Design principles for constitutional hijack – or how we got those Treaty principles in the first place

The ‘principles of the Treaty of Waitangi/te Tiriti o Waitangi’ have arrived on the political stage. A smallish political party has got a bill before parliament in an attempt to define the principles. Opponents pushed back with street protests, mostly hostile media coverage and parliamentary theatre. The message from opponents is loud and clear: the Treaty principles are untouchable by ordinary citizens.

They’ve been hanging around for a while, those principles. A mention in an 1975 Act passed mostly unnoticed, but a low profile reference in a 1986 law on state-owned enterprises proved consequential. That mention paved the way for a landmark court decision in 1987. Since then the courts and the Waitangi Tribunal have been interpreting references to the ‘principles of the Treaty’ now scattered plentifully across legislation. In doing so, they have been changing New Zealand’s constitutional order.

Parliament has never defined these principles.  The principles are also not fixed. So somebody has to continually interpret them. That somebody turns out to be judges and appointed members of the Waitangi Tribunal. As noted in a government-issued guide that the Waitangi Tribunal references on its website:

 ‘The Courts and Tribunal have emphasized that the principles of the Treaty are not set in stone and that they may change as the Treaty partnership evolves. Accordingly, they have not developed an exhaustive list of principles and continue to refine their explanations in response to new circumstances.’

The principles now affect almost all areas of law and public policy. Few of us are untouched, with the principles regularly cited to justify public policy decisions on everything from health and education to conservation and urban planning. It is now common to hear legal professionals refer to the Treaty and its principles as forming part of New Zealand’s constitution. Indeed a group of King’s Counsel, in marking their objections to the Treaty principles bill, also appeared ‘to be questioning the constitutional right of Parliament to legislate in these circumstances.’ Judges and other public sector decisionmakers defer to these principles as if they do have constitutional status.

A constitutional revolution

This makes for a de facto constitutional revolution. One of the country’s foremost Treaty scholars, Claudia Orange, has referred to the change in the status of the Treaty as revolutionary.

Most attempted revolutions fail, so it is interesting to figure out why this one succeeded. The ‘principles Treaty’ bears little relationship to the actual historical Treaty. The courts have explicitly rejected the possibility of an ‘originalist’ interpretation of the Treaty.

So how did the constitutional hijack happen? After all, New Zealand is a democracy in which parliament has traditionally been regarded as sovereign. Did the legislature vote to curb its own powers? Sort of. The constitutional hijack required parliamentary complicity.

Palmer’s plan to clip parliament’s wings

The story starts with a politician-cum-legal scholar who, way back in 1979, decried the ‘unbridled power’ of the New Zealand parliament. That man, Geoffrey Palmer, got himself elected to parliament and attempted to legislate for constitutional change that would clip parliament’s wings and entrench the Treaty of Waitangi. It appeared initially that he failed: over two years, public submissions were largely opposed. The resulting Constitution Act of 1986 did not mention the Treaty of Waitangi (except in a parenthetical schedular amendment to the Treaty of Waitangi Act 1975), let alone elevate it to constitutional status. New Zealanders were very explicitly not prepared to go along with Palmer’s ambitions.

But Palmer was not deterred. What he could not achieve openly, he set about bringing about by stealth. His plan was to litter legislation with innocuous-sounding references to undefined ‘principles’ and ‘procedures’; things so devoid of substance that most parliamentarians would not bother to oppose them. He counted on the courts to then give teeth to the new order over time.

We know this was a deliberate plan because Palmer himself tells us about it. In 1992, soon after retiring from politics and returning to educating law students (and many of the current generation of judges), he published New Zealand’s Constitution in Crisis. There, on page 76, he writes:

‘The logic of the approach was as follows… Some parliamentary action by way of legislation was needed to make a base. But if that legislation itself redressed the grievances it would run into the problem that the majority of the community would oppose it. If, on the other hand, legislation was used to set up processes, and procedures and the principles on which decisions should be based were stated, it may be possible to get even a majoritarian legislature to act. The initial commitment required was to a process. No tangible outcome was provided by the legislation itself. What should be done was to be decided only after judicial or quasi-judicial processes had assessed individual cases. First it was necessary to give the courts something to interpret. Such was the nature of the approach I brought to both statutory incorporation of the Treaty in statutes, and extension of the Waitangi Tribunal to examine grievances back to 1840.’

The intent to sideline parliament is explicit:

The hijack appeared to work precisely as planned over the following decades. Whether it can continue to work is another matter.

The architects of New Zealand’s Treaty principles bill, whether they are aware of it or not, are part of a broader pushback against perceived excesses of judicial power in many countries. The ‘judicialization of politics’ has been underway for more than thirty years, moving decision-making away from arenas subject to democratic control and accountability to tribunals, courts and quasi-judicial panels of experts. A backlash now looms in many places.

The Treaty principles bill will no doubt fail to clear its second and third readings. But the attempt at clawing back parliamentary control has already made a difference. No one can now say with any credibility that the Treaty principles are ‘not political.’