Landmark decision leaves treaty lacking legal status

Press, 20 July 1987, Page 17

Landmark decision leaves treaty lacking legal status

PA Wellington The Court of Appeal’s landmark decision in favour of the Maori Council should not be allowed to obscure the Treaty of Waitangi’s lack of legal status, the Maori Land Court’s Chief Judge Eddie Durie had said. The Court of Appeal’s unanimous decision — that the treaty principles over-rode everything else in the State-owned Enterprises Act — had been possible only because Parliament put the treaty in the legislation which the Court reviewed, he said. “It does not follow that the treaty has application to all laws,” he said. “A Bill of Rights that incorporates the treaty or some other constitutional arrangement would be needed to do that.” Speaking at the Wellington School of Medicine’s Wednesday lecture series, Judge Durie said that although a Bill of Rights including the treaty was under consideration by Parliament, the treaty’s only status was that which Parliament provided for it. “Of course no-one told the Maoris that that would

be so when the treaty was signed, or that partnership would be conditional on the affirmation of a democratically elected Parliament.” He said the past president of Law Asia, an Indian lawyer, had recently noted that the rights of minorities were jeopardised in the very foundations of a democratic government. The burning question for New Zealand was whether it would follow the lead of many other countries and adopt a Bill of Rights which included the treaty, His Honour said. “The issue, it seems, is contentious. Most New Zealanders, it appears, see little need for such a bill ... for most New Zealanders have not shared the Maori experience.” Nor did most New Zealanders appreciate the extent of Maori loss which followed the denigration of the treaty or the deepseated grievance which continued as a result, he said. “It is not well known either that initially the Maori adapted with alacrity to Western commer-

cialism when settlement first began.” Maori farms, gardens and flour mills supplied settlers through the 1850 s and shipbuilding and coastal trading were Maori-dominated. Some produce was exported to Australia, printing presses were established and one tribe opened its own bank. Judge Durie said change was easy then, because it was on Maori terms, but after home government, and a population loss through disease and war, the Maoris lost almost all they treasured. Land confiscation had been less devastating than the confiscation of tribal law and authority over what remained, he said. Resurrection of the treaty might not salvage past losses but might at least ensure the past was no longer continued. “In the meantime it seems to me somewhat hypocritical that we should criticise development in Fiji, in paying homage to democracy, or should presume to occupy the moral high ground in international forums.” The trend to multiculturalism was acceptable, but only as long as it recognised the Maori as more than just another minority culture.