June 2013 Māori Law Review

The Treaty in the constitution conversation – Craig Linkhorn

Craig Linkhorn's paper to the Māori Law Review symposium on the Treaty of Waitangi and the constitution.

12 June 2013

The independent Constitutional Advisory Panel

The independent Constitutional Advisory Panel has been asked by the Government to find out what New Zealanders think about particular aspects of the Treaty of Waitangi as part of the Panel’s review of our constitutional arrangements. 1

The Panel has asked for feedback on two questions concerning the Treaty:

  • Thinking of the future, what role do you think the Treaty of Waitangi could have in our constitution?
  • Do you think that the Treaty should be made a formal part of the constitution?  Why?

Compared to some other areas of the Panel’s work on the more mechanical aspects of our constitution, these are very big questions.  For instance, the question before the Panel on how the election date should be decided is not going to engage communities in the same way as these questions about the place of the Treaty of Waitangi will.

People need time to consider big questions in order to:

  • Gather their thoughts and their existing ideas;
  • Do some “blue-sky” thinking;
  • Consider what a vision for the future might be – where do we want to be – alongside understanding what our present state is; and
  • Engage with others in ways that respect different perspectives.

This constitution conversation does not stop now

Although submissions to the Review Panel were due by the end of July 2013 that does not mean that the conversation about the constitution will stop.

The Review Panel’s report at the end of the year might reignite debate. Especially around any issues where there is a low level of consensus in the community. Yet discussion about what would make the best possible constitution will continue regardless of the next steps taken. And so it should.  A constitution needs the on-going support of the people who have adopted it as the rules for how public power is exercised in society.

How might the conversation unfold on the questions about the place of the Treaty of Waitangi?

My presentation is intended to give an overview of how the conversation might unfold on the questions about the place of the Treaty of Waitangi in our constitution. My role is not to urge any particular outcome.  As a public servant it is not my place to offer any personal views on a matter like this that is going to come before Executive Government before long.

In this paper I:

  • Describe briefly how at present the Treaty’s exact place in our constitution is uncertain;
  • Outline three views on whether that uncertainty is something that we need to resolve as a society at this point in time;
  • Go over six options that are being debated by people who think that our society should do something to settle the role of the Treaty of Waitangi in our constitution.

A couple of things I am taking for granted

I am taking for granted that people have at least some familiarity with the Treaty of Waitangi 1840 or Te Tiriti o Waitangi. 2

That when I refer to our constitution I am meaning the rules by which public power is exercised.

Here is what the Constitutional Advisory Panel has said a constitution is:

A constitution is the set of rules that determines how a country is governed and how its people live together. It reflects a country’s unique history, values and aspirations. Our constitution determines who exercises power in Aotearoa New Zealand and the checks and balances on those powers. It also protects the rights of everyone in New Zealand. 3

Our constitution

We already have a constitution.

But our constitution is not one that is written down in a single place.  Again, here is how the Constitutional Advisory Panel has described our constitution:

Our constitutional rules include legislation such as the Bill of Rights Act 1990 and the Constitution Act 1986, foundational documents such as the Treaty of Waitangi signed in 1840 and constitutional principles. 4

The place of the Treaty of Waitangi in our constitution at the moment

You will have noticed that the Advisory Panel’s definition says the Treaty of Waitangi already has a role in our constitution – and that the role is described as “foundational.”

And that seems to be generally accepted by expert commentators.  In the introductory essay on the constitution that Sir Kenneth Keith wrote for the Cabinet Manual 5 he noted that our constitution “increasingly reflects the fact that the Treaty of Waitangi is regarded as a founding document of government in New Zealand.”

But the exact place of the Treaty in the constitution today is a legal question that we lawyers do not know the answer to.  And as a society, it is a policy question that we New Zealanders have not made up our minds about yet.

Lawyers do not know for sure whether our courts might decide at some point that the Treaty of Waitangi contains a set of legal obligations that can be enforced directly in the courts. Or is the Treaty’s subject matter reflected in a mixture of other rights or via the ways in which courts supervise the exercise of public power through judicial review?  The relevance of the Treaty to a number of legal issues can be hard to predict.

Back in 2005, former Prime Minister Sir Geoffrey Palmer said:

The position of the Treaty of Waitangi in New Zealand’s constitutional framework is perhaps the most fraught issue of all.  Any revision of New Zealand’s constitutional arrangements will require the place of the Treaty to be settled and the prospect of securing anything approaching consensus on it appears to be remote. 6

Fast forward to June 2013 where Sir Geoffrey offered his current assessment to attendees at the symposium published in this issue of the Māori Law Review:

We have travelled a long distance with the Treaty, and much of what was proposed by making the Treaty part of an entrenched Bill of Rights has been achieved. Yet the current position with the Treaty does not seem to me to be sustainable long term. It is half in and half out of the legal system. 7

Do we need to resolve this question?  Do we need to resolve this now?

That brings me to the second area of this short paper.  What is the range of views on whether the uncertainty about the Treaty’s place in our constitution is something that we need to resolve as a society?  Either resolve at all.  Or resolve at this point in time?

There seems to be three broad views on whether we need to resolve uncertainty about the place of the Treaty in our constitution and whether we need to resolve that now:

  • Don’t talk about the issue.  Do nothing.
  • Talk about the issue.  Decide to do nothing.
  • Talk about the issue.  Decide to do something.

Don’t talk about the issue.  Do nothing

This is the first view and it is held by a range of people:

  • People who are busy getting on with their busy lives.  Many of these people won’t be engaged in the conversation that the Constitutional Advisory Panel has been urging New Zealanders to have.
  • People who are satisfied nothing needs fixing and this is not a priority topic for conversation.  This is consistent with the constitutional “pragmatic evolution” referred to by the Select Committee that examined constitutional arrangements and reported in 2005. That Committee defined “pragmatic evolution” as follows:

By this we mean New Zealanders’ instinct to fix things when they need fixing, when they can fix them, without necessarily relating them to any grand philosophical scheme. 8

  • People who think it is dangerous to give oxygen to any debate about the Treaty.

Talk about the issue.  Decide to do nothing

This second viewpoint might be held by a people along the following lines:

  • People who decide the issues are ones that are worth talking about but who conclude that nothing needs to change.
  • People who conclude that even if some change is desirable, broad changes are too ambitious to attempt at the present time.  This includes people who decide there is insufficient consensus for change. The importance of consensus cannot be underestimated.  Former Governor-General Dame Silvia Cartwright reflected on this in 2006:

If we are to make changes to our constitution to reflect the role of the Treaty of Waitangi in New Zealand society, it is important that all New Zealanders walk together at more or less the same pace. 9

  • People who see change occurring without the need to take steps associated with deliberate and comprehensive constitutional reform. Such people might be comfortable with the current evolutionary dialogue that is occurring.  Some of these people might say we simply need more time. Others might think that the Treaty of Waitangi has more affinity with the political arena of negotiations than in the legal arena of enforceable rights and obligations scrutinised by courts. While the price of inaction might be continuing uncertainty about the place of the Treaty as present settings evolve, for these people, New Zealand might take a wait and see approach, comfortable with that price.  In 2011 Francis Cooke QC said:

The uncertain status of the Treaty has indeed created a degree of flexibility, and there may well be substance to the argument that it is this flexibility that has allowed New Zealand to manage the relationship between the Government and Māori in a manner that is satisfactory, particularly from a political standpoint. 10

Talk.  Decide to do something

The third viewpoint might be that held by those people who decide it is appropriate to do something to clarify the constitutional status of the Treaty of Waitangi.

Deciding to do something is not necessarily deciding to take action now. In an interview published in 2010 Moana Jackson answered the question:

How should the constitutional debate proceed?  With time.  As with everything else, a transformation requires time and space for considered debate and education. 11

Mention of that word “transformation” brings me to an important difference that is emerging among people who are advocating that we should do something to clarify the place of the Treaty in our constitution.

Those in the “do something” camp might divide into two categories of people. Those who would take steps to make room for the Treaty amongst our constitutional arrangements and those who would like to see the Treaty used as the foundation for a new constitution.  Do we add another room to the house or do we build a new house?  Is the architectural style going to be drawn from influences that are predominantly European, Polynesian/Māori or some fusion of these?

Do something - 6 options introduced

That brings me to the third and final part of this paper.

I have identified six options that are being debated by those who think our society should do something to settle the role of the Treaty of Waitangi in our constitution. These options also illustrate differences between people who would take steps to make room for the Treaty in our current constitutional arrangements and those who would like to see the Treaty used as the foundation for a new constitution.

Before going over these six options, it is important to recognise that they are under discussion by those who would favour doing something. But we do not yet know if there is community cohesion around this viewpoint that something should be done to clarify what constitutional role the Treaty of Waitangi has.

The six options are:

  • Discard the Treaty
  • Include the Treaty as backdrop or preamble to our constitution
  • State that the Treaty’s role in the constitution is to help with the observance of good process and healthy relationships
  • Restate Treaty rights as part of a package of constitutional rights
  • Make the terms of the Treaty legally enforceable
  • Make the Treaty the foundation of a new constitution

It will be obvious that some combinations of the final five options might be possible.

1. Discard the Treaty

This option would see a decision taken that the Treaty of Waitangi has no role in our constitution.  This option might be favoured by:

  • People who believe the Treaty promotes inequality or unjustifiable ethnic division.
  • People who believe the Treaty’s role is over when historical claims are settled or people who argue that the Treaty’s role was over in 1840 once governance of New Zealand was assumed by the Crown.

This option does not appear to be a strong theme from younger generations. 12

2. The Treaty as backdrop or preamble

This option might see the Treaty become explicitly part of the context in which the other elements of our constitution are applied. This option might be favoured by:

  • People who see the Treaty as part of the fabric and values underpinning the mechanical parts of our constitution. The Treaty might in that sense be recognised as foundational but not directly operative in the express rules about how public power is exercised.
  • People who want the Treaty kept apart (somewhat) from legislation and the law-making institutions such as Parliament. For some such people, the Treaty might be too important to surrender to law making processes where there is always the prospect of further change.
  • People who want to keep open a place for future development of the Treaty in the constitution if that time is not now. Such people might see a larger role for the Treaty in the future but decide the consensus of opinion is such that for now the Treaty should be an instrument that anchors how our constitution is interpreted and applied.

3. The Treaty to help to measure good process and healthy relationships

This option can be seen as building on the work that the courts and the Waitangi Tribunal have done to measure Crown actions against the principles of the Treaty of Waitangi.

Under this option people would be able to get courts to judge fair play in Crown-Māori relations.

  • Has a proper process been followed that is consistent with the Treaty or its principles?
  • Have the parties acted reasonably and in good faith towards each other? 13

This has strong parallels with what courts already do when people seek judicial review of the exercise of public power.  Courts measure whether the process followed was lawful and reasonable rather than becoming embroiled in whether the outcome reached was the right one.

Consistent with the approach to judicial review, under this option there would be less (or no) emphasis on courts determining the content of rights and obligations flowing from the Treaty of Waitangi.  That could mean that people who argue for this option might see this as an extension of the current approach whereby the Crown and Māori groups work out by negotiation what outcomes the Treaty requires in any given situation.

Placing the Treaty in the constitution in this way is not necessarily part of a package of “higher” law. 14

4. Treaty rights restated as part of a package of constitutional rights

Treaty rights could be analysed and restated as part of a package of constitutional rights. In doing so, the protections in the Treaty could be universalised or made applicable to indigenous peoples/collectives.

This option appeals to people who want to update the concepts underpinning the Treaty.  For instance, the protections in the Treaty of property rights might align with any future constitutional right protecting property. Confirming citizens’ rights and equality and non-discrimination rights might embrace the subject-matter of Article 3 of the Treaty of Waitangi.

This option might also appeal to people who see Treaty rights alongside human rights and international instruments such as the United Nations Declaration on the Rights of Indigenous Peoples.

5. Make the terms of the Treaty enforceable

Other people want the Treaty’s terms left as they are, to fall for interpretation as and when required.  For instance, rather than attempt to restate in fresh language what is protected by the term “taonga” (treasured things) in the context of the Treaty, to leave such interpretation in the hands of the courts with an expectation that this might mean the law on this will evolve as circumstances change.

Making the Treaty’s terms enforceable leaves it to the courts to interpret the Treaty and to decide what is required by way of remedy where Treaty obligations are not met.

This option is also not necessarily part of a package of “higher” law, for instance like the New Zealand Bill of Rights Act 1990 which is applied alongside other statutes.  But if the Bill of Rights Act was made higher law as part of constitutional reform, some people would argue that the Treaty should be similarly elevated so that other laws have to be measured against fundamental principles in the Treaty and in the Bill of Rights.

6. Make the Treaty the foundation of a new constitution

The independent iwi constitutional working group Aotearoa Matike Mai said in 2012:

… if Te Tiriti is the “founding document” as so many say it is then we will need to consider what sort of constitution might be founded upon it. The issue then is not how the Treaty might fit into a constitution but how a constitution might be based upon the Treaty. 15

Aotearoa Matike Mai has also argued:

  • Mana, and later rangatiratanga, were sources of power exercised by rangatira in a constitutionally appropriate way.
  • Te Tiriti o Waitangi reaffirmed mana. Any constitution founded on Te Tiriti has to be based on values and tikanga that mana expressed as well as recognising the place of kawanatanga. 16

People advocating for this option are urging New Zealanders to have a fundamental rethink about the values underpinning our constitution and the resulting institutions and mechanisms that should exist to reflect those values.

Māmari Stephens has observed that we cannot identify broader Māori attitudes to the exercise of civic decision-making power merely by looking at current institutions.  She suggests that we might undertake a broader enquiry into how Māori developed and practiced civic decision-making power across the course of New Zealand legal history. 17  That enquiry might inform fresh thinking about the rules for how public power should be exercised.

This sixth option is the most expansive.  I assume it will be the least familiar option for many people.

Conclusion

My aim has been to put a range of views before you. Both views as to whether the Treaty is a topic that requires constitutional reform as well as identifying views about what sort of options might be explored if there is to be reform. There might be other options.  And some of the options I have identified might work in combination. Whatever happens, expect the conversation to be an interesting one.

Notes:

  1. http://www.cap.govt.nz/store/doc/terms-of-reference.pdf (last accessed 10 August 2013).
  2. http://www.teara.govt.nz/en/treaty-of-waitangi (last accessed 10 August 2013).
  3. http://www.ourconstitution.org.nz/New-Zealands-Constitution (last accessed 10 August 2013).
  4. http://www.ourconstitution.org.nz/New-Zealands-Constitution (last accessed 10 August 2013).
  5. http://cabinetmanual.cabinetoffice.govt.nz/introduction (last accessed 10 August 2013).
  6. Rt. Hon. Sir Geoffrey Palmer QC, “The New Zealand Constitution in 2005” in New Zealand’s Constitutional Arrangements: where are we heading?  New Zealand Law Society 2005.
  7. See http://maorilawreview.co.nz/2013/06/maori-the-treaty-and-the-constitution-rt-hon-sir-geoffrey-palmer-qc/ (last accessed 10 August 2013).
  8. http://www.parliament.nz/resource/0000002679 (last accessed 10 August 2013).
  9. http://gg.govt.nz/node/574 (last accessed 10 August 2013).  It might be worth noting in passing that a lack of consensus in society on what to do about the role of the Treaty of Waitangi may make it harder to achieve other changes to our constitutional settings.
  10. Francis Cooke QC “The future of public law in New Zealand: a tale of two elephants” at 83 in Administrative Law – the public law scene in 2011 (NZLS intensive) New Zealand Law Society 2011.
  11. “Constitutional Transformation: an interview with Moana Jackson” at 333 in Weeping Waters: The Treaty of Waitangi and Constitutional Change, Malcolm Mulholland and Veronica Tawhai (eds) Huia Publishers 2010.
  12. For instance, see the sentiment expressed in Amy Dixon’s paper published in this issue that the Treaty might be a normal part of our public life (see p 32 of this issue or http://maorilawreview.co.nz/2013/06/the-treaty-as-a-normal-part-of-our-public-life/ last accessed 10 August 2013).
  13. Dr Matthew Palmer has advocated for this approach.  See http://works.bepress.com/cgi/viewcontent.cgi?article=1040&context=matthew_palmer (last accessed 10 August 2013).  He argues that the Treaty is mainly about fair processes in managing the on-going relationships that the Treaty partners intended to have on signing the Waitangi treaty.
  14. By “higher” law I mean laws that can be used to defeat other law that is inconsistent with the higher law. This is different from the usual situation where conflicts between laws are treated according to principles of (statutory) interpretation designed to reconcile the laws and read them together wherever possible. The glossary used by the Constitutional Advisory Panel describes supreme law as: “A law that has a higher legal status than other laws, meaning that Parliament must only pass laws that comply with the supreme law. The Courts would be able to strike down inconsistent law. New Zealand has no supreme law.” (http://www.ourconstitution.org.nz/Glossary last accessed 10 August 2013.)
  15. Aotearoa Matike Mai http://www.converge.org.nz/pma/iwi.htm (last accessed 10 August 2013).
  16. http://www.converge.org.nz/pma/iwi-about.pdf (last accessed 10 August 2013).
  17. Māmari Stephens “Māori Constitutionality (and the Treaty of Waitangi)” (see http://maorilawreview.co.nz/2013/06/maori-constitutionality-and-the-treaty-of-waitangi/ last accessed 10 August 2013).