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In a recent opinion piece, Time for new interpretation of Treaty, Prof Elizabeth Rata expressed her concerns at the growth of what she terms "ethno-nationalism" and the role that the concept of a "Treaty partnership" has played in this development.
She does so by telling a story about how this idea of a Treaty partnership has been smuggled into New Zealand’s laws via legislative recognition of "the principles of the Treaty". In her own words: "The question of how we have arrived at a crossroads where New Zealanders will have to choose between an ethno-nationalist state... or a democratic-nationalist one has its origins in three events in 1985, 1986 and 1987."
The three events Rata cites are the passage of the Treaty of Waitangi Amendment Act 1985, the enactment of the State Owned Enterprises Act 1986, and the Court of Appeal’s decision in the Lands case. Given how important Rata said these events are to her wider argument, it seems fair to scrutinise her account of them. This is not mere academic point-scoring; it is taking the author at her own word and treating these events with the seriousness she says they deserve. Unfortunately, once we do so, it appears that Rata has been somewhat careless in how she has researched and written about them.
Let us begin with the first event in Rata’s chronology. Rata claims that "While the 1975 Treaty of Waitangi Act was about the settlement of historical grievances, the 1985 Amendment Act was a very different matter." This account gets matters completely around the wrong way. The original 1975 legislation only permitted complaints to the Waitangi Tribunal about contemporary breaches of the "principles of the Treaty" by the Crown (i.e. breaches that occurred after 1975). The 1985 amendment legislation then permitted complaints about such breaches going back to 1840.
I need to be very clear here. Rata isn’t just a little bit wrong on this point; her account completely inverts what these statutes actually said and did. As such, if this legislative development really matters as much as Rata says it does, any conclusions she draws from her version of its enactment must be viewed with a measure of scepticism.
This wrongness then spills over into Rata’s discussion of the next event in her timeline. She states that the State Owned Enterprises Act 1986 represents "the first reference in legislation or policy to the principles of the Treaty — indeed, the first indication that the Treaty has principles."
However, when the SOE legislation was enacted the phrase "the principles of the Treaty" had been used in the Treaty of Waitangi Act 1975 for more than a decade. That phrase had been considered and applied by the Waitangi Tribunal in eight Waitangi Tribunal reports. So much for Treaty principles being an entirely new and unheralded concept when Parliament came to enact the SOE legislation.
Further errors then abound. Rata states that in the wake of this 1986 precedent, "Treaty principles, including that of partnership, now appear in almost all legislation."
The phrase "principles of the Treaty" actually appears in 44 current parliamentary enactments. There are more than 1800 such enactments on our statute books. Not even the most charitable interpretation of "almost all" can make her claim remotely true.
Let us then move on to the third event in Rata’s origin story. Rata says that the concept of a Treaty "partnership was quickly picked up by the Waitangi Tribunal" following the Court of Appeal’s seminal decision in the Lands Case in 1987. And it is true that once the Court of Appeal determined what the phrase "the principles of the Treaty" means as a matter of law — as it does when interpreting any statutory language — the Tribunal was bound to apply that interpretation in its future work. That is just how law works. However, Rata’s account neglects the Tribunal’s own decade-long development of this concept prior to the Court of Appeal considering the matter.
To take but one example, here is what the Waitangi Tribunal had to say about the "the principles of the Treaty" in 1986, a year before the Court of Appeal handed down its decision: "We have considered this aspect of the case having regard to the particular words in the Treaty, but in so doing we have not been unmindful of the broader social purpose of the contract without which no discussion of the Treaty can be complete. In that broader perspective, as we have said in earlier findings, the Treaty was directed to ensuring a place for two peoples in this country. We question whether the principles and broad objectives of the Treaty can ever be achieved if there is not a recognised place for the language of one of the partners to the Treaty."
Indeed, the Court of Appeal itself expressly acknowledged its intellectual debt to the Tribunal when attributing legal meaning to the phrase. Here’s Cooke P from the Lands Case: "Section 9 of the 1986 Act requires the Court to interpret the phrase ‘the principles of the Treaty of Waitangi’ when necessary. In doing so we should give much weight to the opinions of the Waitangi Tribunal expressed in reports under the Treaty of Waitangi Act 1975." As such, Rata’s account badly misrepresents the complex interaction between the Tribunal and the courts in this area.
In short, Rata gets wrong the legislation she says began this historical narrative, gets wrong subsequent legislative developments, and gets wrong the genesis and effect of the Court of Appeal’s interpretation of Treaty principles in its Lands Case decision. And she doesn’t get these points wrong as a matter of interpretation or opinion; rather, she gets them wrong as verifiable matters of fact. That is, to put it bluntly, pretty poor scholarship for someone purporting to set out an academically credible account of how a particular concept came to be a part of our legal and constitutional framework.
Of course, none of this addresses Rata’s overall claims about the current dangers of "ethno-nationalism" and scepticism about the concept of any Treaty partnership. She’s entitled to her opinion on these matters. No doubt her academic work in the field of education gives her some insight into them. But insofar as she bases those views on factual claims about our laws and how these came into being — which, remember, she herself says is the case — then her misunderstandings of these matters provide good reason for us to consider just how much attention her views deserve.
- Andrew Geddis is a professor in the Faculty of Law at the University of Otago.