NZ urged to give treaty certainty in law

(In the New Zealand Herald)

By AUDREY YOUNG

The place of the Treaty of Waitangi should be given more certainty under New Zealand law, a visiting member of the Privy Council, Lord Steyn, said yesterday.

It would require only 10 words to state that the treaty was of a constitutional nature, he told a seminar at Victoria University Law School.

It might be included in the preamble to the appeal legislation establishing the proposed Supreme Court, rather than the Privy Council, as the final appeal court.

Lord Steyn said the treaty was repeatedly referred to in laws.

This year's speech from the throne, written by the Government, had contained the statement: "The basis of constitutional Government in this country is to be found in its founding document, the Treaty of Waitangi. My Government values and remains committed to strengthening its relationship with tangata whenua. That means fulfilling its obligations as a treaty partner to support self-determination for whanau, hapu and iwi."

He said a Privy Council case had referred to the treaty as ‘being of the greatest constitutional importance to New Zealand, yet subsequent decisions of the Court of Appeal had lead to uncertainty about that.’

"Isn't it fair to a minority to clear up the uncertainty?"

What was required was political will, Lord Steyn said.

Without a statutory reference to the constitutional nature of the treaty, there was a risk of its "implied repeal" by Parliament.

It would be possible for Parliament to pass legislation which, on the face of it, might not say it eroded treaty rights, but nonetheless did.

"If there is contained in the Treaty of Waitangi rights, those rights must be protected by appropriate remedies."

Lord Steyn also argued that the proposed New Zealand Supreme Court should include judges from overseas, contrary to the advisory committee recommendation on a replacement for the Privy Council.

Former Attorney-General Paul East, QC, who was at the seminar, disagreed with the inclusion of overseas judges, saying it could be seen as New Zealand lacking the confidence to run its own appeal court.

"There is no place for a half-way house," he said.

Lord Steyn argued that the Supreme Court should limit its appeals to cases of great public importance and matters of law. But it should not accept cases over matters of fact as then it would merely be replicating the Court of Appeal.

"There is a risk your Supreme Court would not have as high a standing as it should," he said.

Lord Steyn is in New Zealand to deliver the Cooke lecture, named after former Court of Appeal president Lord Cooke of Thorndon, who sits on the Privy Council.

Act MP and former lawyer Stephen Franks attended one of Lord Steyn's seminars last week.

He said he saw no problem with the actual articles of the treaty being included in constitutional legislation because they embodied "a classical 19th-century view of property right, the rule of law, and equality before the law".

But a reference to "the principles of the treaty" would be dire because no one knew what they meant.

"It would simply mean that the courts would become embroiled in what should really be political battles."

Mr Franks said it was refreshing to have a member of the Privy Council giving his views on the treaty.

"It has been going on covertly here. Lord Cooke's judgments are political and I think the [Court of Appeal] judges since Lord Cooke would dearly like to withdraw from some of it - like the partnership analogy.

"Partnership is just a nonsense in constitutional terms ... It is a useful term to convey the flavour of mutual respect and assistance, but to turn it into law is just nonsense."

Institutions all over the country referred to "the treaty partnership" in their goals and objectives and "no one has the faintest idea what it means".