Maori judge vital in treaty cases: Cooke

By AUDREY YOUNG political editor

The father of the modern-day concept of "partnership" under the Treaty of Waitangi, Lord Cooke of Thorndon, said there should be provision in the proposed Supreme Court to co-opt Maori judges for Maori cases.

Lord Cooke presented arguments before a parliamentary select committee yesterday for ending final appellate rights to the Privy Council.

He also became involved in discussion over the "principles" of the Treaty of Waitangi, which has become an increasingly political debating point by Opposition parties.

New Zealand should "take charge of our own judicial destiny", Lord Cooke told 12 MPs, including five former lawyers.

But he supported the provision of a panel of overseas judges from which the Chief Justice could draw for different cases.

He himself hears final appeals in Hong Kong and in Samoa and believes overseas judges always bring a fresh perspective.

Lord Cooke, who turns 77 tomorrow, is New Zealand's most prominent modern jurist.

He delivered the landmark judgment in the 1989 forest case (NZ Maori Council vs Attorney-General) that defined the Treaty of Waitangi as a partnership.

Many Pakeha had a grasp of tikanga Maori (Maori custom), he said, but not an instinctive knowledge born of experience and Maori ancestry.

As "part of the partnership concept which underlies the treaty" it was a good idea to have a judge with an understanding of tikanga Maori.

That has been proposed in a paper on the methods of appointment of the five Supreme Court judges.

But he also thought the Chief Justice, who would head the Supreme Court, should have the power to co-opt Maori judges to hear Treaty of Waitangi cases.

"You can't expect all the judges to have skills in all fields.

"Although you may have some permanent members of the court who are familiar with Maori lore and tikanga Maori, I think it's not quite the same thing as having somebody with first-hand knowledge of the subject ... If there were a qualified Maori available in one of the other courts, I would favour the power to co-opt him or her."

One of the criteria for having a Supreme Court hearing under the bill is for the case to deal with significant issues relating to the treaty or tikanga Maori.

Lord Cooke rejected suggestions by National leader Bill English that the Supreme Court might become "activist" in terms of constitutional developments regarding the treaty.

"Its constitutional role would be no different from any final court of appeal such as the Privy Council itself or the House of Lords."

He said the Court of Appeal had been called "activist" in his day.

"This is another weasel word. It means all sorts of things to all sorts of people."

"In regard to the Treaty of Waitangi in particular, the court was activist or active only in the sense that it gave effect to what Parliament had enacted in the[State-Owned Enterprises] legislation.

"But some sensible meaning had to be given to provisions in the act that stated that nothing in the act should enable the Government to override the principles of the Treaty of Waitangi.

"Either that had to be given some effect or it had to be treated as a dead letter which Parliament simply enacted as window-dressing."

Once it was accepted that the clause had to be given some meaning, it became necessary for the courts say what the principles were "because they had been left undefined - and not surprisingly so, because it is a matter of gradually working out the principles rather than attempting to define them all at once in black-and-white terms."

Lord Cooke dismissed the notion of holding a referendum to determine the Supreme Court issue.

"I think the subject is far too complicated for a referendum," he said.

"I tremble at the thought of how one might try to educate the electorate in the issues involved.

"Parliament has to take the responsibility for change, as it has always done with matters of court structure."

Lord Cooke

Lord Cooke of Thorndon is considered New Zealand's leading modern jurist.

A Privy Councillor from 1977 to 2001, Sir Robin Cooke was president of the Court of Appeal until 1996, when he became a peer and a law lord in London.