Victoria University of Wellington professor of law Dean Knight. Photo: RNZ / Samuel Rillstone
The government's lawyers have advised the Treaty Principles Bill is consistent with the Bill of Rights Act - but only because they expect courts would not allow it to override that law or the Treaty itself.
The Treaty Principles Bill was introduced last week, a filing of paperwork at Parliament which typically comes with various advice including analysis from Crown Law - the government's lawyers - on whether the relevant legislation is in keeping with New Zealand's Bill of Rights Act 1990 (NZBORA).
"On a broad reading of the second principle in s6 of the [Treaty Principles] Bill it appears intended to require that the rights of Māori under the Treaty cannot be asserted unless they are co-extensive with rights that would be recognised for all persons (unless it is for the purpose of resolving a historical claim)," the Crown Law advice said.
"We doubt that a court would be inclined to give the principles that broad reading, given that the purpose of Article II [of the Treaty] was to affirm and preserve rights that only Māori had. The court would not accept, in the absence of unmistakeably clear language, that the purpose of this bill was to excuse the Crown from the obligation to act in good faith in respect of Article II."
They also indicated courts would be unlikely to allow the Treaty Principles Bill to be used to unreasonably limit the Section 19 and 20 BORA rights to culture or the right to be free from discrimination.
"We are unable to imagine circumstances in which the court would be obliged to reach a conclusion that ... legislation that refers to the principles of the Treaty of Waitangi, read along with this [Treaty Principles] Bill, was intended to be inconsistent with these guaranteed minority rights. For that reason, we advise that the bill itself appears consistent with the NZBORA."
Victoria University of Wellington professor of law Dean Knight said the advice was "quite damning and suggests that if enacted, the bill would probably be constitutionally ineffective".
"It's the government's own lawyers recognise that the bill would at first blush undermine Māori people's rights to culture and freedom from discrimination. However, it effectively says that the violation of these important rights in Te Tiriti itself are so serious that they expect the courts would be under a duty to read the Bill in a way that preserves those rights and original Treaty obligations.
"In other words, the bill is so ugly and misconceived that it won't work and the courts won't let fictional meanings be given to fundamental instruments like Te Tiriti o Waitangi."
He said the constitutional context was very unusual because Parliament was "effectively trying to legislate a legal fiction".
"If you think about what the principles are, they're merely code for 'practical meaning of Te Tiriti' and if Parliament tries to codify unauthentic meanings as principles the courts will in all likelihood give more direct effect to Te Tiriti itself, which the bill says explicitly will continue to stand unchanged.
"That's what the government's lawyers are saying here is that the bill's internally inconsistent and not clear enough to trump the original, the source, meaning of Te Tiriti."
David Seymour. Photo: RNZ / Samuel Rillstone
He said it was entirely constitutionally proper for the courts to do that, "as our legal traditions and arrangements have always recognised that the courts have the ultimate role of elaborating meaning, especially interpreting such fundamental legal instruments as Te Tiriti".
"I think it's just a fair analysis of where the courts are at, at the moment - and that they're especially vigilant to Parliament to say 'if your intention is to undermine these rights, you've got to put it especially plainly and take the political heat for that and not leave any wiggle room'. And what the Crown Law advice is saying here is that there is plenty of wiggle room left by this legislation."
Seymour disagreed with the advice.
"It's a very unusual opinion, I have to say. It makes the point to me that people's rights in New Zealand are upheld by the Bill of Rights. No group, including Māori, need depend on the Treaty of Waitangi to uphold their rights under the Bill of Rights - and if it did, that would suggest that non-Māori actually had fewer rights available to them than Māori."
He said the suggestion that the courts would be forced to interpret the bill in a way that would give a more direct effect to the Treaty itself did not make sense.
"What you're saying doesn't make sense, but I think what they're trying to say is that the courts would be under a duty to read down the bill because they were concerned that would undermine the Treaty, to interpret it the way that it's written.
"What they say is that they doubt that the courts would allow the Treaty Principles Bill to change their view of the Treaty of Waitangi. I'm not so sure that's true, because the bill is about the principles and if the courts are doing their job then they certainly should take what Parliament says seriously, particularly in the case of a bill that was decided by a referendum."
He said Dr Knight and Crown Law were entitled to their opinions, but they were "effectively saying they assume that the courts will ignore a parliamentary law.
"But there's an active debate about whether the role of the courts is to interpret Parliament's intent or to try and make law in their own right. This is a debate that happens around the world."
When Crown Law's advice - that the courts would be very unlikely to conclude laws referring to the principles were "intended to be inconsistent with these guaranteed minority rights" was put to Seymour, he said it would be a "very strange reading" of the Human Rights Act 1993, which the Bill of Rights Act refers to.
"You're claiming that something that promises non-discrimination is actually a promise of a positive right ... I'm telling you I disagree with it."
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