Gehan Gunasekara: Treaty principles here to stay

Our current flawed arrangements serve us well enough without the need to lock in a constitution

The Treaty of Waitangi is an integral part of the development of New Zealand as a nation.
The Treaty of Waitangi is an integral part of the development of New Zealand as a nation.

David Round argues in his article in the Herald that giving legal standing to principles that Maori now claim would be a disaster for New Zealand.

This is a familiar refrain but it tells only half the story and is alarmist, to say the least. The reality is the Treaty of Waitangi and its associated "principles" are as much part and parcel of our existing partly written constitution as the Magna Carta, the 1688 Bill of Rights (which limited the powers of the King) and conventions such as that which require a government to resign if it loses a vote of confidence in Parliament.

We do not now say some of these - such as the 1688 Bill of Rights - are old hat and should be done away with. They are crucial steps along our evolution as a nation. The Treaty is no different (without it Aotearoa would probably be a French-speaking nation today).

Round adopts the Pakeha-centric view of property rights conferred by the Treaty, whereas the Maori version which was signed by the assembled chiefs guaranteed te tino rangatiratanga or continued rights of chieftainship, a concept then well understood by Maori.

He also suggests that the principles mean anything Maori want them to mean: the converse is the case as the principles have been devised to bridge the obvious divide between the two meanings of the Treaty (English and Maori). In essence they require compromise between Maori claimants and the Crown. Round fails to mention principles such as those requiring parties to act reasonably and to co-operate with one another as well as recognising the Crown's right to govern in the interests of all New Zealanders. These surely serve as a brake on any future extravagant claims by Maori.

Lawyers understand "principles" as distinct from "rules". The former, unlike the latter, may be given relative "weight" and may be balanced against each other as opposed to rules which either apply or not (or are subject to exceptions). This bodes well for the principles of the Treaty, should it become part of any new written constitution. In times of scarcity a court may well find that the principle requiring the Maori Treaty partner to respect the Crown's right to govern in the interests of all takes precedence to an excessive claim over resources.

This, on the other hand, leads one to consider Round's further argument that a written constitution would confer unfettered and excessive power on an unelected judiciary who would, he maintains, automatically exercise such power solely in Maori interests. He supports his view by reference to one or two utterances of the current Chief Justice but realistically, the claim cannot withstand scrutiny. A single extra-judicial comment does not a legal precedent make: these take decades to emerge and are usually the work of many judges and courts. Appellate courts such as our Supreme Court are made up of many judges (the Supreme Court has five). Differences of legal opinion can and do lead to split decisions.

To say that majorities would consistently decide any disputes over Treaty principle in Maori interests is to draw a very long bow verging on a conspiracy theory.

Incorporating the Treaty principles in a future written constitution would have one immediately beneficial effect. It would make Treaty compliance prospective and not reactive. Currently, as the Waitangi Tribunal can mostly only make non-binding recommendations, a grievance industry is practically ensured as parties have no means of preventing future breaches of Treaty principles (witness the Foreshore and Seabed debacle). Giving the principles legal status would mean parties could act to protect their interests before a breach occurred - or secure a judicially sanctioned compromise in accordance with the law.

Maori could not then challenge the result as breaching the Treaty as the ruling would itself be made pursuant to the Treaty or its principles.

However, Round makes a more persuasive case against a written constitution in his contention it would "corrupt" the judiciary in the sense of politicising it, as has occurred in the United States. As judges would have to adjudicate conflicts between the principles and Parliament's powers he is right in this view. Written constitutions also tend to set things in stone - witness the difficulties faced in the United States in enacting effective gun laws because of an archaic constitutional right. My own view is "if it ain't broke don't fix it" as our current flawed arrangements are flexible and have served us well. But should a written constitution be adopted it would have to incorporate the Treaty principles or risk taking away Maori's existing rights.


Gehan Gunasekara is an associate professor in commercial law at the University of Auckland.

- NZ Herald

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