“Minister Goldsmith’s rebuff of the Tribunal’s report thwarts rather than facilitates the constitutional functions that parliament has bestowed on the Tribunal,” says Professor Philip Joseph. (Photo: University of Canterbury)
Professor Philip Joseph, a leading public law expert and King’s Counsel, recently provided evidence to the Waitangi Tribunal’s urgent inquiry into the review of Treaty clauses in legislation.
The government proposes to repeal or amend Treaty clauses across 19 statutes. The Tribunal says the proposal is in breach of the principles of the Treaty and will adversely affect Crown-Māori relations. It has made several recommendations on how the review might be amended.
The responsible minister, Paul Goldsmith, acknowledged the Tribunal’s findings and recommendations but has declined to accept or act on them.
Here is an edited version of Professor Joseph’s brief of evidence to the Tribunal, explaining that the minister’s response was an affront that opens the government to legal challenge.
Minister of Justice Paul Goldsmith’s response to the Waitangi Tribunal is that the government’s planned review of Treaty clauses is “necessary to effectively address the issue of certainty in legislation and to better support compliance”.
He concluded: “I therefore do not consider it necessary to make changes to the review in line with the Tribunal’s recommendations.”
The minister offered no justification, except to observe cabinet’s endorsement of the review and to say that, in his view, the purpose and process of the review were “necessary”.
That response amounted to a summary dismissal of the Tribunal’s findings.
It is unacceptable that a minister of the Crown should treat Tribunal findings with such off-hand indifference. The Tribunal’s constitutional functions impose reciprocal obligations on the Crown to act honourably in its dealings with the Tribunal.
The Tribunal is a constitutional body
The Waitangi Tribunal has constitutional standing surpassing other public bodies, including commissions of inquiry.
Its job is to police compliance with the principles of the Treaty of Waitangi, and it is vital for maintaining the integrity of Crown-Māori relations.
Tribunal recommendations are not binding on the Crown. Nevertheless, the Crown must engage genuinely and in good faith when the Tribunal makes specific findings that the Crown is acting (or is proposing to act) in breach of its Treaty obligations.
In its inquiry into the government review of Treaty clauses, the Tribunal recommended action to avoid or ameliorate such breaches. Such findings trigger the common law obligations of “the honour of the Crown” to respond meaningfully and respectfully.
At the very least, the Tribunal’s findings and recommendations comprise mandatory relevant considerations that must be genuinely factored into the minister’s response.
Yet Minister Goldsmith peremptorily dismissed the Tribunal’s findings and recommendations.
As the Crown’s alter ego, the minister acted in breach of the Crown’s Treaty obligations, the concept of the honour of the Crown, and the common law requirements of due process, fairness and consultation.
The minister was not legally obliged to accept the findings or act on the recommendations, but nor could he summarily dismiss them and refuse to engage with the Tribunal’s report.
The concept of the honour of the Crown is an established principle of the Treaty. This concept applies with respect to all of the Crown’s dealings with its Treaty partner. The Crown breaches this concept when it summarily dismisses Tribunal findings of Crown breaches of the Treaty, and flouts its recommendations to avoid or ameliorate such breaches.
As stated in my brief: “The courts might entertain a challenge to the minister’s refusal to address the Tribunal’s concerns. That’s because the Treaty is the bedrock of New Zealand’s constitutional framework, and the Tribunal was established to monitor the Crown’s compliance with its principles. It is an affront for the minister to rebuff the Tribunal’s constitutional duty to investigate and report on claims of Treaty breaches.”
A challenge might be brought in the High Court that the minister’s actions were an abuse of executive power and process, in breach of the Crown’s common law obligation to act honourably, whether towards its Treaty partner or the Tribunal.
Constitutional standing of the Tribunal
The Waitangi Tribunal must be distinguished from other public bodies and statutory decisionmakers. The Tribunal, although lacking binding powers of decision, is a body exercising important functions at the apex of our constitutional system.
For the Supreme Court, the Tribunal’s jurisdiction is “unique in New Zealand’s legal and constitutional framework”. It occupies a “unique constitutional space” and is “a critical part of our constitutional architecture”.
The Tribunal is sui generis, standing apart from all other public bodies. Its sole focus is on this country’s founding document — the Treaty of Waitangi. Parliament created the Tribunal for the express purpose of providing for the observance and confirmation of the principles of the Treaty.
The Treaty stands above the positive laws of the state, as the instrument that confers legitimacy on the Crown and executive government. The Tribunal’s constitutional role imposes a correlative duty on the Crown to take Tribunal findings and recommendations seriously, especially where findings indicate that legislation the government proposes to enact will place the Crown in breach of its Treaty obligations.
Any high-handed response to such findings is to be deplored.
The Treaty of Waitangi Act
The Treaty of Waitangi Act 1975 gives the Tribunal “exclusive authority to determine the meaning and effect of the Treaty as embodied in the two texts,” that is, in the English and te reo language versions.
The Act states that the Tribunal “must” inquire into every claim submitted to it unless the claim is trivial or vexatious, or there is an alternative adequate remedy.
By virtue of its statutory function, the Tribunal must fearlessly investigate Treaty compliance by the executive government.
The broad jurisdiction of the Tribunal, particularly in relation to contemporary claims, may therefore call into question political judgments and preferences.
Jurisdiction of the Tribunal
The Tribunal discharges a weighty national responsibility in authoritatively pronouncing on the meaning of the Treaty and its principles. The courts acknowledge that the Treaty is a “living instrument” whose meaning and principles will evolve “in the light of the developing national circumstance”.
The Treaty establishes New Zealand’s bicultural foundations, and the Tribunal is mandated to inquire into claims that any Act or statutory instrument (proposed or enacted), or any policy or practice of the Crown (proposed or adopted) is inconsistent with the Treaty’s principles. The Act expressly precludes the Tribunal from inquiring into a bill that is before the House of Representatives.
Nevertheless, the Tribunal retains jurisdiction to inquire into policies, practices and acts or omissions of the Crown preparatory to the introduction of a bill.
Minister Goldsmith’s rebuff of the Tribunal’s report thwarts rather than facilitates the constitutional functions that parliament has bestowed on the Tribunal.
Generosity of spirit
In the groundbreaking Lands decision in 1987, the Court of Appeal affirmed that the Treaty must be viewed as a living instrument, capable of adapting to new and changing circumstances.
The decision found that too much had been made of the differences between the two texts, when “what matters is the spirit” and the “positive and enduring role of the Treaty.”
The way ahead, said Justice Ivor Richardson, called, “above all, for a generosity of spirit.”
Minister Goldsmith’s response to the Tribunal’s urgent inquiry does not exhibit a “generosity of spirit”.
The following common law principles expose the minister’s actions to challenge.
The honour of the Crown
The honour of the Crown lies at the heart of the Māori perception of the Treaty.
Lord Normanby’s Instructions of August 14, 1839, to Captain William Hobson engaged “the faith of the British Crown”, which encapsulated the attitude of the British authorities in entering into a treaty. Normanby’s Instructions continued: “All dealings with the Aborigines for their Lands must be conducted on the same principles of sincerity, justice, and good faith.”
Similarly, Lord Stanley’s later Instructions issued on June 13, 1845, directed then Lieutenant Governor George Grey to “honourably and scrupulously fulfil the conditions of the Treaty of Waitangi”.
The Treaty relationship between the signatory parties is in the nature of a partnership. Māori are entitled to participate in public decision-making affecting Māori and engage in meaningful deliberations with the Crown; and the Crown is under a duty of active protection towards its Treaty partner.
The concept of the honour of the Crown has ongoing expression, for example, in Canadian cases on treaty rights with First Nations people. Recently, in Haida Nation v British Columbia, the Supreme Court of Canada held that the government’s duty to engage with Aboriginal peoples and accommodate their interests is grounded in the principle of the honour of the Crown, which “must be understood generously”.
The Canadian jurisprudence throws into sharp relief Minister Goldsmith’s unilateral rejection of the Tribunal’s findings in the government’s review of Treaty clauses.
The minister initiated a review process that did not include engagement with iwi and hapū (as Treaty partners), the general public or other external stakeholders. Consultation with iwi and hapū is a primary mechanism through which the government discharges its responsibility to act in good faith towards Māori.
Having received the Tribunal’s findings, Minister Goldsmith in effect rejected the public law obligation to consider whether some recommendations might be adopted that would not unduly compromise the government’s review.
The honour of the Crown means it cannot summarily dismiss, reject or renounce a Tribunal recommendation. Rather, the responsible minister has a duty to genuinely and openly weigh the Tribunal’s findings and recommendations, and come to a reasoned decision on the government’s proposed action.
What that action might be is the government’s prerogative. But what it cannot do is summarily or unilaterally dismiss the Tribunal’s report with a closed mind. To do so is a breach of fair process and the honour of the Crown.
Other common law principles
The common law principles of fairness and due process are equally applicable when assessing Minister Goldsmith’s refusal to entertain the Tribunal’s findings. These principles impose obligations on the minister to facilitate, rather than thwart, the Tribunal’s functions.
An analogy might be drawn to the administrative law principles governing mandatory relevant considerations. When the government or responsible minister receives a Tribunal report, the government or minister must make a decision on how it wishes to respond. That decision entails the exercise of discretion. The government must weigh the factors relevant to the exercise of its discretion, including the Tribunal’s findings and recommendations. These findings and recommendations become, in effect, mandatory relevant considerations.
The law on mandatory relevant considerations is settled. Decision-makers must approach such considerations with due deliberation and an open mind. Mandatory considerations may not be “rebuffed . . . by a closed mind”.
Relevant factors must receive genuine consideration and be given “due weight” in the decision-making process. Decision-makers must weigh mandatory considerations “on a fine-grained basis”, “openly and transparently”, or risk a finding of “no weight”.
Minister Goldsmith did not approach the Tribunal’s findings and recommendations with the due deliberation required. Rather, the findings were “rebuffed . . . by a closed mind”.
This finding adds to the minister’s failure to act honourably under the common law obligation of the honour of the Crown.
Conclusion
Minister Goldsmith, acting on behalf of the Crown, has unilaterally dismissed the Tribunal’s recommendations, without engaging with them in an open and transparent manner. Unilateral action flouts the honour of the Crown and breaches the administrative law principles of fairness, natural justice and consultation.
To return to Haida Nation: “The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests.”
The Crown has clear obligations in its dealings with the Waitangi Tribunal. Parliament invested that body with constitutional powers and responsibilities that entitle it to be accorded respect when engaging with the Crown. Our public law principles are sufficiently purposeful and nuanced to ensure that that is so.
This is an edited summary of the evidence given by Professor Philip Joseph to the Waitangi Tribunal, and is published here with his permission.
Philip Joseph KC is a lawyer and a professor of law at the University of Canterbury. He is the author of Joseph on Constitutional and Administrative Law*, and is considered a leading authority on public law in New Zealand.*
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