It is always astonishing just how dumb very smart people can be. A week after Donald Trump’s stunning win in the US presidential elections — that many saw as a repudiation of elite metropolitan opinion being imposed on ordinary citizens — a 44-strong phalanx of King’s Counsels thought it would be an excellent idea to denounce David Seymour's Treaty Principles Bill in an open letter to the Prime Minister and his government.
No doubt the KCs thought that revealing their thoughts the day before the bill was debated in Parliament would ensure their missive had maximum effect. In fact, the eminent lawyers threw a door wide open for Act’s leader to saunter through — and he did. Seymour has long cast his bill as the chance to “democratise” discussion of the Treaty and they gave him an excellent opportunity to reinforce that message.
“These guys oppose the Treaty Principles Bill because it gives everyone a say, even if you’re not a King’s Counsel,” Seymour said. “Until now, unelected judges, lawyers and public servants have decided what the Treaty means. That’s how we’ve ended up with divisive policies focused on ancestry.
“Of course they don’t like the Treaty Principles Bill. An entire industry has developed around interpreting the Treaty, with the legal profession being the prime beneficiary.”
Senior silks may well command fees of $1000 an hour and own racehorses, vineyards, and possibly a chateau in France but that doesn’t mean they can’t do serious harm to their reputations in public when they launch themselves into politics. And they have.
What is perhaps most immediately striking about the letter is that in requesting “the Prime Minister and the coalition government to act responsibly now and abandon the Bill” they are asking David Seymour to completely breach the trust that the 246,473 people who voted for Act last year have placed in him. The Treaty Principles Bill was a major plank in his campaign — and he fought hard to have it included in Act’s coalition agreement with National.
The KCs must think that such a gross breach of voters’ trust is perfectly acceptable. In fact, they recommend it — which should raise eyebrows among lawyers generally as well as among the public.
They are also asking, of course, for Christopher Luxon to abandon his agreement with the Act Party to allow the bill to go to select committee for review, despite Act’s support making it possible for him to form a government.
The point most commentators have criticised is the letter’s claim that it is “uncertain” whether Parliament can legislate in the way the bill proposes. The lawyers assert it is “not for the government of the day to retrospectively and unilaterally reinterpret constitutional treaties.”
In short, they are implying that Parliament isn’t sovereign. Why the KCs would cast doubt on that bedrock belief about our democracy in an open letter written for public consumption is puzzling. If you really want to annoy voters, tell them that the ultimate say in our democracy does not lie with those politicians they elect every three years but with a coterie of unelected senior judges.
Lawyer and political commentator Liam Hehir asked on his Substack “Blue Review” why “such eminent members of the legal profession [would] make this erroneous claim?” He concluded that their position reflects “a long-standing desire within parts of the legal profession and associated academic fields in which judicial activism and scepticism of parliamentary sovereignty have been quietly cultivated for decades… 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.”
The lawyers questioning Parliament’s supremacy as the highest court in the land seems to be particularly out of touch with reality given the government introduced a bill in September to overturn judicial rulings relating to Māori claims to the coastline.
The Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill is a clear assertion of parliamentary sovereignty. As Justice Minister Paul Goldsmith put it: “[The bill] overturns the reasoning of the Court of Appeal and High Court in Re Edwards, and the reasoning of all High Court decisions since the High Court in Re Edwards, where they relate to the test for Customary Marine Title.”
This government won’t accept judges countermanding Parliament’s plain intent in the Marine and Coastal Area Act 2011 that the bar for iwi and hapū gaining marine title to the foreshore and seabed should be set high. The judges decided that conforming to Te Tiriti and tikanga was more important than following Parliament’s express intention.
The amendment bill now before Parliament is the result of the coalition agreement between National and New Zealand First. And it is very hard not to see it as Parliament giving activist judges a well-deserved spanking, and a very public demonstration of who’s boss.
The KCs subscribe to the belief that the Treaty implies a “partnership” — describing it as “settled law”. Yet it is constitutionally impossible for the Crown to form a partnership with its subjects. Given the Crown represents all of us, including Māori, how can they sit on both sides of the table? In his Bruce Jesson lecture in 2000, David Lange rightly called the idea “absurd”.
Unfortunately, some of the letter is plainly gobbledegook. What are we to make of the claim, “The proposed ‘Principle 3’ [in Seymour’s bill] — the right to equality — does not recognise the fundamental Article 2 guarantee to Māori of the right to be Māori”?
There are no words in Article 2 that guarantee Māori “the right to be Māori”. And in a population that was almost entirely Māori when the Treaty was signed, why would Governor Hobson reassure them they could go on being Māori? What exactly would have been their other options?
Nevertheless, we should be relieved perhaps that at least the KCs’ letter wasn’t expressed in the mix of Māori and English (known as “Manglish”) our betters regularly force on us.
Last week RNZ claimed, “Those [protesters] RNZ has spoken to at the hīkoi — including Māori lawyer Maree Sylva — have been clear about their position.
“’Te Tiriti o Waitangi is our founding document and the takahi [trampling] of the mana of that document is obviously something we don’t support at the moment so we’re here to tautoko the kaupapa,’ Sylva said.”
RNZ has conjured a new and interesting use of the word “clear” to say the least.
Our university academics are also giving the KCs a run for their money in lowering their reputations in public — and none more enthusiastically than anthropologist Dame Anne Salmond. A regular contributor to Newsroom, she has repeatedly claimed over the past year that not being able to read te reo disqualifies anyone — and David Seymour in particular — from having an informed opinion on Te Tiriti.
At the end of October, in a column titled “Iwi, Kiwi and Te Titiriti”, she opined: “[The Treaty Principles Bill] is one-sided… It is inaccurate, based on a selective, distorted reading of Te Tiriti o Waitangi. You shouldn’t try to instruct others about the basic principles in a document you can’t read.”
Say what? This will be devastating news to the world’s 2.3 billion Christians who can’t read the New Testament in the original Greek or those among the 1.9 billion Muslims who can’t read the Koran in classical Arabic but rely on translations.
Seymour has often said he uses Sir Hugh Kawharu’s 1986 back translation of the Māori version of the Treaty into English. He notes that Waitangi Tribunal members rely on it as well. Should we therefore discount their rulings and analysis too?
Perhaps most significantly, Governor Hobson had a very poor grasp of te reo and relied on the missionary Henry Williams and his son Edward to translate into Māori the Treaty in English he had cobbled together. When he addressed the chiefs, he required the services of a translator.
Are we meant to believe that because Hobson couldn’t read or speak Māori fluently he had no way of understanding Te Tiriti and what it promised — even though he presented it to the chiefs and signed on behalf of the Crown? If so, the Treaty really is a fraud.
Perhaps Dame Anne’s repeated criticisms of Seymour being unable to read te reo is not the winning argument she imagines it to be.
Graham Adams is a freelance editor, journalist and columnist. He lives on Auckland’s North Shore. This column was first published at The Platform