Gary Judd KC: the Treaty of Waitangi and the Prospect of a Referendum

VIDEO: The Platform's Michael Laws speaks to Gary Judd KC about the Treaty of Waitangi and the prospect of a referendum.

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   Gary Judd, KC:

As a King’s Council, I approach issues in relation to the Treaty from a legal perspective.

One of the things I find frustrating and quite distressing is the inability of many people to actually focus on the facts. And the first thing I want to mention in that regard is that we've got two texts of the Treaty. Because the facts actually do not support that view.

What actually happened, as indicated by contemporary evidence and in particular by the notes William Colenso took at the time of the events of the 4th, 5th and 6th of February 1840, is that on the 4th, Hobson gave Henry Williams, the missionary, some documents and we don't know precisely what they were - one can only draw inferences about that - and he asked Williams to translate or to produce a Treaty in the Māori language.

Overnight between the 4th and the 5th of February, Williams produced a document in the Māori language, the next morning, the 5th, Williams discussed it with Hobson and Busby. Busby, who also spoke the Maori language, made some suggestions for changes, and they were made. And then the document so produced was read out to the assembly that was at Waitangi, having been summoned by Hobson after he arrived in New Zealand by proclamation on the 30th of January.

Prior to Williams reading out what had been written in Māori, Hobson read out something in English, but we don't know what it was because whatever he read out has been lost.

And then there was a great debate, and all of this has been faithfully recorded in notes made at the time by William Colenso, who was the printer for the church mission.

He reported what was said by the chiefs who spoke on the Treaty grounds at that time. And then at the end of that dialogue, the parties adjourned, and then they came back the next day, the 6th of February. Overnight, obviously there had been dialogue between the Chiefs as to whether or not they would sign. Some did, many did, and a few didn't.

So, the Treaty in Māori, or te Tiriti, think is the best way of identifying or distinguishing it from whatever was in English that Hobson read out to the assembly was signed.

In the ensuing days in the north, in particular, and a bit later on around the rest of the country, te Tiriti was signed by Māori.

If you approach the matter from a legal perspective, there is only one Treaty because whatever there was in English was not signed. Apart from an isolated case in Port Waikato where some of the Chiefs, and Hobson, signed a version in English, this was in April, and also some chiefs and from the Manukau Heads. So, in total, there were 39 people who signed that English document.

But clearly the important one is what was signed at Waitangi and it was in Māori.

The idea that there are two treaties as a creation of parliament, which really, quite frankly, has mucked things up dreadfully.

In 1972, in its manifesto for the 1972 election, the Labour Party said that they were going to create a new holiday New Zealand Day, on the 6th of February, and they would also investigate ways of giving some sort of practical effect to the principles of Treaty. The person who was in charge was Matiu Rata but unfortunately, Matiu had a heart attack during the term of that government, so it's a bit unsure as to actually who sort of drove the thing forward within the parliamentary Labour Party party. But whatever it was, eventually, in 1975, the Treaty of Waitangi Act was enacted, and it did two important things.

First of all, it said that there were two Treaties, and put them in a schedule for the Act.

The second thing it did was to say that there were principles of the Treaty. That is what has given rise to all the problems that we see today.

So, the 1975 Act was the origin of principles. The preamble actually states that there are two texts of the Treaty, and whereas the text of the Treaty in the English language differs from the text of the Treaty and the Māori language and, and whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty.

Later on, in the ACT and Section 6, where the jurisdiction of the Tribunal is stated, it actually specifically says that the Tribunal is to receive claims from Māori and to ascertain whether there had been actions which were inconsistent with the principles of the Treaty and they might make recommendations accordingly.

So that's where it all started. And then subsequently Parliament started including these so-called Treaty clauses into legislation, including most importantly into the State Owned Enterprises Act 1986. The meaning of which had to be interpreted by the Court of Appeal in the 1987 Lands case. But before we talk about that I just want to go back to to 1840.

   Michael Laws:

Just before you go back there Gary. In some ways, though, isn't it almost irrelevant what happened in 1840 or what the intentions were because the Treaty had no legal status in New Zealand, presumably until it got its own Act of Parliament in 1975?

  Garry Judd, KC:

That is absolutely correct.

It was affirmed over the years from time to time that domestically, whatever its effect might have been in international law, that's to say in an agreement between states, which doesn't make sense because New Zealand wasn't a state, it was a collection of tribes up and down the country who exercised jurisdiction within their own areas.

 Michael Laws:

If I go back to 1975 when this act was put together - the principles of the Treaty of Waitangi are in it, and the Tribunal was given the responsibility to look at legislation or actions by the Crown that may be inconsistent with those principles. But the principles are defined. So that's one flaw.

You're suggesting the other flaw is that there is really only one version of the Treaty that should have been regarded as being the Treaty, and that's the Māori version. I think the courts have subsequently upheld what you've said and ruled as such.

 Gary Judd, KC:

Well no, they haven't really. The courts, generally speaking, are obedient to Parliament. And parliament said in 1975 that there were two texts of the Treaty. And that’s a fiction.

Because if you have people, let us say negotiating - of course, that's not the right word for what happened - in February 1840, if there were people in dialogue and they produced various drafts and then they finally get to the stage that they produce the document which gets signed, it's the document which gets signed which has legal force.

There was a woman called Ruth Ross who wrote about this in a paper published in the Historical Journal in 1972, who said this idea of two texts of the Treaty is nonsense. There is only one text, and that is the one that was signed and everything else, whether it was in English or in Māori simply has the status of draft, it has no legal status.

That's why I wanted to talk about 1840. The other thing I want to say that 1840, and here I rely again on Colenso’s contemporary notes, is this stuff about Māori not ceding sovereignty.

That is complete nonsense, because it’s perfectly obvious, from Colenso’s notes on what the Chiefs were saying on the day, that they knew what was going to be the consequence of them signing the Treaty. There's one there's one chief who is particularly relevant because he's from Ngāti Rēhia. Chief Tāreha said I am not going to sign this Treaty, it would put you Governor up, up up and me down, down, down. I am not going to have it. And in fact, he didn't sign. But there were a number of other chiefs who said much the same thing. My point is that speaking on the Treaty grounds, On the 5th February 1840, those Chiefs clearly knew exactly what the purport was of the Treaty they were being asked to sign.

So, this business about Māori not ceding sovereignty is just absolute nonsense.

 Michael Laws:

But on that issue, the Waitangi Tribunal have come to a different conclusion. The next question that runs from that is what options do you, or anybody else who seeks to differ from that have to appeal that judgment, if you like, or that interpretation from the Waitangi Tribunal?

Is there a place you can go and say they've got this wrong?

 Gary Judd, KC:

No, there isn't. And in fact, there have been odd ideas over the years that perhaps the Tribunal decision might be subject to judicial review, but the courts have said that's not possible. The only way of really dealing with it is by demonstrating that their approach is completely flawed.

And their approach is completely flawed, and I'll tell you why. In this latest report concerning the claim by Ngapuhi hapū, which came out just before Christmas, in which they said that the northern tribes did not cede sovereignty. The document is 2,000 pages long. I have not read it. Life is too short. The Tribunal seems to mistake quantity with quality.

Now it might be good at quantity, but no quality. Now what I did though, I did download the report, and rather than try and wade my way through it, I searched Colenso to see whether the Tribunal actually referred to the notes that Colenso made on the 5th of February 1840. And I found that whilst there were a number of references to Colseno the Tribunal only referred to Colenso when it suited the argument they were putting forward.

They did not refer to his contemporary notes. If you’re a lawyer, and I guess as a historian you would probably take the same approach and if you wanted to get to the truth, you actually look at evidence that was created at the time. And the best evidence is the reports of people that were written at the time.

Now, Colseno took notes, and he records what happened on the day on the day, on the 5th of February. As I've said, it is perfectly obvious that from what the chiefs said, they knew that if they signed the Treaty, they would be ceding Governorship to the British crown. And a Tribunal, which does not bother to refer to that material, which it seems not to have done, really has no credibility and should be totally ignored. In fact, I think it should be disbanded because whilst in its inception, I think it tried to do a good job, it's really become nothing more than a political voice.

 Michael Laws:

I 100% agree with you and have been saying such for a long period of time now. But can I ask this question of you, as a King's Counsel: If the Waitangi Tribunal gets it wrong, or its interpretation is false, as you're suggesting to do with its report in relationship to the Ngapuhi claim and the various logical conclusions that it comes to, what capability does the New Zealand justice system, which usually always has a court of appeal to be able to correct inequity and wrong decision making, what function is there available to challenge that, other than politically?

 Gary Judd, KC:

Well, quite a few things come out of that. The first thing is that the principles, whilst the Tribunal might provide guidance concerning what the principles are, at the end of the day, it's the High Court, and then through the system to the Supreme Court, which decides what the principles are. So theoretically these could be definitive rulings by the courts, but unfortunately, the courts have essentially kowtowed out to the Tribunal’s views about this. The second problem, which which exists is the Crown has largely gone along with us, so there’s been no contradictor to these arguments about the principles. There’s been nobody there to say, look, this is a load of no-nonsense. There are no principles.

Nobody has actually been there to say that on behalf of the public. And this, I think, is a bad failing of the Waitangi Tribunal system, because the only parties to proceedings before the Tribunal can be the Māori claimants in the Crown. And if the Crown is effectively on the same side as the Māori claimants, then who's going to speak up for truth and reliance on the facts?

 Michael Laws:

That’s a good question. And one obviously we're not allowed to discuss. I mean, that's the issue, isn't it? I mean, people who want to raise the questions that you're raising, or people that are saying, listen, we need to clarify this because it's all a bit ambivalent and a bit unclear are being told you cannot. And that seems not just antic-common sense, but it seems anti-democratic by its very nature, to suggest that let's clarify this issue once and for all, has become seen as an attack on all Māori as was perpetrated at Ratana yesterday.

 Gary Judd, KC:

I think there are some people in the media who wish to portray us in this way. They twist, what anyone says to fit the particular narrative I want to advance. I'm fairly confident that there are many, many Māori people who actually understand the truth of the matter.

Perhaps one indication of that is the tiny percentage of the vote which the Māori Party got in the election.

 Michael Laws:

All right, Gary, thank you very much for this conversation that has been most enlightening. I appreciate your time. Nice to talk to you.

That's Gary Judd, King's Counsel. Distinguished legal career. With his thoughts and views and adding, I think an intellectual insight to both the background but also to the problems that are needing to be resolved, seemingly intractable.

And as Gary just noted in those final comments, heightened by a media that seems to believe in right or wrong, black, white and is doing a gross disservice to us all as a consequence.

Note, this transcript has been edited slightly for readability.

This was originally sourced from The Platform: Gary Judd KC on the Treaty of Waitangi & the Prospect of a Referendum, 24 January 2024