I travelled to Oxford today to visit Max Harris, a friend that I have come to know during my time in London, and who readers will know through his thought-provoking and highly successful text – The New Zealand Project. Oxford is a fabulous city, an hour outside of London, and a place that I instantly felt at home when I first visited last year. If you are ever in the United Kingdom, take a day trip out to Oxford and soak up the peaceful and intellectual atmosphere of the place. During the day we spent a few hours discussing his book, our hopes and fears for the new Labour-led Government, and the extent to which right-wing and left-wing political thought incorporates Tino Rangatiratanga. It was an illuminating discussion, and one that has given rise to a number of interesting points that I want to research further.
Afterwards, I was invited to sit in on a seminar being presented by Dr Aileen Kavanagh, Professor of Constitutional Law at Oxford University, on judicial review and, specifically, the legitimacy of the power of Courts to strike-down legislation that is inconsistent with the constitution. During the discussion I mentioned the New Zealand context, and the current state of deference exhibited by the New Zealand Judiciary towards executive and legislative power, and how this is different to the situation in the 1970s and 1980s when Robin Cooke was President of the Court of Appeal. The high water mark of this period being the Lands Case (New Zealand Māori Council v Attorney-General 1987). When discussing the Lands Case at Law School or more generally, it is often portrayed as the genesis of the judicial recognition of the principles of the Treaty of Waitangi which, in and of itself, is a remarkable legacy. What I did not realise until today’s seminar, is that it is also the closest New Zealand has come to the Judiciary striking down legislation because it is inconsistent with one of the core elements of our constitution – Te Tiriti o Waitangi.
There is a lot of nuance in a decision that runs to 178 pages, nevertheless it is remarkable that one of the most significant judicial review decisions in our history is remembered more for its statement on Māori rights. Of course, only the latter has prevailed over time. But for a brief moment in the 1980s, the Judiciary said to Parliament that this legislation is not good enough, it does not adequately reflect the principles of the Treaty of Waitangi, come up with a new solution and present it to the New Zealand Māori Council and the Court for approval. As President Cooke noted, however, Parliament opened the door for this particular outcome: “If the judiciary has been able to play a role to some extent creative, this is because the legislature has given the opportunity.”
The opportunity was Section 9 of the State Owned Enterprises Act 1986. Section 9 states that “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.” This is one of the first instances of the so-called “Treaty-Clause” in legislation. It is a clause that creates constant controversy. At the same time, it is difficult to find a case following the Lands Case that provided as much weight to the clause as the Court of Appeal did back in 1987. The Court of Appeal interpreted the Treaty Clause as set out in Section 9 as stating that “the principles of the Treaty of Waitangi override everything else in the State-Owned Enterprises Act.” For the first time, Māori rights were positively recognised by the Courts and Parliament was directed to honour the Treaty. It was meant to herald the beginning of a new era for Māori rights – an era in which the Courts would uphold the principles of Te Tiriti and use its power to hold Parliament to account when it breached those principles.
President Cooke was forthright in his assessment of the Court’s role when interpreting legislation that included such a clause: “What is now our responsibility is to say clearly that the Act of Parliament restricts the Crown to acting under it in accordance with the principles of the Treaty. It becomes the duty of the Court to check, when called on to do so in any case that arises, whether the restriction has been observed and, if not, to grant a remedy.” Certainly, since the mid-1990s there has been no such strong remedy provided by the Courts as in the Lands Case. Several months after the judgment was issued, Deputy Prime Minister, and the Minister of Justice, Geoffrey Palmer, introduced an amendment Act to Parliament to reflect the Court’s direction that the breach of the principles of the Treaty be remedied.
It is, however, impossible to imagine the Supreme Court making a similar direction today, or for the Minister of Justice to comply. Recent evidence all points to a Parliament that is willing to legislate over a judicial decision that they do not like. For better or worse, the legitimacy of the Supreme Court has been in question ever since its inauguration and, as a result, the Court has proved more conservative, and more deferential to Parliament and the Government than many, especially Māori, would have hoped. The Lands Case provided a glimpse of what a New Zealand where the Courts, in the words of President Cooke, provided an avenue and a remedy for claims that Parliament has breached the Principles of the Treaty in instances where they have also committed to acting consistently with it, could look like. The Treaty Clause was meant to provide for due recognition of Māori rights. For a brief moment in 1987 we saw that a strong judiciary could compel Parliament to honour the principles of the Treaty. It was, sadly, a short-lived victory.