Mai Chen: Maori push over Treaty may end up in court

The constitutional status of the Treaty of Waitangi is unlikely to change in the short to medium term through the actions of either the Executive or parliamentary branches of Government. But the Supreme Court might be prepared to give direct effect to the Treaty if a suitable case was brought and leave was granted.

There appears to be a growing consensus among Maori of the need to improve the constitutional status of the Treaty, as evidenced in submissions to the Constitutional Arrangements Committee by Maori groups, in a recent major hui designed to discuss the place of the Treaty held at Te Tii Marae in Waitangi in 2005, and in the Maori Party's policies.

Maori are also in a better position to push for that outcome. They are more numerous. Latest projections from Statistics NZ (April 2005) indicate that the proportion of the population that identifies with European ethnicity will drop from 79 per cent in 2001 to 70 per cent in 2021.

The proportion identifying with Maori ethnicity will increase from 15 per cent to 17 per cent, with a Pacific ethnicity from 7 to 9 per cent and with an Asian ethnicity from 7 to 15 per cent. If 14,000 Maori shift to the Maori roll in the Maori option starting on April 3, that will create an eighth Maori seat. If all Maori voters sign up, there will be 13.

The Maori Party is now established and has four MPs. Its influence may grow. The number of Maori MPs has increased in every MMP Parliament. An increasing number of Treaty settlements, including the fisheries settlement, have resulted in a significant transfer of wealth in monetary and asset terms back to Maori, putting them in a better position to focus on realising their constitutional aspirations, and resourcing them to do so.

However, a series of recent events - starting with the Court of Appeal decision in Ngati Apa on the Foreshore and Seabed, and followed by the "one law for all" platform, which has gained political traction - has turned public sentiment against the Treaty and Maori issues more generally, and the Government's sensitivity to the wider electorate means that it is unlikely to pursue the enhancement of the Treaty's constitutional status.

The problem for Maori as a minority is that unless they can reach an accommodation with the majority, non-Maori population, they will not achieve their constitutional aspirations for the Treaty.

It is unlikely that significant constitutional change (in a non-revolutionary sense) could take place without a majority at a referendum or an extraordinary majority in Parliament supporting such a proposal. Neither of these avenues is likely to be successful if the proposal for constitutional change is to include the Treaty in a supreme constitution or an entrenched Bill of Rights.

The key question remains whether the majority will accept that Maori should receive preferential treatment from the rest of the population based on race, as that is fundamental to Maori constitutional aspirations to the Treaty.

The enhancement of the Treaty's constitutional status would allow Maori to assert rights to preferential treatment based on race, and depending on the degree of enhancement, the judiciary may be able to strike down legislation and Government actions for inconsistency with the Treaty. Even steps short of this position may be suspiciously viewed as a Trojan horse to reach this ultimate objective and are thus likely to be strongly resisted by the majority.

Thus, although the Government cannot stop the pressure for reform of the constitutional status of the Treaty from building amongst Maoridom, which will increase as their population and political influence grows, Maori are unlikely to be able to gain majority support for their constitutional aspirations any time soon.

The way forward may lie in NZ's developing sense of nationhood and unique identity, which were strong themes in the Prime Minister's statement recently delivered at the start of the new term of Government. Maori and the Treaty are generally accepted as an integral part of NZ's unique identity.

Identity raises questions not just about flag design and the words of our national anthem, but about who we are as a nation.

Questions about whether we should retain our British colonial roots as a constitutional monarchy or become a republic will have an impact on how power is distributed in our constitutional system, which may also require a reconsideration of the status of the Treaty.

The judicial branch of Government has sometimes been a counter-majoritarian force and the purposes of the legislation establishing the Supreme Court include establishing a new court of final appeal comprising NZ judges to, inter alia, resolve Treaty matters "with an understanding of New Zealand conditions, history, and traditions", and for the purposes of determining leave to appeal "a significant issue relating to the Treaty of Waitangi is a matter of general or public importance".

Although the Supreme Court Act also provides that "nothing in this act affects New Zealand's continuing commitment to the rule of law and the sovereignty of Parliament", extra-judicial comments by the Chief Justice made after the Ngati Apa (foreshore and seabed) case question whether the rule of law requires recognition that the Treaty of Waitangi imposes limits on the sovereignty of Parliament.

In her 2003 article, "Sovereignty in the 21st Century: Another spin on the merry-go-round" the Chief Justice said:

"The sovereignty obtained by the British Crown was a sovereignty qualified by the Treaty [of Waitangi]. It has not been treated as so qualified as a matter of domestic law. But the elements of our unwritten constitution have never been fully explored to date. We have assumed the application of the doctrine of parliamentary sovereignty in New Zealand. Why, is not clear.

"Whether there are limits to the law-making power of the New Zealand Parliament has not been authoritatively determined. Parliament is bound by the constitution which may partly be expressed in earlier legislation. The constitution evolves. Saying what it is in a case where the content of the constitution directly arises is ultimately for the courts. This is because the conditions of valid law-making are law. Parliament is supreme as legislator but it legislates under the law of the constitution."

After setting out the arguments to support these comments, the Chief Justice concluded that the limits of the law-making power of the New Zealand Parliament have not been authoritatively determined.

Hoani Te Heu Heu Tukino v Aotearoa District Maori Land Board, which established the principle that the Treaty of Waitangi only has effect to the extent that it is incorporated into statute, was decided in 1941 by the Privy Council.

If an appropriate case arose to challenge that precedent and the sovereignty of Parliament in New Zealand was found to be constrained by the Treaty of Waitangi, even where the Treaty is not specifically incorporated into statute, there would be a profound impact on the status of the Treaty, and a fundamental shift in the distribution of power in New Zealand's constitutional system.

No doubt the Supreme Court that overturns the Privy Council decision may find itself unpopular with the Government, with Parliament, and with the majority of New Zealanders.

But the court's role is to interpret and apply the law; and if the limits to the law-making powers of the New Zealand Parliament have not been authoritatively determined, as the Chief Justice opines, and Maori find their constitutional aspirations for elevating the Treaty status blocked in the Executive and parliamentary branches of Government, then we might well see Maori claimants seeking to explore these limits in the courts.

* Mai Chen is a partner in Chen Palmer, Barristers and Solicitors. This is a summary of her paper on "A Public Law Assessment of the Treaty of Waitangi's Constitutional Future", delivered at the 8th annual Public Law Forum on Wednesday.


Readers' Views

I am suprised that someone with a legal mind like Mai Chen would not have thought through the obvious extra step in her absurd column. If the courts find that parliament has no legal existence and therefore law does not take precedence over the treaty, their own existence disappears in a puff of Red Dwarfian absurdity. Courts and judges are established by statute, thus if parliament has the power to establish courts it has the power to make law. If it does not have that power, a judge is not a judge, merely a pompous fool in a wig.
- Phil Sage, UK