Judicial Developments

A major Court of Appeal decision in June 1987 in the case of the New Zealand Maori Council v Attorney-General was critical to principle-based perspectives being taken seriously by the Crown. In September the previous year, the government had introduced a Bill to turn nine state establishments into ‘corporatised’ State-Owned Enterprises (SOEs) which would operate as fully commercial entities. Maori were concerned that transfer of land and other resources to the SOEs would jeopardise fledgling moves towards processes for Treaty-based reparations. In particular, the special value of land to Maori came into great focus. On one estimate, over half of New Zealand’s land area was to be transferred to the new corporations. Maori feared that the Crown would later be unwilling to claw back land and other assets from the profit-orientated SOEs to hand over to tribes in Treaty settlements. Even more significantly, SOEs would be allowed (indeed, expected) to dispose of lands surplus to their requirements on the free market, and the Crown would then be unable to utilise them as compensation to claimant groupings. Most seriously of all, many people saw (despite the official government line) that SOEs were destined for ultimate privatisation. If this occurred, all hope of reclaiming their land from the Crown would seem to have disappeared (although the possibility remained of state purchase, on behalf of tribes, of land coming onto the market). Protests from many quarters of Maoridom, and elsewhere, were vigorous.

At the Waitangi Tribunal’s Muriwhenua hearings towards the end of 1986, the claimants argued that landed assets removed from direct Crown control or Crown ownership would be unavailable for settlement. An interim report of 8 December agreed that the Bill thereby breached Treaty principles. This finding increased pressure on the Crown, and induced it to insert two new clauses into the State-Owned Enterprises Bill to protect Treaty commitments. Section 9 of the legislation (passed that same month) prohibited the Crown from acting in any manner ‘inconsistent with the principles of the Treaty of Waitangi’ when the SOEs were established on 1 April 1987, while section 27 protected the availability of Crown land for claims lodged prior to 18 December 1986 (the date of the Governor-General’s assent to the Act).

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This was an improvement but not an ideal solution, and the issues continued to be much debated in a wide range of Maori forums. The clash between the raised hopes of Maori and the right-wing policies of the government was so fundamental that the ‘official channels’ for the Maori voice, increasingly emboldened, joined their efforts to those of the more radical groupings. While traditionalist, ‘responsible’ and radical methods differed enormously, Maoridom’s overarching aspiration for the realisation of rangatiratanga provided a general unity of purpose. The NZMC, in particular, had been increasingly caught up in the heightening autonomist expectations which were developing during the decade of the 1980s. Like other Maori organisations, for a long time it had been moving well beyond demands for better consultation. Its members had come to believe that a significant degree of self-determination was not just desirable but achievable, and that settlements of historical Treaty-based grievances held out hope, inter alia, for providing some material bases for future development.⁴

Headed by Graham Latimer, the New Zealand Maori Council mounted its keynote legal challenge to the Crown on 30 March 1987, seeking to buy time with a last-minute prevention of the transfer of Crown assets to SOEs. Once again, the designated voice for Maoridom was showing that, although it had been created by the Crown, it would not be cowed when matters at the heart of Maori identity and resources (especially those concerning land) were at stake. The Court of Appeal responded dramatically (and, for the government, unexpectedly) at the end of June in the first judicial pronouncement on the ‘principles of the Treaty’ as incorporated into statute. The New Zealand Maori Council v Attorney-General case, also known as the Maori Council or Lands case, was depicted by the president of the Court of Appeal as ‘perhaps as important for the future of our country as any that has come before a New Zealand Court’.

The five judges unanimously confirmed the Crown’s duty to uphold the principles of the Treaty of Waitangi, which, they declared, overrode all other provisions in the State-Owned Enterprises Act. The court found that there were inadequate safeguards for Maori in the processes and structures intended to regulate SOEs: protection arrangements were needed over and above section 27 of the legislation. It instructed the Crown to consult with Maori to devise ways of ensuring the Treaty principles were not violated. The court saw section 9 of the Act as embodying the central principle that the Treaty was ‘akin to a partnership’, with each partner to the Treaty having enduring fiduciary duties with respect to the other. The obligations of the Crown included ‘active protection’ of Maori interests and the resolution of Treaty breaches; Maori, in turn, had a duty to be loyal to the Queen and her government. The court was endorsing, in effect, a common bicultural partnership enterprise between statepage 225 and Maori leaderships to assist New Zealand to heal the wounds of the past and to honour the Treaty in the present and future.⁵

The Court of Appeal set out parameters for the future relationship between Crown and Maori: the partners needed to ‘act towards each other reasonably and with the utmost good faith’, with a willingness to consult, cooperate, negotiate, adjust and, if necessary, compromise. With its ruling that, within the legislation under scrutiny, the principles of the Treaty were to take precedence over all else, the Treaty of Waitangi gained a ‘new life’ within the realm of New Zealand jurisprudence. While the Treaty could not be enforced in the courts unless it had been incorporated into an Act of Parliament, the judges had implied that the Treaty itself possessed some kind of constitutional status.

Beyond the central principle of seeking some kind of ‘partnership’, however, the ‘Treaty principles’ were vague. One of the judges stated that ‘it cannot yet be said that there is broad general agreement as to what those principles are’. Another suggested that the Treaty ‘should not be approached with the austerity of tabulated legalism’, but rather demanded a ‘broad, unquibbling and practical interpretation’. It might well be argued that ‘the principles of the Treaty’ amounted only to common-sense rules for managing cooperative relationships in which one party dominated. This itself constituted a step forward, however, especially since the vagueness of the principles effectively made the Treaty a ‘living instrument’. The Treaty was evolving, and its interpretation needed to take ‘account of subsequent developments of international human rights norms’ and adapt to ‘new and changing circumstances as they arise’.⁶

The Court of Appeal’s judgment became (in) famous for its implications for the concepts of principles, partnership and ‘living instrument’. It contributed greatly to the ‘mythologising’ (and, in some quarters, demonising) of the Treaty as a ‘symbol of a bicultural nation’. In a country in which biculturalism had quickly overtaken integration/assimilation as official policy, Treaty discourse provided a central contribution to the emergence of an ‘indigenous constitutional identity’ for New Zealand – one which incorporated rangatiratanga. Maori took great hope, especially, from judicial and other comments which implied that the Treaty had a constitutional status that should not ordinarily be negated by legislation.

The Maori Council judgment, in particular, was widely seen as representing a significant advance for Maori aspirations. Hiwi Tauroa emphasised this in a book with a topically optimistic title: Healing the Breach. Ranginui Walker, formerly a vocal critic of the ‘conservatism’ of much of the the NZMC leadership, felt that the case ‘pitched New Zealand firmly into the post-colonial era, from which there is no retreat. It was the beginning of decolonisation of New Zealand in the sense of dismantling hegemonic domination of the Maori by the Pakeha. No government can ever again rule Maori people while at thepage 226 same time dishonouring the Treaty, for the honour of the Crown itself is at stake’. The Waitangi Tribunal followed the court’s general line, helping place Treaty partnership obligations firmly on the political agenda.⁷

The Maori Council case was subsequently subject to searching scrutiny. In one academic strand of thought, the Court of Appeal had placed the Treaty in ‘common law time’, a ‘time without history’ characterised by principles that were ‘seemingly ageless’. Another critique noted that acceptance of the judgment also meant ‘accepting that sovereignty was held indisputably by the Crown’, the court’s authority being derived from this very concept. Some assessments concluded that ‘the principles’ (and negotiated measures based on them) represented a reinterpretation of the Treaty which, in reinforcing ‘the essential legitimacy and stability’ of the Crown, was thereby engaged in the processes of ‘cementing the hegemony of the state’ and ‘the interests of Pakeha capital’.

But the discourse was complex. The government did use the concept of the Treaty principles to counter Maori claims (and sometimes judicial and Tribunal findings) which even implicitly challenged indivisible Crown sovereignty. However, in turn, many tribes and organisations made good use of them in pursuit of their various claims and aspirations. Other groups and analyses continued to see anything emanating from the state as tainted. Some drew the Tribunal into the pool of those institutions allegedly compromised by their very location within the state. It was said to be ‘inevitable’ that the Tribunal, being ‘an agency of the Crown’, would never contemplate challenging ultimate Crown supremacy, and so it could be no more than just another co-opting institution. By the time of a 1988 report finding against Mangonui claimants on ‘public good’ grounds, the Waitangi Tribunal had, Jane Kelsey argued, ‘become as much a vehicle to deny tino rangatiratanga and legitimate the new treaty principles as any other judicial or government agency’.⁸