament. The KCs simply hate the prospect of debate around the current “official” orthodoxy over the Treaty of Waitangi.

This has meant no opportunity for meaningful targeted engagement (including with constitutional and Treaty experts and iwi/hapū) during the development of the Bill, as urged by officials.

Anyone, including “constitutional and Treaty experts and iwi/hapū”, will be able to engage on the Bill, at the Select Committee.

The Waitangi Tribunal, established in 1975 as the expert body in relation to Treaty matters, has expressed grave concerns about the impact and effect of the Bill. Its view is that the Bill is a breach of the Treaty, discriminates against Māori and abrogates their rights, will damage the Māori-Crown relationship and “risk undermining social cohesion”.

The Waitangi Tribunal, with its extreme separatist agenda, is looking to tear New Zealand apart along racial lines. If that doesn’t “risk undermining social cohesion”, what does?

The Ministry of Justice has made similar comments, noting that in the absence of a broader discussion, the effect of the Bill could undermine confidence in New Zealand’s constitutional arrangements. We share these concerns, all of which have been ignored.

The Bill is promoting a “broader discussion”. The KCs simply don’t want the discussion. Whose “confidence in New Zealand’s constitutional arrangements” could be undermined? The KCs?

While the Select Committee process will allow for public engagement, the failure to
engage meaningfully and in good faith at policy development stage with Māori as Treaty partner, and also with other experts, is concerning. In addition to the obvious risk of a poor legislative outcome, this has created mistrust and calls into question whether the stated objective of an open, informed public debate is genuine.

The Treaty did not create a “partnership”. The notion of a Treaty Partnership is really just code for dismantling New Zealand and creating two separate race-based nations. What’s abundantly clear is that the KCs don’t want “an open, informed public debate”.

Whether constitutional reform is required, and how that should incorporate te Tiriti, is a long-standing, complex and contentious issue in this country. A constructive and good faith national conversation is appropriate. In light of the history, this should be approached with the utmost care and respect. These issues warrant a thorough and considered process involving public education, engagement and consultation. Process is everything.

The KCs don’t want a “national conversion”. They love the fluid, legally lucrative status quo.

In our view, the introduction of the Treaty Principles Bill and the intended referendum on implementation of the Bill is wholly inappropriate as a way of addressing such an important and complex constitutional issue, particularly one which so profoundly impacts on indigenous rights.

The KCs are curiously silent on how they think “such an important and complex constitutional issue” should be addressed. Ummm.

In governing for all New Zealanders, the coalition government, like those before it, is obliged to respect the rule of law and the constitution of our representative democracy, including te Tiriti. We call upon the Prime Minister and the coalition government to act responsibly now and abandon the Bill.

Passing enforceable legislation IS the “rule of law”. This letter is the latest chapter in a battle for constitutional supremacy between Parliament and New Zealand’s Judiciary/Legal Elites

Yours faithfully

NIGEL HAMPTON CNZM, OBE, KC
SIR HUGH RENNIE KNZM, CBE, KC
SARAH ARMSTRONG KC
KERRYN BEATON KC
JOHN BILLINGTON KC
BRONWYN CARRUTHERS KC
MARGARET CASEY KC
ANITA CHAN KC
NICK CHISNALL KC
JENNY COOPER KC
TIFFANY COOPER KC
VIVIENNE CRAWSHAW KC
CATHERINE CULL KC
DR JAMES EVERY-PALMER KC
KAREN FEINT KC
ANTONIA FISHER KC
DR SIMON FOOTE KC
RICHARD FOWLER KC
SALLY GEPP KC
STUART GRIEVE KC
STEPHANE GRIEVE KC

DR RODNEY HARRISON KC
TONY HUGHES-JOHNSON KC
SIMON JEFFERSON KC
FRANCES JOYCHILD KC
LYNDA KEARNS KC
JULIE-ANN KINCADE KC
ALANYA LIMMER KC
RON MANSFIELD KC
STEPHEN McCARTHY KC
CHRISTINE MEECHAN KC
JULIAN MILES KC
SIMON MITCHELL KC
JAMES RAPLEY KC
SUZANNE ROBERTSON KC
PHILIP SHAMY KC
DR ROYDEN SOMERVILLE KC
ANNE STEVENS KC
CHRIS STEVENSON KC
NURA TAEFI KC
NICHOLAS TILL KC
PETER WHITESIDE KC

Feint feints

Yesterday (13 November) one the KC signatories to the Letter, Karen Feint, told Heather Du Plessis-Allan (Newstalk ZB) "You can't just rewrite the constitution of New Zealand without having a proper dialogue about it." Despite her august status, KC Karen seems ignorant of the fact that New Zealand doesn’t have a written constitution that can be re-written. And Karen’s of course feinting when she purports to advocate for a “proper dialogue”. Open, honest, public discussion of the Treaty of Waitangi is the last thing Karen and her ilk want.