Rt. Hon. Sir Geoffrey Palmer QC’s paper, Māori, the Treaty and the Constitution delivered to the Māori Law Review symposium on the Treaty of Waitangi and the constitution, held on 12 June 2013.

This paper is an edited extract from Sir Geoffrey’s forthcoming book, Reform – A Memoir, to be published by Victoria University Press in November 2013.

The Treaty

If there is one thing that is unique about New Zealand it is that the indigenous inhabitants of the country are Māori. They have their own language, culture and way of thinking. They were subjected to rank injustice in colonial times. It has taken a long time to remedy those injustices, and the process is not yet complete. Unfortunately disguised prejudice is never far from the surface in New Zealand whenever there is a debate on Māori issues. There is an unpleasant underside to the New Zealand psyche when questions of race are debated. These things I learned only by exposure to the issues in Parliament. Many years later I still get letters blaming me for elevating the status of the Treaty of Waitangi. I remain unapologetic, I would raise it further. I thought then and I still think now that the most serious challenge New Zealand faces is to avoid having a permanent underclass defined by race. I have lived in the ghetto in the South Side of Chicago and have seen what that can do to a society. The atmosphere on these matters in New Zealand has gradually improved, although it tends to go in cycles.

Official policy for many years in New Zealand had been against the grain of Māori culture. The structures of traditional Māori society – the whānau, hapū and iwi – were strong. Very much a collective culture, it derived strength from that feature. The structures weakened after the Second World War as Māori migrated to the cities in search of employment. Official policy encouraged assimilation and there had been a lot of intermarriage. But people with Māori ancestors still feel themselves to be Māori. The language began to die and had to be supported by government. Many Māori were adrift from their tribal roots. Criminal offending among Māori was high and close to half the people in prison were Māori. Māori health and life expectancy were lower than for Pākehā. Educational qualifications and incomes were lower. Rates of mental illness and unemployment were higher among Māori. These facts had to be considered against a context in which the dominant culture gave undertakings to the minority at the beginning that legitimised the majority’s presence in New Zealand, only to ignore them later when they were firmly established as the majority.

In Parliament I was introduced to the fearsome complexity of Māori politics. Māori MPs have a more difficult life than their Pakeha counterparts; they spend their weekends in remote places in endless debate on the marae. Furthermore, there has been a massive Māori renaissance in the last twenty years and the progress has been remarkable. Working with Koro Wetere, the Minister of Māori Affairs, taught me much. The issues, however, mutated, multiplied and developed in ways that made it seem to me sometimes that I had only Maori issues on my ministerial plate.

The place of the Treaty of Waitangi in New Zealand history has fluctuated. But it has always been surrounded by controversy. Its signing marked the beginning of constitutional government in New Zealand. Sir Robin Cooke when he was President of the Court of Appeal described the Treaty as “simply the most important document in New Zealand’s history.” ¹ The legitimacy of the government we conduct on these islands flows from the Treaty. Undertakings were given to Māori by the Crown in the Treaty when the Crown assumed authority over New Zealand. Whether those undertakings have been honoured has been a burning issue ever since. The truthful answer was that expressed by the Queen in her speech at the Waitangi commemorations in 1990: the obligations have been “imperfectly observed.”

The matter is complicated by the difficulty of determining what the undertakings mean in contemporary conditions more than 170 years after the document was signed. For many years the New Zealand courts held that the Treaty was not part of the law of New Zealand because it was a “simple nullity. No body politic existed capable of making cession of sovereignty, nor could the thing exist itself.” ² This view is now recognised as a wrong approach to international law but it persisted for a long time. Even so, then and now, the legal recognition of the Treaty depended upon it being incorporated by statute into New Zealand domestic law. The Treaty received little legislative recognition until the Fourth Labour Government. The only part of the Treaty which was quickly translated into statute law was the Crown’s right of pre‑emption in Article II of the Treaty, which was adopted in substantially similar terms in the Land Claims Ordinance 1841, and later in the Constitution Act 1852. Otherwise it was necessary, in order to rely on a Māori right protected by the Treaty in court, to be able to point to statutory recognition of the right. The Court of Appeal reaffirmed that to be the position in 1992. ³

The net effect of the law as it was when I began to have policy responsibilities in this area was that Treaty protection depended upon Parliament, not the courts. Parliament had passed the Treaty of Waitangi Act 1975 setting up the Waitangi Tribunal to look at Māori grievances under the Treaty, but it was prospective only; it could not examine breaches of the Treaty before 1975. It gave power to take grievances to the Tribunal but not to have the Treaty litigated in the courts.  Professor Quentin Baxter at Victoria University had been advising the then government on these matters and I recall discussing it with him at that time. He was cautious about it. The approach was to put a toe in the water and see how it worked out. There did also exist the specialised jurisdiction of the Māori Land Court and the doctrine of aboriginal title, which was a common law doctrine recognised in New Zealand since 1846. It was that doctrine that caused the case that blew up into a full scale political row concerning customary Māori rights in the foreshore and seabed case in 2003. ⁴

If the remedying of injustice under the Treaty could only be done by Parliament under our existing constitutional structure, then the big obstacle was what John Stuart Mill called majority tyranny. If the legislation addressed the grievances, then majority tyranny would kick in and the likelihood of the issues being addressed in a principled fashion would be reduced.  Elected politicians should not be involved in the investigation and formulation of the appropriate remedy. So Parliament had to be persuaded to initiate action, but not determine the nature of the grievance. A set of procedures, processes and principles was likely to work better.  Thus, it seemed to me that the aim could be achieved by having Parliament set up a body to investigate and report. That meant extending the jurisdiction of the Waitangi Tribunal back to 1840.

When Labour was in Opposition and I was the secretary to the Policy Council I heard repeatedly the continuing political refrain that “the Treaty is a fraud.” Later when I became Deputy Leader I chaired the Policy Council. The Labour Party at that time held all the Māori seats and there was a separate Māori Policy Council as well, although it had difficulty in reaching agreement. We began looking at the consequences of extending the jurisdiction of the Tribunal back to 1840 to deal with the manifest injustices that had been visited upon Maori by the settler Parliaments of the nineteenth century. I did some research on the outstanding grievances and while they were substantial I thought they were manageable. It has taken longer than I thought, although the end is in sight.

Having taught law in the United States I was familiar with developments in indigenous rights in the United States and Canada and they were progressing fast, particularly in Canada. It seemed to me that creating a body equipped with proper research tools and powers of inquiry to look into historic grievances and recommend what should be done about them was a good way to reform the system. This view was buttressed by the decisions of the Waitangi Tribunal under Judge E T Durie that I read. They were careful and measured as well as being uplifting. I was particularly impressed with the Motunui report. ⁵ As he said the Treaty was an exchange of gifts: “The gift of the right to make laws, and the promise to do so as to accord the Māori interest an appropriate priority.” This was a case where Māori objected to the discharge of untreated sewage and industrial waste from the Synfuels plant at Motunui because it would pollute fishing reefs. The Government proposed to ignore the finding and was forced to retreat after heavy publicity. There were two striking features of the Motunui report. The first was the rediscovery of the Māori language version of the Treaty, from which has flowed a new political vocabulary. And the other was procedural: hearings could be conducted on marae. There followed other tribunal decisions on the Kaituna River, the Manakau Harbour and the decision on Te Reo Māori concerning the language. The development of a coherent jurisprudence by the Tribunal gave me confidence that extending its jurisdiction back to 1840 would be an appropriate course to take.

So the policy was developed, although not without difficulties with the Māori MPs. Some of my most enduring memories of dealing with Māori issues are how difficult it is to get Māori MPs to agree on any Māori policy. The person whose instinct, acumen and judgment I came to trust most was that of Koro Wetere, who became Minister of Māori Affairs in the Fourth Labour Government. We accomplished much together and he is a person for whom I have an abiding respect.  From him I learnt what it was to be Māori in Aotearoa. He was the most fluent Māori speaker in the House and I received from him some understanding of the values that drive Māori culture. In Opposition a number of caucus members including me had lessons in Te Reo Māori. Koro said I was bottom of the class in pronunciation.

I announced the Māori policy when David Lange was away in Europe on 2 February 1984 and it attracted some raised eyebrows. It seemed radical to some to give the Waitangi Tribunal power to examine claims back to 1840. But the commitment was made in clear and specific terms. It could not be watered down or backed away from. And it was done. However the Department of Māori Affairs was weak in generating Cabinet papers and preparing instructions for legislation, and when it came to implementing the policy I had to get some of my Justice officials to assist Koro’s so the papers had the depth and rigour required for an exercise of that character. Koro and I worked as a team on this whole project. The Treaty of Waitangi Amendment Act was passed in 1985. It increased the size of the Tribunal from three to seven members and because of the pressure of work it was enlarged again in 1988.

The decision to extend the jurisdiction of the Tribunal was the key decision made by the Fourth Labour Government on Māori issues. The state-owned enterprises case, the question of Maori fishing rights and many other developments flowed from it. Large numbers of settlements have been made in the years since and the habit of negotiating directly with the Government has speeded matters up. In 1990 as Prime Minister I began direct negotiations with Tainui over their claim. I have vivid recollections of a hot day on a marae with large numbers of people. In law practice later I did some Waitangi Tribunal claims and found it an endless source of fascination. Probably it was one of the most important decisions I made when in politics to extend the tribunal’s jurisdiction back to 1840. The move was a bridgehead that changed everything.

The Policy for the 1984 election also contained a commitment to introduce a Bill of Rights and that included a promise to include the Treaty to Waitangi within it. In September 1984 an important hui was held at the Turangawaewae marae at Ngaruawahia and it projected a mood of scepticism towards the entrenched Bill of Rights containing the Treaty. The attitude was “suspicious, uneasy, doubtful or undecided.” ⁶ We were obliged, due to Māori opposition, to drop the Treaty from the Bill of Rights. That was a great pity and it is a step that I advocate be taken still in the context of having a superior law Bill of Rights.

The Treaty within the Executive

We found as ministers when we became the Government that we regarded the Treaty as important but the bureaucracy on the whole did not. They gave little weight to it if they knew about it. There was no source of good advice within the public service about it. Māori Affairs were, of course, not detached when it came to Treaty advice given their overall mission and it was necessary to be circumspect about what they thought the Treaty meant. The indifference to treaty issues within the public service was brought to my attention by Jane Kelsey, a University of Auckland academic.  In answer to a letter questioning whether exports of kina were contrary to the Treaty the Ministry of Agriculture and Fisheries said the treaty was not part of New Zealand law and the Ministry could not give effect to Māori fishing rights. The letter was contrary to the Ministry’s own legislation. There had been a provision in the fisheries legislation more or less continuously since 1877 which required the recognition of Māori fishing rights. MAF had actually told the Waitangi Tribunal that it had not implemented the legislation because it would fall foul of the Race Relations Act! This called for firm action to turn the bureaucracy around so that it followed government policy.

Koro and I put together a Cabinet paper that required departments to take treaty considerations into account, become familiar with them and handle them properly. In June 1986 Cabinet agreed all future legislation referred to Cabinet at the policy approval stage should draw attention to any implications for the recognition of the Treaty of Waitangi. We agreed that departments should consult with appropriate Maori people on significant matters affecting the application of the Treaty and that the financial and resource implications of recognising the Treaty should be assessed wherever possible. It was quite a battle to get officials to stop ignoring the Treaty. The whole culture of the public service had to be sensitised to Māori and Treaty issues, they could not be left only to the Ministry of Māori Affairs. But the ship was turned around in the end.

The Department of Justice came into its own in helping to provide proper advice for the Government on Treaty issues. I obtained from Cabinet authority to set up in Justice a unit to deal with the Crown response to Treaty negotiations. It was headed by my former academic colleague, Alex Frame, who had a deep interest in these issues. ⁷ The unit had several purposes: to act as the centre within Government for the Crown’s policy on Treaty matters, to generate that policy, to coordinate the activities of other departments on the Treaty and negotiate directly with Māori on claims. I had done enough direct negotiations myself to realise how difficult and time consuming it was.

In March 1989 a Cabinet paper went up seeking permission for a group of officials to prepare a paper setting out the principles upon which the Government proposed to act on Treaty issues. It was to be balanced so that the Crown’s rights and obligations were both stated. The Treaty unit and Alex Frame were the main authors of the report later adopted by Cabinet and published on 4 July as “Principles for Crown Action on the Treaty of Waitangi.” Some thought it was a self-serving declaration designed to allow the Crown to avoid obligations. But there was no intent in this document to rewrite the Treaty. It was designed to have a clear statement of where the Government stood so departments and agencies could have clarity. Some of them had bizarre ideas of what the Treaty entailed. We needed clear principles that would be applied by the whole government system and that is what we got.

There were five principles:

• Kawanatanga – the principle of government;
• Rangatiratanga – the principle of self-government;
• Equality;
• Cooperation;
• Redress.

The statement developed each of these principles crisply. The advantage of the effort was that it gave the government a place upon which to stand. They were designed to provide a framework for action by one Treaty partner.

It is often thought by people outside government that Māori issues receive little treatment within government, but that has changed enormously in the years since 1975. My son Matthew has written a book in which the detailed decisions made by the Executive over the years are to be found. ⁸ Those decisions tell a story of increased engagement and a real effort to get to grips with the issues, define the problems and solve them.

As a result of the Treaty policy we began to include treaty clauses in legislation in 1986. Section 4 of the Conservation Act 1987 provided in section 4 “this Act shall be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.” The Environment Act 1986 required that in the management of natural and physical resources “full and balanced account is taken of the principles of the Treaty of Waitangi.” ⁹ As this practice spread it became important to know more about what precisely was involved in such undertakings in general legislation. In the design of the Resource Management Act we spelled out in detail a number of important Maori concepts concerning environmental management. Working through in detail the Treaty issues, as was done in the Resource Management Act or Te Ture Whenua Māori (the Māori Land Act 1993), requires much heavy and time consuming work. But passing statutes that impinge on vital Māori interests, such as conservation, with no reference to the Treaty was risky, I thought.

The courts thunder into the Treaty

The State-Owned Enterprises Act 1986 produced the most dramatic case on Māori issues ever decided by a New Zealand court up to that time. The case proved to be a stern test of the Government’s resolve to stick to the principles it had adopted. The genesis of the Act had its origins in the economic policy of the government. I had designed the Act and as a result massive resources, forest, electricity generation, mines, tracts of Crown land and the post office were to be transferred to SOEs. Not only were the economic implications of the changes far-reaching but the policy also involved big legal changes. The powers, legal personality and accountability structures would move out of direct ministerial control and departmental control into new structures crafted by the Act.

Māori became concerned that this big re-organisation would have the effect of denying them their rights under the Treaty. Māori came to see me about it and others went to see David Lange. Sir Hepi Te Heu Heu saw the two of us the night before we were to deal with the Committee stage of the Bill in the House. Māori concerns had not arisen until a late stage in the progress of the legislation. The Waitangi Tribunal did issue an interim report drawing the attention of the government to the consequences of the legislation and raising the question whether the bill was contrary to the Treaty. I thought the point was a good one. I did not have time to go to Cabinet over it since the legislation was upon us. I talked to David but no other minister. Colin Keating and I devised what became section 9 of the SOE Act that provides: “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.” Another amendment was made to what became section 27, to give explicit protection to claims filed before the Act received the royal assent and gave recognition to any recommendations of the Tribunal after that date. My own view was that in respect to fresh claims which had not then been formulated or lodged the Crown would still have to face up to them and make amends if the Tribunal so recommended. But that did not necessarily mean giving back the land.

The New Zealand Māori Council, after passage of the Act but before transfers were made, brought proceedings for a declaration to stop the transfer until arrangements were made to deal with Māori claims of those assets. As the Attorney-General I had to attend closely to this litigation. I strengthened the Crown legal team by bringing in D A R Williams QC to appear with the Solicitor-General, Paul Neazor QC. The legal advice I had received was that section 9 could not read in the way Māori contended.  I thought myself the court, in order to upset the transfer, would have to read down the very specific provisions of section 27, in order to make section 9 controlling. I was wrong. The Court of Appeal held that the Treaty clause overrode everything else in the Act. The President of the Court of Appeal said in his judgement “this case is perhaps as important for the future of our country as any that has come before a New Zealand Court.” ¹⁰ The five judges who heard the case were all agreed but they all gave separate judgments.

The court gave great weight to the Waitangi Tribunal and so did subsequent cases in the Privy Council. It found the Tribunal findings of “great value.” Textual differences between the Māori and English versions of the Treaty should not matter much because what did matter was the spirit of the Treaty. It was a partnership between Māori and the Crown. The court ruled that section 9 meant that the Crown was obliged to establish a system so it could consider, in relation to particular assets, or categories of assets, whether such a transfer would be contrary to the principles of the treaty and therefore unlawful. In other words we had to find a way to safeguard lands and waters in such a way as to avoid prejudice to Māori claims. The court made the point that the decision was only possible because Parliament itself had put the reference to the Treaty in the legislation.

After much heavy negotiation and detailed legal work the Treaty of Waitangi (State Enterprises) Act 1988 was passed. This allowed the transfers to be made to the state‑owned enterprises, but subject to claims before the Tribunal. The transfers were to be noted on the titles that they were subject to resumption by the Crown, so that third parties taking title would know what they were getting. The Tribunal in this category of case was given the power to make binding decisions concerning resumption, not mere recommendations. And in 1989 the Crown’s commercial forest was added to this regime in order that cutting rights to the forests could be sold. This was done in the Crown Forests Assets Act 1989. These powers have been used with great circumspection by the Tribunal and used only once, in relation to Turangi township. The National Party wanted to repeal them but thought better of it. It seems to me the resumption provisions have added bite to the Tribunal and have given incentives to the Crown to settle. The effect of the 1988 Act was that both Māori and the Crown secured what they wanted: in the case of Māori, protection of their Treaty rights, and in the case of the Crown, implementation of its state-owned enterprises policy.

The SOE case was not the end of the litigation. There were challenges on various ways the Crown proposed to transfer coal, forestry assets, and broadcasting assets to SOEs. The coal case particularly upset the government. ¹¹ Tainui brought a case before the tribunal concerning confiscated lands. Tainui thought they may be entitled to the coal under these lands. The mining rights were with the new SOE Coalcorp. The Crown argued that mining rights were not caught by the 1988 act because they were not an interest in land. The Court of Appeal held that they were caught by the Act, a blow to the government that thought Coalcorp should be privatised.  The Court of Appeal held fast to its previous decision and when that was tested at the Privy Council in 1993, the approach of the New Zealand courts was upheld.

All this was revisited in the 2013 decision of the Supreme Court in the case involving the decision of the government to partially privatise Mighty River Power. ¹² Although the Crown won it was clear to me that the current crop of ministers and public servants were not familiar with the great cases of the 1980s and almost came unstuck because of the way in which they organised matters at the early stages. They thought the mixed ownership model legislation of 2012 should not have a Treaty clause and then when it got one they were slow to understand its implications. One was grudgingly inserted.

By the end of 1989 a big political backlash set in – we had lost a string of high profile Māori cases and the Tribunal was making findings for Māori. The Māori fishing rights was caught up in this as well. We also established the Māori Language Commission and made Māori an official language. The Government was securing a reputation for doing things for Maori but not for anyone else. A white backlash of substantial proportions set in aided by Winston Peters. One Labour MP, Ralph Maxwell, called for the Treaty to be scrapped and another agreement made. Some ministers were full of disquiet, but not all.

Cabinet wanted me to take a stand and say contrary to some of the dicta in the Coalcorp decision that courts finally rule on whether a solution is compatible with the Treaty, that the Government had the last word in these matters. A Cabinet paper was prepared under my supervision setting up a Crown Task Force on Waitangi issues to develop the Crown’s position for Waitangi Tribunal hearings, direct Treaty of Waitangi negotiations and court proceedings. We needed to be seen to be decisive and in control. I made a speech to the Wellington District Law Society announcing these decisions and went further.  I said I disagreed with the personal observations of the President of the Court of Appeal as to where the final responsibility rested in the Tainui case. I said “we have come a long way in a short time. That has caused anxiety to many New Zealanders who have found much of the process bewildering and disturbing.” ¹³ This was not a surprising position for a government in a system with parliamentary supremacy to take. The trouble was, I was no believer in parliamentary supremacy. My mail about the Treaty was always adverse and voluminous, but I was not deterred by it. Many of my colleagues were. The purpose of the whole Treaty enterprise was to produce some restoration and some healing. Justice is like that.

Conclusion

These developments, and indeed later developments, have meant that substantial grievances of the Māori minority have a good chance of being handled in a principled fashion. Insulation from the ravages of extreme opinion has been achieved. The settlements have become mainstream. 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. From a constitutional point of view the developments have been significant, because in many situations the courts are empowered to rule on treaty issues as to whether requirements have been met. The courts are better protectors of “discrete and insular minorities” than the majoritarian legislature, even under MMP. I remain of the opinion that the Treaty, like the Bill of Rights, should become part of New Zealand’s new superior law Constitution. We now know a great deal about how the courts will go about the task of interpreting the Treaty, just as we know how the courts go about interpreting the Bill of Rights Act. We have had more than twenty years’ experience of both. The Supreme Court decision on Mighty River Power in 2013 raised barely a ripple. We cannot go backward on these issues, but we need to summon up the political courage to go forward.

Author: Sir Geoffrey Palmer

Rt. Hon. Sir Geoffrey Palmer QC was a law professor in the United States and New Zealand before entering politics as the MP for Christchurch Central in 1979. In Parliament he held the offices of Attorney-General, Minister of Justice, Leader of the House, Deputy Prime Minister and Prime Minister. On leaving politics in 1990 he was a law professor at the University of Iowa and Victoria University of Wellington. In 1994 he became a Foundation Partner of Chen & Palmer Public Law Specialists where he remained until 2005 when he was appointed President of the Law Commission (2005-2010). He has appeared extensively in the superior courts including the Privy Council. Sir Geoffrey is a Distinguished Fellow of the New Zealand Institute of Public Law and the Law Faculty at the Victoria University of Wellington.

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