Dialogue: Health warning - this may damage your treaty

By SIR DOUGLAS GRAHAM*

The fact that the Labour Maori caucus seems to have persuaded the Government to reject the advice of officials and to insert a Treaty of Waitangi clause in upcoming health legislation should come as no surprise.

For 150 years Maori tried to enforce the treaty in the courts but were told the court had no power to hear treaty claims. This was because the treaty, an international agreement between nations, had not been adopted into our domestic law, which is done by making specific reference to the treaty in parliamentary statutes. So Maori were left high and dry.

It was not until the late 1980s that Parliament began to insert treaty clauses into statutes and there are now over 30 examples sprinkled throughout the statute book. Now the courts had the ability to interpret and apply the treaty in that particular category of the law.

The treaty clauses usually require those carrying out that particular law, for example Department of Conservation staff, to have regard to the principles of the treaty when making decisions. If they don't, the court can grant an injunction until they do.

For Maori, therefore, the more references there are in the statute book the better it is, because where it exists they can try to persuade the court that the Crown has a treaty duty which has been ignored. So a treaty clause for Maori certainly does no harm and, in the event the court finds in their favour, might well do a lot of good.

One consequence of all this is that the courts are now much more involved than ever before and, conversely, the power of the politicians has been reduced.

Given our history of procrastination in addressing valid grievances, it is hard to argue that the courts should not be able to decide what the principles of the treaty are, and when and how and to whom they are to apply. But, nonetheless, there is a serious risk here which may not have been appreciated.

It arises from the ability of Parliament to make laws and the duty of the courts to interpret and apply them. There is little doubt the treaty tried to protect the customary ways of Maori. Their lands, fisheries and forests were guaranteed to them and the clear intention was that they had the right to follow customary practices. That right, recognised under English common law, survived the transfer of sovereignty. And so any interference with their rights to tribal land, food-gathering and other traditional activities which could be established may well have - and, indeed, did - breach the treaty guarantee.

To be denied access to the courts was simply outrageous. Today, to the extent those matters are still relevant, access should be automatic and, accordingly, a treaty clause in conservation law, resource management, minerals, heritage and so on seems appropriate and necessary.

If, for example, a proposed law could possibly result in the destruction of historically important sacred sites such as burial grounds, the law should unquestionably require prior notification to the local iwi and full and open consultation. That respects the treaty promises.

But in other areas it is far less obvious. In health, education, welfare, housing and the social services generally the question is whether the treaty is relevant at all.

Did the signatories really consider Maori were to have any different rights in these areas than any other New Zealander?

Did the treaty really guarantee all Maori would enjoy good health with compensation if they did not?

Could the Maori chiefs, many of whom were probably smoking as they signed the treaty, have in their wildest dreams contemplated that a century and a half later it would be claimed that the Government was in breach of the treaty because some Maori suffered poor health through smoking?

And was it really the intention that Maori would have some priority when it came to the provision of services not due to exceptional need but on the grounds of race? Did the treaty really guarantee that Maori would not be allowed to fail?

Surely it is more likely that, looking ahead, both parties wanted Maori property and customary rights to be respected and some redress made available when they were not, but in other areas everyone would be on the same footing with the same entitlements.

If this is so, a treaty clause has no place in statutes dealing with social issues because it is not relevant. Entitlements to health, education, welfare, housing and such like are not drawn from the treaty at all but through citizenship. To insert such a clause to pacify the Maori caucus is extremely unwise.

If the Government believes there are treaty rights in these social entitlements it should say so. If it does not believe that, it must be secretly hoping the court will reject any court action by Maori and nobody will have to worry.

But here's the rub on that score. When Maori inevitably go to court to see how far the treaty extends, the courts will look at the statute to try to interpret the will of Parliament. The judges will conclude that Parliament must have intended the treaty to have relevance and that Crown duties exist because Parliament had put a treaty clause in the legislation. So the courts may extend the treaty coverage when that was never the Government's intention.

In any event, it would have very serious consequences indeed and would undoubtedly be extremely divisive.

The Government should think again and withdraw the treaty clause from the health bill.

Maori can still be consulted and can still be contracted to provide health services, as should other ethnic groups. That is just common sense. But to appease the Maori caucus as payback for political support in this way and decline to make the difficult decisions is unacceptable.

And the Maori caucus should remember, too, that MPs are there to further the interests of all New Zealanders and not just one sector. Wrongs done in the past do not justify unbalanced decisions now.

At a time when a great deal of effort is going into addressing real grievances which clearly did arise under the treaty, such as unfair land confiscation, it is foolhardy to push the boundaries and raise the ire of non-Maori. This can ultimately prove to be very counterproductive.

The Minister of Health, for her part, says the treaty clause will further what she calls the partnership between Maori and the Crown.

This so-called partnership concept came into common parlance after a Court of Appeal case in the 1980s. The judges were attempting to describe the duties the parties to the treaty owed each other. They likened it to the obligation partners in a partnership had, but they did not say that the treaty actually created a partnership and nor did it.

While the ongoing relationship is undoubtedly special and very important, it is not a partnership as that is commonly understood. There are rights both parties have under the treaty that must be respected. But there are many areas where the treaty is simply irrelevant. The provision of health services is one of them.

*Sir Douglas Graham is a former Attorney-General and Minister of Treaty Negotiations