This article was first published by Stuff.
A group of King’s Counsel lawyers have written a joint letter to Prime Minister Christopher Luxon and Attorney General Judith Collins to “express grave concerns about the Treaty Principles Bill”, and seeking its “abandonment”.
In the letter provided to media on Wednesday afternoon, the senior members of the legal profession said they had “significant concerns” about the “substance” of the coalition Government’s bill, as well as about “wider implications for New Zealand’s constitutional arrangements”, and with “the process adopted”.
The letter, signed by 42 King’s Counsel, expressed how the existing principles were “designed to reflect the spirit and intent of the Treaty as a whole,” and they now represented “settled law”.
The main principles, they said, included partnership, active protection, equity and redress.
“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,” the lawyers’ letter said.
“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.”
Proposed principle ‘erases’ Crown guarantee to Māori
The top lawyers say in the letter that the Bill’s “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.”
Additionally, they said, “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. As the Waitangi Tribunal has pointed out, ‘[p]eople in a liberal democracy can and do have different rights’. Nor does it recognise the impact of colonisation and past Treaty breaches on Māori, which have created profound inequalities.”
Principles recognised by ‘successive governments’
The letter said the place of the Treaty of Waitangi in New Zealand’s constitution had been established over time with “all three branches of government recognising this”.
The legislature had incorporated te Tiriti into statute law by including “Treaty Principles” in a wide range of legislation, the lawyers said.
The judiciary had recognised the “constitutional significance” of the Treaty through the courts, and had “articulated the meaning of the statutory Treaty Principles in order to provide a principled framework for assessing the Crown’s obligations to Māori”.
The executive branch of government, the Kings’ Counsels said, had provided a framework for policy formulation and decision-making through the Cabinet Manual that “recognised the Treaty as a major source of the constitution, which accords ‘special recognition to Māori rights and interests’”.
“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.”
‘Uncertain’ if Parliament can legislate like this
“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,” the King’s Counsels’ letter said.
“This would offend the basic principles which underpin New Zealand’s representative democracy.
“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.”
The top legal professionals also said constitutional reform involving te Tiriti was 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 letter outlined some limitations on process, including constraints on timeframes for “in-depth policy analysis”, and also concerns about the “meaningfulness” of the Select Committee process - in this case.
“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 Bill and intended referendum were “wholly inappropriate” for such an “important and complex constitutional issue, particularly one which so profoundly impacts on indigenous right,” they said.
In a closing statement in the letter, the King’s Counsels urged the Government to “act responsibly now and abandon the Bill”.
What Seymour has said about the Bill
The minister in charge of the Bill, David Seymour, argued it would provide clarity about the purpose of Te Tiriti o Waitangi.
“The Bill will not alter or amend the Treaty itself. It will be used to assist with the interpretation of legislation where Treaty principles would normally be considered relevant,” he had said.
Seymour had also spoken about the “opportunity” the Bill presented to New Zealand for a conversation about the Treaty.
“The Treaty Principles Bill provides an opportunity for New Zealanders - rather than the courts and the Waitangi Tribunal - to have a say on what the Treaty means.
“Did the Treaty give different rights to different groups, or does every citizen have equal rights? I believe all New Zealanders deserve to have a say on that question,” he said.
The bill was introduced to Parliament despite the National Party saying it would not be supporting it to become law.
Luxon has, however, promised to vote in favour of the Bill going to a select committee process - which was expected to last for six months.
The Bill was originally set to be introduced to Parliament on November 19, but was brought forward.
A hīkoi protest is due to arrive at Parliament on that day, as part of the Toitū te Tiriti movement.
On Wednesday, the protest crossed the Auckland Harbour Bridge as it heads south to Wellington.
- Stuff