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.’

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The first question in politics is “who rules?” It’s at the forefront of the debate about David Seymour’s Treaty Principles bill, which holds that the Government has the ultimate right to govern and Parliament has the full power to make laws. Te Pati Māori argues that Māori never ceded sovereignty and should hold governing power over themselves. 

But there’s another power struggle taking place in the background of this debate: a quiet but profound contest between Parliament and the courts over the power to make laws. In the week that Seymour’s bill passed its first reading, an open letter from forty-two members of the King’s Council called on the Prime Minister and the Attorney General to abandon the legislation, and it contained the aside “even if Parliament can legislate in this way (which is uncertain)…”

Crown Law’s advice on the bill struck a similar note, advising that if Act’s proposed principles became law after a public referendum, the courts would likely ignore them.

The Rise of judicial activism

New Zealand’s political system is based on the Westminster model. Parliament is supreme, and its laws cannot be challenged by the judiciary, whose role is to interpret them. This is very different from the US model of government, in which the Supreme Court can invalidate laws and executive actions that it finds to be in breach of the constitution.

Former Prime Minister Sir Geoffrey Palmer has long argued that New Zealand should move closer to the US model. In this model, New Zealand adopts a written, codified constitution that defines fundamental rights and freedoms and empowers the judiciary to invalidate legislation in conflict with the constitutional framework.

There has never been much political appetite for Palmer’s reforms. Still, some legal commentators argue that the courts have quietly moved towards this model, adopting the principles of the Treaty – which are undefined in law – as a de facto constitution. 

Lawyer and political commentator Liam Hehir has written a background piece on this topic. He identifies the eminent judge and legal scholar Lord Cooke of Thorndon as the patron saint of New Zealand’s judicial activism, citing his judgement in a case known as Taylor v New Zealand Poultry Board in which Cooke decided that some common law rights are so fundamental Parliament cannot abridge them.

Hehir writes: “And so a case about illegal egg sales ended up as an important inflection point for future questions about who governs New Zealand… Over time, Cooke’s philosophy has gained traction within New Zealand’s legal community. His influential stance has fostered a subtle yet persistent view that the courts, not Parliament, should have the final say on fundamental rights and principles. This has led to a culture within the legal profession that, consciously or unconsciously, questions Parliament’s authority, promoting a quasi-constitutional role for the judiciary.”

Who makes the law? Reining in the Supreme Court

The issue has also been taken up by Roger Partridge, chair of the New Zealand Institute who recently published a report titled “Who makes the law? Reining in the Supreme Court.” In a recent Herald column Partridge notes recent comments by Chief Justice Dame Helen Winkelmann that the courts are “where the decisions in society that can’t be worked out in other ways are taken,” because judges “take the hard decisions in society.” 

He cites the 2022 Peter Ellis case, in which the court cited Tikanga Māori as being applicable in its decision as a form of common law, finding it to be “the first law of New Zealand and not secondary to the colonial common law”, despite it having no apparent relevance to Ellis or his case.

Partridge writes: “The Court bypassed ongoing work by the Law Commission on this very issue and overturned established rules for recognising tikanga as law. It did this without providing a clear new framework. The result is a quagmire. Neither judges nor lawyers now know when or how tikanga should be considered in future cases. The Ellis decision reveals a court more captivated by the allure of making grand symbolic gestures than concerned with the careful, methodical development of the law. Such judicial activism creates precisely the sort of uncertainty and confusion that proper legal development should avoid.” 

Geoffrey Palmer has persuasively argued that New Zealand’s Executive branch is too powerful, leading to poor-quality legislation and poor governance. Successful democracies have checks and balances that constrain the branches of government.

It’s possible that Palmer’s proposals would be beneficial to New Zealand, although progressives looking at this form of government to advance their politics should consider the current state of the US Supreme Court. But, as Partridge points out, the current judiciary has no democratic mandate to take on a political role. Nobody voted for them. And the Treaty is not a constitution.

Hehir notes in this regard, “If the Treaty of Waitangi is law, it bears many of the hallmarks of the worst law making. It is sweeping, vague and open to extensive interpretation, which can lead to inconsistent application and unpredictable judicial outcomes.”

He warns, “Such a system would paralyze decision-making, forcing policy into a state of perpetual review, litigation and delay. We have had a foretaste of this following the election of the current government, where it feels like almost every initiative has been called a Treaty breach, regardless of campaign promises.” 

How a Constitutional crisis plays out

What would happen if a New Zealand court directly refused to implement a law passed by Parliament? This would undoubtedly provoke a constitutional crisis.

Parliament has the right to remove judges for misbehaviour or incapacity, but it is a lengthy process. Although judges in New Zealand have resigned, none have ever been removed.

We’re more likely to see the courts continue to offer expansive interpretations of laws that alter their effect rather than refuse them. The likely consequence of this will be the politicisation of the judiciary, which will also bring us closer to the US model.

In Westminster systems, the courts are supposed to act as apolitical arbiters of existing laws. However, if the courts themselves insist on functioning as political actors, politicians will respond by appointing judges who advance their policies and values. Even though it will not pass, David Seymour’s Treaty Principles Bill has highlighted a profound tension at the heart of our democracy. 

Dr Bryce Edwards

Political Analyst in Residence, Director of the Democracy Project, Victoria University of Wellington

Note to Media: This analysis can be published by any media outlets for free under a Creative Commons copyright-free license. Attributions should include a link to the Substack page.

Key Sources

David Harvey (Listener): Law & society: Should our Supreme Court address societal issues where Parliament has failed to do so? (paywalled)

Liam Hehir (Blue Review): KCs and the Courtroom Bands (paywalled)

Roger Partridge (Herald): Attorney-General and Chief Justice reveal contrasting visions of judicial power (paywalled)

Cover image from https://democracyproject.substack.com/p/democracy-briefing-foundations-of

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The result of parliament’s failure is two versions, one of Articles – the ‘Articles Treaty’, the other of Principles – the ‘Principles Treaty’ – and the consequences – a racially divided country and a group asserting co-governance rights.  How did it happen?

The 1840 Articles Treaty has a Preamble and 3 Articles that reflect the ideas, motives, and actions of the time. Similarly the Principles Treaty is of its time and place – the 1980s. The cause of enormous confusion and conflict is because the treaty today has the words of 1840 (whether in Māori or in English) but the meaning is late 20th century ideology.

The meaning of the 1840 Treaty exists in the Articles. Article I recognised British sovereignty. Article II recognised the rights of Māori to hold or dispose of property. Article III recognised Māori as British subjects. In start contrast, the inventors of the Principles Treaty have, after decades of uncertainty, finally settled on the so-called core principles of partnership, active protection, and redress, despite these words not appearing in the Articles.

The word ‘principles’ first appeared in the 1975 Treaty of Waitangi Act. In that legislation, ‘principles’ referred directly to the meaning, value, and purpose of the Articles. The word ‘principles’ was tied to the Articles. It had no referent outside those Articles. It did not state the word ‘partnership’, nor was active protection and redress mentioned or implied.

Three events detached the word ‘principles’ from the Treaty Articles, leading to decades of meaning creation. They are the 1985 Treaty of Amendment Act, the 1987 Court of Appeal’s ‘akin to partnership’ statement, and the insertion of undefined ‘principles’ into legislation from 1986.

The Articles-Principles detachment occurring in these three events was crucial to today’s invented treaty. It enabled the principles to acquire a different meaning, value and purpose – a new referent. To reflect the word’s new power, it was given a capital ‘P’. From that time treaty revisionists of all ethnicities talked excitedly about the ‘Principles’ as though they had always existed. Like sacred text, the meaning was lying in wait in the Treaty runes. It would be revealed by those who now interpret the Word to the World – the lawyers who are the modern secular priesthood.

As the practice of legislative insertion and legal interpretation gained momentum so too did an acceptance of the erroneous belief that the Principles had authority. An authority conundrum was created. It is reasonable to believe that insertion into legislation is the act of authorisation.

After all, members of parliament authorised the insertion. However they failed to define the Principles despite numerous and ongoing insertion. It was left to activist judges, officials and retribalists to take on the monumental task of deciding what the Principles were to mean.

In a democracy, parliamentarians represent us, the people. Yet does this authority have legitimacy when our representatives did not know what the Principles meant when they were inserted into law?

A vacancy of meaning, especially when concealed by righteous language, opens up opportunities for those with vested interests to insert their own meaning.  In inventing and consolidating the Principles, advocates for a kinship-based political structure have used traditional ideology to provide a timeless, spiritually authorised quality to their very time-bound interests. The erroneous partnership Principle is given the greatest weight, opening up a wide backdoor to power. Tribal corporations can now move beyond their economic interests to demand political power – to be entrenched first as co-governance, then as tribal sovereignty.

How do you get people to believe in an invention and then to agree to its consolidation in legislation? Retribalists simply used age-old strategies.

The first strategy laid the groundwork by creating alliances with those in government and the professions, particularly in the judiciary. It didn’t matter if the alignment proved to be incompatible – such as that between a racialised retribalising movement and emancipatory feminism. As a temporary alliance it served its purpose with many feminists proving to be ardent retribalists. Some later retreating in silence, unable to resolve a dilemma created by mistakenly defining equal rights and justice in identity terms. In this way, feminism was ousted by gender identity politics and women’s rights were side-lined.

The second strategy is to ride on the back of current intellectual movements. Using postmodernism’ mystifying and irrational idea that reality only exists in language means that if one say something is the case then it is – especially if it is said in the loud and certain tone of the righteous with prayers adding the gravitas of sacred authority. If it is stated that the Treaty has Principles, then it is for the secular priests to reveal that truth.

This emperor’s new clothes strategy was supported by the righteousness of Cultural Marxism, a thriving ideology in university social science and education faculties and in government departments staffed by those with postmodern degrees. Although the nonsensical conflation of culture and materialism would have Marx turning in his grave, it gives social justice intellectuals a site on the moral highground from where they can do well by doing good.

The third strategy, the language game, rests on this irrational intellectual bedrock.  Controlling the language that can be used when talking about the Treaty ensures that thought itself is restricted in both its expression and, more seriously its very development.  How can alternative ideas be developed if they cannot be spoken?  Even more seriously, once language is couched in moral terms then criticism is excluded.

The rapid inclusion of the word indigenous into New Zealanders’ everyday language from the 1980s shows how effective this method is.  Belief in a treaty partnership requires partners who are to live in a permanent relationship.  Differences are emphasised, sometimes even created, and commonality rejected.

Embedding one of those partners in the status of indigeneity with the other partner an intruder into Arcadia expands the moral distinction into a timeless mythical realm.  Romantic evocations of the evil coloniser and the indigenous colonised provide a more seductive narrative for the nation’s collective memory than the more prosaic fact that, from the thirteen century to the present, all New Zealanders are settlers.

Our history is one of waves of settlers. It is a shared experience that trumps an arbitrary division into the indigenous on the one hand and all other settlers on the other. But language control is most successful when it evokes the sacred. The word indigenous does this with its suggestion of a mythological connection to the land and its creators. Those who resist the language game are accused of refusing not only the word, but the Word as revealed truth. Those who insist that truth lies in reality – that the 1840 Treaty didn’t have Principles and that we are all settlers, no matter the time of arrival, are silenced by accusations of racism. Far better to be silent than to bear the racist taint suggestive of a profoundly immoral character.

It is in the revelation of sacred meaning that the fourth strategy has proved to be most effective. Today’s secular priests – the activist judges, tribalist law professors, and lawyer-politicians – have claimed the authority to interpret the truth from the Treaty runes. They have won the age-old battle between the World and the Word in securing doctrinal supermacy. Made vulnerable by their commitment to the Word and their role as its interpretors to the World, lawyers tend to believe that if it is said, and especially if it is said in legislation, then it must be true. That revealed Word is now the authority.

But tribalist intellectuals, activists and lawyers aside, the group most to blame for the invention of the Principles Treaty are our Members of Parliament. The inclusion into legislation of a statute without legislators knowing what it meant is an unprecedented failure of political representation. Compounding the failure by continuing to insert the Principles does not make up for that failure. Repeating an error does not diminish or remove it, rather the error is consolidated.

The initial authority for inclusion was not given by the people. Until this occurs, or if the people refuse to authorise the inclusion, the Principles do not have the authority claimed for them. They should be removed. In the end, legitimacy is decided by the people if democracy is to work.

Those who have done well out of the invention of Treaty Principles will object to their removal. They will use the loud voices and threatening tactics that have proved so effective and led to widespread entitlement. They will be shameless in calling on the democratic ideals of universal human rights to justify a racialised future.

But an unsettled and messy time is democracy in action. Indeed a degree of conflict is to be expected given the current mess.  But the message for legislators is clear. They act on behalf of the people. They must know what their legislation means before laws are passed. Officials and lawyers then interpret the law. They do not create its meaning in undertaking that interpretation.

It is in discussion with the people that our parliamentary representatives assure themselves and us that they know what they are talking about. The discussion about whether we want Treaty Principles may be four decades late, but it must happen for the sake of New Zealand democracy.

I identify three possible choices. The first is continue with the 1980s’ invented Principles Treaty knowing it justifies co-governance and will lead to the irresolvable conflict between a kinship-based polity and a universal democratic one, one justified in a racial division of people into indigenous and non-indigenous.

The second choice is to value the 1840 Treaty of Waitangi as one of the country’s most significant historical documents, but one with no practical relevance to a modern democracy.

The third choice is similar to the second but treasures the symbolic value of the historical document within the nation’s collective memory. It is to regard the principles (lower case ‘p’) mentioned in the 1975 Treaty of Waitangi Act as referring directly to the Articles but with no meaning or application beyond those Articles.

Democracy is not just arriving at a decision. It is the act of rational communication that enables the decision to be made. For this to happen, language must be pulled apart so that meaning is exposed, and with it, the intentions of the user. There can be no language priesthood, no sacred words, no moral highground.  Those who have controlled treaty language have controlled meaning for too long. It is now time to talk critically about the Treaty.

When Alice told the Mad Hatter that she didn’t think, his reply was – then you shouldn’t talk. But we must talk, the alternative is silence – and anger. So let us follow the March Hare’s advice – say what we mean. Language has three components – words, meaning, and the explicit connection of the word to its meaning.  Ideology intrudes in the vacant space when words are detached from their meaning. That has been the case with Treaty talk since the 1980s.

Let us insist on democracy’s rational communication in all its complexity and disturbing power so that we know what we mean when we speak and we can justify the meaning in explicit argumentative logic. Let us insist that our parliamentary representatives do the same.

(Note: The ideas in this commentary are based on my article: Rata, E. (2004) ‘Marching through the Institutions’: The Neotribal Elite and the Treaty of Waitangi. Published in Sites, New Series, Winter, Volume 1, No. 2 https://sites.otago.ac.nz/Sites)

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The current law does not, however, seek to penalise or restrict all harmful speech. The political mood in some parts of our country seems to regard this as a problem. Local government organizations and universities, for example, have introduced codes of conduct that prohibit speech that causes harm. Sometimes this is qualified as speech that causes harm to vulnerable groups.

Who could object? For those in favour of restrictions on harmful speech, the answer seems to be that only people who actually want to cause harm (or are heedless to the harm they cause) would object. And of course, those would be pretty nasty people, who should face penalties, such as denial of access to public facilities, education or employment. And maybe they should face the sanction of the law too, as implied by the government’s proposal in 2021 to broaden the definition of hate speech. That proposal has now been shelved, but the government is proceeding with plans to regulate online content in the interests of reducing the risk of harm, even though current law already contains provisions against online bullying and dissemination of illegal material such as child sexual abuse content. 

In fact, some even say that restrictions against harmful speech are necessary in order to maintain the conditions of open debate and democracy. How can people engage in a debate if speech that harms them is given free rein? They thus appear to accept much of the case for free speech as repeatedly advanced by successive generations of advocates, from J.S. Mill to Jonathan Rauch, Karl Popper to Jacob Mchangama: that free speech is essential to personal liberty, that knowledge advances through contestation and critique, that the possibility of progress requires allowing critiques of policy and law, and that those who lack material power are especially reliant on robust protections for free speech. 

Can we have all that, without accepting speech that causes harm, particularly harm to vulnerable groups? It is an appealing proposition. ‘The bliss of freedom enjoyed by those who have power should never mean the right to cause pain to those who are comparatively powerless. And no one’s exercise of free speech should make another feel less free.’ The words of the late Dr Moana Jackson reverberate widely.

Threats, denigration and a lack of respect for the truth rapidly undermine civic discourse and create a toxic atmosphere of political polarization and worse. But is a civility norm the equivalent of one that penalises harmful speech?

Both rest on some underlying shared understanding of what is civil and what is harmful. But harm is a much more expansive notion. It is not just that the experience of harm is subjective. One could say the same of civility. Different cultures have strikingly different rules of civil conduct. Most New Zealanders are pretty rude if judged by the standards of cultures that require a great deal of deference to age or social status, where failing to use honorifics and speech markers that reinforce status differences can cause offence. 

Hearing the words that your spouse no longer wishes to remain married to you, for example, is likely to cause significant harm. ‘Broken heart syndrome’ is a physical response to emotional distress. Pain itself – as captured by neuroimaging – is multidimensional and includes emotional state, anticipation and expectations of pain. Sexual and social rejection is harmful and can cause lasting damage.

And yet most of us – at least those of us outside the incel community – will recognize that we all have the right to reject unwanted sexual advances and to move away from friendships and relationships. And we have that right even if asserting our boundaries causes non-trivial harm to those we reject or whose wishes conflict with ours.

These examples are not far removed from the contentious issues that we now see triggering code of conduct complaints or other moves to shut down speech. In 2021, complaints of ‘harm’ were used to prevent discussion of upcoming legislation at council-owned community facilities. In this case, the ‘harmful’ discussion was one that featured objections to legislation that would allow any individual to change the sex recorded on their birth certificate simply by making a declaration. It took a High Court ruling to overturn one Council’s refusal to allow use of its premises for discussion of the bill before parliament. While the law has  now passed (despite most public submissions being opposed to it), the issue is one that continues to generate controversy. The definition of what is a woman may be one that tears apart the British Labour Party, with accusations of harm and hate speech regularly made against those who wish to stick to a definition based on biological sex. 

The issue here is not simply that we live at a time when conflicting views about what is a woman generate rage and anxiety. The issue is that we live at a time when many people regard certain beliefs to be harmful, no matter how politely the heretical belief is expressed. If debate itself is harmful, there is no acceptable way to say that humans cannot change sex or that, for some purposes, sex rather than gender identity is what matters. 

Opinions that run counter to the current establishment orthodoxy are frequently condemned as harmful in themselves, no matter how they are expressed. Take a heretical stance on the status of the Treaty of Waitangi, the relationship between mātauranga Māori and science, the limits of religious freedom, or the conflicts between individual liberty and the needs of people with disabilities.. and see the accusations of racism, bigotry and ‘able-ism’ flow in. 

Such denunciations can be seen as ‘pejorative bombs’ – a way of shutting down debate. This is not conducive to rational discussion of conflicting rights and views; but an open society can live with people calling each other names and passing judgement on the morals of others. We should encourage civil expression, particularly in workplaces and educational establishments (where rules against bullying and harassment should curtail certain types of personal denunciation), but ultimately the right to launch ‘pejorative bombs’ falls within an individual’s free speech rights, subject only to limitations of the current law against libel, threats of violence or incitement to violence.

The more serious damage comes from trying to prevent the expression of ‘harmful’ views. I admit to some scepticism as to whether any actual harm is caused by heretical opinions on the constitutional status of the Treaty of Waitangi or whether ‘woman’ is a category that anyone can freely identify into. But I can accept that some people really do feel harmed by hearing things they don’t like, and if they feel harmed then possibly they have indeed been harmed, depending on the measure one uses. Either way, it is impossible to maintain an environment conducive to free expression if debate become bogged down in attempts to prove, or disprove, the harmfulness of speech. 

Everything comes with a trade-off. Some speech can indeed cause harm, but the price of trying to restrict harmful speech beyond the current limits set by law is too high.

If we coerce dissenters into silence because their views are harmful, we will no longer live in a society that seeks to advance knowledge and resolve differences through reasoned debate. 

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