Editorial: Fine legacy of Law Lord bar none

Opinion

Lord Robin Cooke, who died in Wellington on Wednesday, has been described as the pre-eminent jurist in New Zealand's history. No other New Zealand judge has been made a British Law Lord, sitting not only in the Privy Council but in the House of Lords hearing appeals from the courts of the United Kingdom. But it was earlier, as President of the New Zealand Court of Appeal, that Justice Cooke gave his most important rulings for this country and became contentious in conservative circles for "judicial activism".

Robin Cooke is the principal author of today's legal application of the Treaty of Waitangi. It fell to his court to interpret legislation passed by Parliament referring to the principles of the Treaty. His landmark judgment, New Zealand Maori Council v Attorney-General 1987, began: "This case is perhaps as important for the future of our country as any that has come before a New Zealand court."

It required a review of the 1840 events and the intentions and understandings of each side at Waitangi, the differing Treaty versions presented in English and Maori, the textual scholarship and attempts by the Waitangi Tribunal to fulfil its statutory task of reconciling the texts.

Even the status of the Treaty was indeterminate. Was it to be regarded as an ordinary contract in domestic law or as a Treaty between nations, as the Maori Council saw it, to be interpreted according to principles of international law? Or, said Justice Cooke, should it be approached as a basic constitutional document evolving in its interpretation to changing circumstances over the years.

Little wonder, given these uncertainties, that he chose to focus on the "spirit" rather than the letter of the Treaty in an attempt to find its principles. Even then, the court was presented with starkly different propositions. The Maori Council argued that the principles included a duty on the Crown to protect a Maori way of life, to consult, return land, to accord the parties equal status and give priority to Maori values.

The Crown contended there was no duty even to consult, that the principles of the Treaty were what it said: that the Crown should govern and Maori authority should be maintained over certain specified resources.

Justice Cooke decided the guiding principle of the Treaty was an undertaking of the parties to deal with each other in good faith. Each should approach issues with "an honesty of purpose" which meant "an honest effort to ascertain the facts and reach an honest conclusion".

Good faith sounds like an unobjectionable principle but it implied obligations to consult and reserve and protect to an extent that is still contentious. National Party leader Don Brash seemed to repudiate much of the Cooke legacy in his Orewa address a few years ago.

But the "activism" associated with Sir Robin's judicial leadership continues in the hands of the Chief Justice, Sian Elias, and our leading judges today.

The Court of Appeal ruling on the foreshore and seabed was a piece of judicial law-making more daring perhaps than anything Sir Robin had done.

He believed that government was best done not by a parliamentary majority alone but with the judiciary in a balancing role, neither institution enjoying absolute power over the other.

He became an enthusiastic, possibly crucial, advocate of the indigenous Supreme Court with the authority previously referred to the Privy Council.

He had sufficient faith in the calibre of this country's judges, and they can have no greater recommendation.

He has left them with lessons in how law can be made to live and serve social change.

His influence will endure.