Law & society: In 1986, the State-Owned Enterprises Act included a clause: “Nothing in this Act shall permit the crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”.
But it was not the first piece of legislation to make reference to these “principles”. The Treaty of Waitangi Act 1975 set up a tribunal to make recommendations on claims relating to the practical application of the principles of the treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles.
The legislation of 1975 and 1986 and subsequent laws that use the “principles of the treaty” mantra do not refer to the “terms” or “provisions” of the treaty but to its “principles”.
At no time was it considered necessary to define these principles. These, no doubt, were to be discovered.
Or was the assumption that there were principles to begin with that would spring like Athena fully formed from the head of Zeus?
In a sense, this recognises that events – historical, social and demographic, to mention but a few – had overtaken the precise wording of the treaty, which was an artefact.
It was by way of the principles that new life would be breathed into the treaty but those principles would be guidelines only and they would be identified and articulated by the courts.
As things stand, this has not taken place. The treaty has provided a foundation for a number of developments in the law, most recently with the development of tikanga as an element of the common law. The principles of the treaty are undefined, and unarticulated. The certainty and clarity that are essential elements of law are not present.
So, if the principles of the treaty are not defined and are not clear, what is the problem with Act’s proposal to have them clearly articulated after a lengthy consultative process?
In what seems to be the practice these days, an application has been made to the Waitangi Tribunal to rule on the validity of Act’s proposals, although, unlike Athena, these proposals have not yet achieved full form.
The irony behind the application is that the undefined principles of the treaty underpin the jurisdiction of, and raison d’être for, the tribunal, which does not seem to have defined them.
Some suggest that there are, in fact, no underlying principles of the treaty, which merely comprises three articles that had relevance in 1840. Perhaps the references to the principles in the treaty in modern legislation were to make it a living, adaptable, forward-looking document.
The problem is that the treaty itself seems to act as an anchor against progress and against forward movement. Its use and interpretation seem to employ a rear-view mirror by which the path to the future may be viewed.
But if we are to be cognisant of the principles of the treaty, we need to determine exactly what they are.
David Seymour has made a start and his principles so far seem to be the basic building blocks of a liberal democracy.
Perhaps there should be a recognition of minority rights to avoid tyranny of the majority. But if we look at Seymour’s principles as stated, they would probably be recognised by John Locke, Thomas Jefferson, Edmund Burke and John Stuart Mill. They are fairly universal propositions for a democratic state. They encapsulate the rule of law, property rights and equality of treatment.
However, the final determination of what the principles are should be left to the people who will have to live under them rather than be a decision for an unelected and largely unaccountable judicial priesthood.
David Harvey is a retired district court judge.
