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Set justice aside then, what are kingdoms but fair thievish purchases?
-St Augustine
I argue that a fiscal cap set by Parliament on a full and final settlement of all Mori claims is illegal and inappropriate. I acknowledge that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 is a precedent for such a full and final settlement of Mori claims. I also acknowledge the doctrine of parliamentary supremacy which claims to legitimise such a process. However, I argue that this doctrine is subject to limitations and qualifications, that the Treaty of Waitangi imposes obligations binding on the Crown not to legislate contrary to its principles, and that there are sound reasons why a fiscal cap is inappropriate. It is my thesis that the Treaty of Waitangi, which lies at the heart of many Mori claims, is above the competence of Parliament to nullify by legislation.
The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 states that, whether Mori claims in respect of commercial fishing are based on common law, statute or the Treaty of Waitangi itself, they are satisfied.[1] According to the judgment in Cheyney v Conn (Inspector of Taxes),[2] such an Act cannot be unlawful because a statute is the highest form of law. Simply because the Act states that the Crown's obligations to Mori in respect of commercial fishing are completely fulfilled, discharged and satisfied, that is the legal position.
The precise origins of the parliamentary supremacy doctrine are unclear. On the one hand it may have been the result of a deal in seventeenth century England between the courts and Parliament to ensure that Parliament was legally supreme over an undemocratic monarch.[3] Another possible origin was the mind of John Austin, who was determined to separate law from morality. Law “properly so called” was defined by its source: if a statement is the command of a sovereign it is the law. Any legal limitations on this source of law would be a flat contradiction in terms: just as a son cannot be the source of its mother, the law cannot bind a sovereign.[4] Dicey made the clearest statement of the parliamentary supremacy doctrine:
Parliament has, under the English constitution, the right to make any law whatever, and further, no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.[5]
When a child asks a parent why she must go to bed the answer that is often given is “because I said so”. It is my view that little more than this stands in the way of the argument I propose. I do not accept that a fiscal cap on a full and final settlement of all Mori claims is legal simply because Parliament says so. Nor, I argue, do the courts.
Whatever its origin, the doctrine of parliamentary supremacy displays the considerable hidden danger in teaching students legal doctrines like this. Students become lawyers, lawyers become judges, and theories become law. However, if lawyers and judges have blindly accepted this doctrine for its superficial attractiveness and logical simplicity rather than because of necessity or that it states an uncontroverted representation of the law, this student is not convinced. It is certainly not necessary that a legislature can make any law it wishes: many nations have a written constitution that is legally supreme. I notice that the judgement in Cheyney v Conn did not cite any precedent for its bold proposition, a factor which should count against the weight of its authority on this issue. There is also some considerable doubt as to whether Dicey found his clearly-expressed argument stated in the law at all.[6]
The issue is not so beyond doubt that it goes without saying or is in no need of support. The fact is that municipal courts have recognised limits on the legality and legitimacy of a political regime. In Mitchell v DPP,[7] it was held to be illegal for a sovereign to secure obedience through oppression. Could not a New Zealand court recognise constitutional principles that are above the legislative competence of Parliament? What did Cooke P mean in Taylor v New Zealand Poultry Board[8] when he stated that presumably some common law rights go so deep that not even Parliament could override them? What of his statement in New Zealand Mori Council v Attorney General[9] that “the Court will not ascribe to Parliament an intention to permit conduct inconsistent with the principles of the Treaty”? What of his comment in Te Runanga o Wharekauri o Rekohu v Attorney General[10] that the proper time for challenging an Act of a representative legislature is after its enactment? Cooke P accepted in this case that Parliament could repeal legislative protection of Mori commercial fishing rights. But he indicated that repeal of the Treaty was an entirely different matter:
This Act does not purport to repeal the Treaty of Waitangi. Moreover a nation cannot cast adrift from its foundations. While Parliament is free to make the legislative changes envisaged in the deed, whatever constitutional or fiduciary significance the Treaty may have of its own force could only remain.[11]
These dicta indicate there may be something unique about the Treaty which places it above the legislative competence of Parliament to repeal.
If adaptability is the enduring feature of the constitution,[12] surely ours must respond to changes in thinking over recent years. I believe that dicta such as I have quoted would be at least as relevant to the New Zealand situation, temporally and spatially, as the statement in Cheyney v Conn, the historical foundation of which is open to serious question. It may be seriously questioned whether that case is directly binding on our courts when they are asked to consider the structure of the modern New Zealand constitutional system.
It may also be pointed out that, if an Act offends the constitutional order as perceived by the courts, it is not always given free reign to do so. In Anisminic Ltd v Foreign Compensation Commission,[13] the House of Lords saw such a threat to the rule of law that it decided that it could do the very thing which the express word of Parliament attempted to forbid. The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 may sound a loud alarm for what could become incorporated in a Treaty of Waitangi (All Claims) Settlement Act.
In a nutshell then, I believe that, if there is a will, there is still a way to find that an Act which purported to impose a full and final settlement on all Mori claims could be rendered illegal and of no effect. Despite the parliamentary supremacy doctrine, an attempt to repeal the Treaty by statute in this manner may not legally succeed.
The Treaty of Waitangi is a valid treaty of cession at international law unless we accept that Mori tribes lacked international legal personality at the time of its signing.[14] Due to the inter-temporal nature of international law “it would have been conclusive had the British Government declared them sovereign over their respective territories”.[15] Lord Normanby's instructions to Hobson in 1839 seem conclusive in this regard.[16]
The effect of a valid treaty of cession at international law is that it qualifies legislative discretion by imposing an obligation on each party to act in good faith.[17] In New Zealand Mori Council v Attorney General,[18] Richardson J recognised the continuing applicability of the international law doctrine of good faith as imposing obligations on both parties to the Treaty. He said that this was necessarily inherent in such a basic compact as the Treaty of Waitangi. The Treaty was seen by him to impose such an obligation on the Crown “no less than under the settled principles of equity as under our partnership laws”.[19] In equity a partner has a fiduciary obligation not to place himself or herself in a position where a duty to the other partner is in conflict with personal interest.[20] It is reasonable to argue then that the Crown, upon which such an obligation is imposed by law, could not legally place itself in a position where its duty to Mori conflicted with its interest in placing a fiscal cap on all Mori claims.
This principle of equity is particularly appropriate to the situation that exists in New Zealand today. A fiduciary relationship is found where one party to it is in a position to use its discretion in a way that may have damaging consequences to the more vulnerable party.[21] Mori today are as vulnerable as ever to the legislative discretion of the Crown in Parliament and to the potential abuse of that discretion. I submit that, in combination with the possibility that a statute may be disregarded by a court, and can be regarded as illegal, this suggests that, even if enacted, a full and final settlement of all Mori claims would be illegal.
To convince a court that it should take what is a constitutionally drastic step, it would first need to be convinced that an Act of Parliament purporting to make a full and final settlement of all Mori claims is, legal considerations aside, clearly inappropriate. This student observes that the modern judicial approach in New Zealand, whenever possible, is to decide cases on their merits. Where then do the merits of this case lie? What could be so wrong with making a concerted effort to compensate past grievances? After all, Cooke P saw the positive features of the Sealord's deal as being in accord with his interpretation of what is required of the Treaty partners.
However, this was because it was a “tide which had to be taken at flood”.[22] It does not follow that all such deeds and an extinguishment of all Treaty claims will be accepted. It was agreed in that case that the deed of settlement would not apply to those Mori who had not signed it. Foreclosure of fiduciary issues was expressly rejected.[23] The Waitangi Tribunal has also found against the appropriateness of extinguishment:
The essence of the Treaty is that it is all future looking. It is not about finite rules or final pay-offs.[24]
It is the extinguishment that is objected to, not the seizing of the opportunity. Indeed, not all claims are amenable to financial satisfaction: the protection of the language, the desire of Mori to be consulted as a true partner, the claim to rangatiratanga are clear examples. These are enduring issues. They will take time, patience, honesty, wisdom, good faith and not simply money, to work through. It would be entirely inappropriate to extinguish the document that can serve as a guide to fulfilling such aspirations.
Reference should also be made to the reciprocity principle enshrined in the Treaty. O'Conner describes the hau of the Treaty: “that force embedded in [it] that demands a return”.[25] To acknowledge the Treaty is to acknowledge its hau. This feature creates an ongoing reciprocity between equals. Rather than being a finite contract with one set of consideration, each positive act by one partner demands a positive act by the other, resulting in an ever-strengthening rather than a one-off relationship. A full and final settlement would be clearly inappropriate in the light of this principle.
I have argued that even an Act of Parliament, incorporating a full and final settlement which attempts to extinguish the basis of all future claims by Mori, can be regarded as illegal and inappropriate. Notwithstanding the doctrine of parliamentary supremacy, there is cogent argument, based on legal, equitable and cultural factors, that the fiscal cap is neither legal nor appropriate. The argument must be made before a “Treaty of Wellington” is allowed to cast New Zealand adrift from its foundations. To accept otherwise is to accept that a judge may in the future allow the words to pass his lips: that the Treaty of Waitangi is a simple nullity.
[*] BSc (Hons) (Massey), third year LLB student, Waikato University; winner, McCaw Lewis Chapman Advocacy Contest, 1994.
[1] S 9.
[2] [1968] 1 WLR 242, 243.
[3] Joseph, PH Constitutional and Administrative law in New Zealand (1992) 429,57.
[4] Austin, J The Province of Jurisprudence Determined (3rd ed 1968) 254.
[5] Dicey, AV Introduction to the Study of the Law of Constitution (10th ed 1959) 70.
[6] Walker, G de Q “Dicey's Dubious Dogma of Parliamentary Sovereignty: A Recent Fray With Freedom of Religion” (1985) 59 ALJ 276.
[9] [1987] 1 NZLR 651, 657.
[10] [1992] NZCA 503; [1993] 2 NZLR 301, 308.
[11] Idem.
[12] Joseph, supra note 3, at 3.
[13] [1968] UKHL 6; [1969] 2 AC 147. The House of Lords reviewed a determination of the commission despite a privative clause that stated “The determination by the commission of any application made to them under this Act shall not be called into question in any court of law”.
[14] Joseph, supra note 3, at 43.
[15] Ibid, 46.
[16] “[W]e acknowledge New Zealand as a sovereign and independent state, so far at least as it is possible ...”. The contention of Prendergast CJ that the qualification nullifies the proposition to which it is annexed (Wi Parata v The Bishop of Wellington (1877) 3 NZ Jur 72) followed the positivist revolution in legal thinking based on the Austinian view that there could be no state without a single, determinate, and indivisible sovereign. See Hackshaw, F “Nineteenth Century Notions of Aboriginal Title and their Influence on the Interpretation of the Treaty of Waitangi” in Kawharu, H (ed) Waitangi: Mori and Pakeha Perspectives of the Treaty of Waitangi (1989).
[17] Kingsbury, B “Treaty of Waitangi: Some International Law aspects” in Kawharu, supra note 16, at 125-30.
[18] [1987] 1 NZLR 651, 657.
[19] At 680-2. See also Cooke P’s judgment at 664.
[20] Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178.
[21] Frame v Smith (1987) 42 DLR (4th) 81, 97-8.
[22] Te Runanga o Wharekauri o Rekohu v Attorney General, supra note 10, at 307.
[23] At 307-309. In Te Runanga o Muriwhenua Inc v Attorney General [1990] NZCA 7; [1990] 2 NZLR 641, the President describes Treaty obligations as “ongoing”.
[24] Waitangi Tribunal, The Fisheries Settlement Report (1992) 11.
[25] O'Conner, M “Honour the Treaty? Property Rights and Symbolic Exchange” in Proceedings of the Sesquicentennial Conference of the New Zealand Association of Economists (1991).
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