The Waitangi Tribunal has already found it breached the Treaty of Waitangi in multiple ways.
Declarations of inconsistency with the Bill of Rights Act are now an established part of the law, although such declarations don’t force Parliament to do anything about an inconsistency.
But such an application to the courts for a declaration of inconsistency on the Treaty of Waitangi is unprecedented.
The claimants say there is a large body of case law by the courts on statutory interpretation of the Treaty. The next “frontier” for consideration was whether it gives rise to rights that were enforceable by the courts.
The Crown argues that any such major constitutional change should come from Parliament, not arise from the courts.
Parliament has deemed the Waitangi Tribunal to be the arbiter of breaches to the Treaty of Waitangi, albeit with very limited powers beyond making non-binding recommendations.
Daniel Perkins, for the Crown, said in submissions that the Waitangi Tribunal was the forum with general jurisdiction to determine the consistency of legislation and Crown policies, practices, acts or omissions against the principles of the Treaty.
“If the courts were to develop their own parallel declaratory jurisdiction sourced in the Treaty, this would risk upsetting our constitutional balance…”
“It raises the question that if these issues are cognisable in the courts, what is the utility of retaining the Tribunal?” according to Perkins’ submission.
“Diverting claims to the courts also risks judicialisation of the Treaty, to the exclusion of other modes of considering its meaning and application to historical and contemporary New Zealand. It assumes the Treaty and its principles are akin to hard-edged rights capable of judicial enforcement…
“It is far from clear the court could replicate (or improve upon) the Tribunal’s role, and the way it performs it.”
Justice Boldt yesterday, during discussion with counsel, described the Waitangi Tribunal as “a specialist body far better equipped in many respects to adjudicate upon these matters than the courts of general jurisdiction with expertise, mana, with an entirely Māori-focused lens to which they bring to these questions and which…is actually the Rolls Royce option in terms of the determination of breaches in these circumstances”.
The judge continued: “It is not as though [the tribunal] is an unsatisfactory forum. It is 50 years old now. It has made this immense contribution to New Zealand’s constitutional framework. The regard in which it is held by the general courts, by the senior courts, has never been higher.”
The flattery makes a change from some of the criticism that has been directed at the tribunal from the parliamentary precinct just across the road from the High Court.
For much of this term, the tribunal’s work has proceeded under either criticism by parties of Government (particularly from NZ First’s Shane Jones and Act’s David Seymour) or under the shadow of a review, now underway, and how far the tribunal would be reined in.
While many of its reports are full of detailed evidence, it is very rare for it not to uphold a breach of the Treaty and, unsurprisingly, it has done so in regard to many of the current Government’s policies enacted with little or no consultation with Māori, including the abolition of Te Aka Whai Ora.
The case is being brought by Te Kōhao Health (Lady Turei Moxon), Te Puna Ora (Dr Chris Tooley), Papakura Marae, and Ngāti Hine Health Trust. They are represented by Dr Andrew Butler, KC, and Horiana Irwin-Easthope.
They say that in abolishing Te Aka Wahi Ora, the Government failed to uphold the Treaty principles of partnership, active protection and equity.
“The Waitangi Tribunal can only make recommendations,” said Tooley. “It is up to the Crown to decide whether to act on them. That’s why this case is so important. The courts don’t just interpret the law; they shape how it is applied.
“By recognising Te Tiriti o Waitangi and the human rights of Māori, this case has the potential to broaden its interpretation, giving it greater depth and influence in Aotearoa’s legal framework.”
At the heart of the applicants’ case is the big legal question of whether the Treaty of Waitangi and its principles give rise to rights and obligations that are enforceable by the courts.
The Crown says no, unless it is spelled out in law, in accordance with a 1941 ruling by the Privy Council known as the Te Heuheu case and which has reinforced the concept of parliamentary supremacy, including in the landmark Lands case of 1987.
The applicants say that the Treaty cannot be seen as it was in 1941, as an international Treaty of cession, and that it has become such an important part of New Zealand’s constitutional framework, it can and should give rise to rights and obligations that are both justiciable and enforceable in New Zealand courts.
Butler said that a declaration of inconsistency with the Treaty of Waitangi would not threaten legislative supremacy, similar to the situation with declarations of inconsistency with the Bill of Rights Act.
“Under our constitutional system, we recognise ultimately legislative supremacy and so orders of the court that would prevent the expression of that legislative supremacy cannot be put in place by the court.
“But that would not inhibit the court from saying or declaring that how things were done were, for example, a breach of the Bill of Rights and/or we say a breach of Te Tiriti.”
What has not been covered in any detail by the parties is where such an expansion of Treaty jurisprudence would lead to.
Principally, that is because at this stage it would be crystal-ball gazing. But it could also be assumed that the law would continue to develop, as it has with the Bill of Rights Act, in which, for example, compensation for severe breaches are now contemplated by the courts.
With the Treaty and tikanga being a more prevalent feature of New Zealand public law, it is likely to develop quickly.
The Government expressed concern in its submission on how such proposed standalone declaratory remedies could impact likely Treaty settlement legislation.
“Such enactments represent choices (resulting from negotiations) about how Maori (and often Treaty) interests are to be balanced. They have been enacted against an assumption that Treaty grievances are resolved in political (not judicial) fora.
“However, if the courts were to develop a free-standing declaratory remedy sourced in the Treaty, this would disrupt established patterns of political compact-making. It also risks courts being invited to pronounce on the choices reflected in these political settlements.”
The case is likely to continue for the next two days.
