Ambiguities and the Treaty of Waitangi

03:33, Jul 12 2010
PUBLIC SPACE: Last month the Foreshore and Seabed Act was repealed.

Are the right questions being asked, or are our debates about the Treaty of Waitangi blowing the chance of becoming good neighbours, writes RICHARD DAWSON.

Talk about the Treaty of Waitangi, including the foreshore debate, will fail to become a constructive dialogue unless we make some vital distinctions and then ask some basic constitutional questions.

The best place to start is perhaps the court case regarding Ninety Mile Beach (1963).

The Court of Appeal ruled that the Maori Land Court did not have jurisdiction to investigate a claim by the Te Aupouri and Te Rarawa tribes relating to the title of Ninety Mile Beach.

In coming to the result, Justice North remarked: "It is pertinent to observe that at this late period in the development of New Zealand, [the claim], if well founded, would have startling and inconvenient results."

One result would be: "The owner of property the title to which showed the ocean as a boundary might be faced with the contention that although his title ran to the line of the high-water mark at ordinary tides, he had no legal right of access to the sea." Startling and inconvenient indeed! However, not all would be lost if the property owner had no legal right of access. In having to negotiate for the acquisition of a right, the owner would have the opportunity to become a good neighbour to the tribes.


To this end, the tribes with whom she or he has to negotiate should not be imagined as an inconvenience.

It is pertinent to observe that Justice North failed to identify any inconvenience for the tribes, who were experiencing the dissolution of traditions that sustained a way of life.

The lack of judicial attention here can be taken as evidence of bias. A higher degree of impartiality would have led Justice North to notice how inconvenient it was for the tribes not to be registered as a party to negotiate with regarding access. In a word, the decision in the Ninety Mile Beach was Eurocentric, not material for constituting good neighbours.

This case was not the first to be Eurocentric. We in New Zealand, like many countries throughout the world, have inherited systematic bias in the law relating to indigenes.

In an opinion piece (Perspective, April 23), David Round calls the 2003 Ngati Apa decision, which overturned Ninety Mile Beach, "a disgraceful and blatantly political judgment".

Round might have done well to direct those words to the earlier decision. Is Round Eurocentric and disinterested in trying to become a good neighbour?

It is common to use the adjectives "correct" and "right" for talking about judicial decisions. These words can contribute to the false image that legal reasoning is like mathematics.

Legal reasoning involves complex value judgments relating to unavoidable cultural prejudices. As such, the simple application of "correct" and "right", or their companions "incorrect" and "wrong", does not do justice to the complexity of what is involved in a legal case.

Round's simple use of "correct" for talking about the Ninety Mile Beach decision can only serve to create misunderstanding.

In his opinion piece (Perspective, May 12) refuting Round, the Attorney-General and Minister for Treaty of Waitangi Negotiations Chris Finlayson might have done well to say more about the sense in which the case was "wrongly decided".

Neither Round nor Finlayson direct attention to the deep cultural tensions involved in the case, tensions which are at the heart of the foreshore and seabed debate today.

Finlayson expresses alarm about "the version of the rule of law [Round] teaches to his students". The alarm raises this question: which version is to be taught? There are many versions.

The eminent lawyer David Dyzenhaus, in Judging the Judges, Judging Ourselves (1998), lambasted the South African apartheid judiciary for not "politically" checking the sovereignty of parliament so as to uphold the rule of law. A valuable lesson could be in this for New Zealand, a lesson that Round could teach his law students.

What might Finlayson say to the same students? What might Round and Finlayson say to a student who asked about the meaning of the Parliamentary Sovereignty clause of the Supreme Court Act 2003 ("Nothing in this act affects New Zealand's continuing commitment to the rule of law and the sovereignty of Parliament")? Is it possible for "the rule of law" and "the sovereignty of Parliament" to be good neighbours?

"Undefined words," says Round, "are a blank cheque for whoever interprets them."

Let us question not the aptness of Round's metaphor but his selective use of it. Putting aside the example of the Supreme Court Act, why does he not point to the word "sovereignty" as used in the Treaty of Waitangi, which contains neither a definition nor a clause about who should interpret it if there is a dispute about its meaning?

If he did so, Round's attention might get caught up in asking questions about the politico-legal process by which indigenes have been excluded from formally participating in the meaning of the Treaty to count as law. There is a long and troublesome history here, "inconvenient" for some. This history connects to the deep cultural tensions mentioned above. From the early 1840s through to the 1860s, there were many occasions when chiefs resisted efforts by officials representing the Queen to acquire tribal land for European settlers.

At the time of war in the 1860s, the Maori Land Court was established, a court that undermined the power of the chiefs to control tribal land. Judges were given the formidable power to determine which Maori had what right to alienate a certain block of land.

From the standpoint of the chiefs, the court was fittingly called Te Kooti tango whenua, - the land-taking court. When a great deal of tribal land in this country had been taken through the Maori Land Court, the Te Aupouri and Te Rarawa tribes came up with the startling idea of approaching the court for the purpose of trying to secure parts of their sandy land. The Crown objected, and went to the Court of Appeal in order to prevent any inconvenience.

For the Crown, good fences here would not make good neighbours. The Crown, we can be sure, did not stop to ask whether the tribes did in fact intend to put up fences. In failing to ask, the Crown lost an opportunity to become a good neighbour.

"For many years," Round tells his reader, "it was absolutely clear that the Crown, and therefore all of us, owned the foreshore and seabed." Who are "all of us"? The identity of Round's kingly "us" is far from being absolutely clear. Are Maori a part of the Crown? Well, yes and no. Much ink and toner has been used to try to pin down the identity of the Crown, and Round would do well to expand on his brief translation so as to direct attention to complexity. That way, we can avoid any unnecessary talking past each other.

Round should listen to his own warning: "Undefined words are a blank cheque for whoever interprets them". Does Round see the speck in his neighbour's eye, but does not notice the log in his own eye?

The indigenes, to repeat, have long been excluded from participating in the process of working out the meaning of the Treaty to count in law. Round is blind to this exclusion. Finlayson is making some amends. Whether he is going far enough, and becoming a good neighbour, is another story. Any student or citizen genuinely interested in working out what might be required for the Treaty partners to become good neighbours should read Matthew Palmer's The Treaty of Waitangi in New Zealand's Law and Constitution (2008).

Here is a suggestive remark from the book (322-23): "We must become more comfortable with ambiguity in relation to the Treaty of Waitangi. The inherent uncertainty of the specific meanings of the Treaty in application to particular issues requires it."

Imagine the possible constitutional consequences of becoming more comfortable with ambiguity. We might let go of the conversation-stopping question of whether the indigenes ceded sovereignty. Instead, we might embrace a conversation starting with the question about how we might imagine that which the "S" word is supposed to point.

Alternatively, what is the "O" word (ownership) supposed to point to in talk about who owns the foreshore?

The conversation partners can then begin to exercise their imaginations together, with the hope of creating a common sense. In becoming more comfortable with ambiguity we will be better equipped to become good neighbours.

The Press