The Art of Public Law

I am often asked what it is exactly that a Public Law Specialist does.  This is not an easy question to answer, but one that is worth addressing as I feel that most New Zealanders, lawyers included, do not understand the full breadth of the work that we can offer.

If you want to read a detailed analysis of Public Law in New Zealand, Mai Chen has written a book called the Public Law Toolkit and I recommend that you add it to your reading list.  I have yet to read it, but having worked for her in the past I have a good idea as to its contents.  Most public law textbooks will focus on the very dry topic of judicial review – a legal challenge of a decision made by the Government or a Government official.  Public law, however, is much more than challenging the decision of a Government official in Court.  Very few judicial review cases are heard each year in New Zealand and even fewer of them are successful.  As such, it is a very expensive and  a very low-return option for those people or groups who seek to change the law.

What then is public law? Public law is part legal, part political, and part relationship building.  It draws together the legal analysis of a problem, the political ramifications of any legal change, and the evolving dynamics of a MMP Parliament.  Public law is all about using our skills as legal advocates to convince Government officials and Parliament of the need for law reform.  Unlike a Court case, public law does not seek to oppose Government action, but to offer suggestions for improvements in the current legal framework.

I am often asked if I am a lobbyist.  It is as if the work of a public lawyer is demeaning to the political system.  The Hon. Clayton Cosgrove was a big fan of throwing around the term “lobbyist” to describe our work when I was at Chen Palmer as if we were the worst people in the world.  But to think of public lawyers as merely lobbyists is to take a very cynical view of our political system.  Yes, we advocate for our clients.  That is the role of a lawyer.  We fail our commission as lawyers if we do not do everything within the bounds of the law to uphold our clients interests. Public law is no different.

I firmly believe that if you have to go to Court, then you have already lost – regardless of the outcome of the Court case.  Court cases are time-consuming and expensive beyond belief.  Yet, for a fraction of the cost, you can achieve a superior result through the use of skilled legal advocates operated in the realm of public law.  What do you think is the better result: to have legislation that reflects your concerns and upholds your rights and interests, or going to Court to fight over the nature of the rights and interests you may not may not have?

Take, for example, the recent consultation process undertaken by the Government in relation to the section 9 protection for State-Owned Enterprises.  The vast majority of submitters approached the issue with a negative mindset.  The Government was told by submitters, in no uncertain terms, that Māori did not want the partial sales to proceed but, if they did, then the section 9 protection must remain.  It was hardly a nuanced discussion.  Even the submission of the Māori Party failed to present a clear and legally sound analysis of the issue, let alone provide a solution which best protects Māori interests in any new legislation.

How would you use the public law toolkit in such a situation?  The consultation period provided a prime opportunity to actively engage in the intellectual exercise of devising a legislative regime which provided for a more concrete protection of Māori rights under the mixed-ownership model, alongside the recognition of the need to provide security for private investors.  If I was advising a Māori entity on the best approach to take in responding to the consultation process, I would have suggested the preparation of a thorough legal analysis of section 9, including the advantages and disadvantages of the general protection vis-a-vis more specific legislative protections for Māori interests.  This legal analysis would have flowed into the preparation of a draft section which represents the core concerns of both Māori and the Government and which could be readily inserted into the proposed legislation.  Instead of putting up a wall and saying no, you are actively engaging on the issue and presenting a solution to the Government which is designed to ensure the strongest protection of your clients rights and interests.

Māori will have another opportunity during the Select Committee consideration of the mixed-ownership model legislation to present a stronger case for more detailed protection of our rights and interests.  While the consultation process was an opportunity lost, we do have one more chance to address this issue and fight for legislation which better protects our rights.

Much Ado About Nothing?

The debate over section 9 has appeared to come to an end after a predictable Government backdown.  Indications yesterday are that a similar provision will be included in the new legislation to provide for the mixed ownership model of State-Owned Enterprises.  Māori stood up in huge numbers and told the Government in emphatic terms that section 9 must be retained.  We were listened to and the status quo has prevailed.  All-in-all, a very successful consultation process for Māori.

That is the traditional analysis, and that is what will be read in the daily papers across the country today.  The Māori Party will claim victory, National will state simply that this whole issue was nothing more than a storm in a teacup, and the media will congratulate both sides on reaching a satisfactory conclusion.  But this is not a satisfactory conclusion for Māori.  We lost the debate the minute the Government announced the Consultation hui and rigged the debate in their favour.  This is an opportunity lost.

Section 9 in its current form is unsatisfactory.  It sets a bare minimum obligation on the Government – an obligation that, arguably, the Government is bound to honour with or without the specific requirement for it to do so.  The real teeth in the State-Owned Enterprises Act is section 27, the provisions dealing with the banking of land that are claimed for return in a settlement between the Crown and Iwi.  Instead of pushing for more specific protection of Māori interests, Māori were instead drawn into a fight just to retain the general protection that section 9 provides.  The inference by the Government that it favoured the removal of a general Treaty provision in the new legislation was enough to shift the debate.  The Government did not want to get into a debate over strengthening the protection of Māori interests so they did what Government’s do best – they took away a right in the knowledge that the restoration of that right would be enough to satisfy the affected party.  Many Māori will see the restoration of section 9 as a victory.  Instead, it should be seen as an opportunity lost. An opportunity whereby we could have ensured better protection of Māori interests.

Section 9 is essentially meaningless in the day-to-day operations of a State-Owned Enterprise.  It took a powerful Court of Appeal President and a powerful Attorney-General and Deputy Prime Minister to bring effect to the section following the Lands case.  It is difficult to envision the current Supreme Court being as bold as Lord Cooke’s Court of Appeal was, and John Key being, by his own admission, ‘not a lawyer’, will never have the courage that Sir Geoffrey Palmer demonstrated in 1987.  If Sir Graham Latimer and his legal advisers believed, as they did in 1987, in the ability of section 9 to be more than symbolic in 2012 then we would have already seen a case being taken to the High Court.

We need strong legislative protections of Māori rights.  A general, boilerplate, protection does nothing to protect Māori.  Legislation should not state 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.”  We want the Crown to act consistently with Te Tiriti o Waitangi.  It is a positive right, and it is a right which flows directly from the text of Te Tiriti itself.  We were guaranteed Tino Rangatiratanga over our lands, our homes, and our resources.  When did we stop fighting for that and instead settle for the principles of the Treaty? When did we stop fighting for the right to control our own spaces rather than for partnership, active protection, and consultation?

This is an opportunity lost.

LLM Update: Research Proposal

Regular readers will know that I am completing a LLM Research Thesis this year during my spare time.  I have finalised my research proposal and I post it here for those interested in learning a little more about my research.

Working Title

One Land, Two Laws: A Legal Framework for Sovereignty based on Communities not Territory.

Thesis

The aim of this thesis is to undertake an analysis of the nature of legal sovereignty and assess the extent to which models of what I call “community sovereignty” can co-exist within a Nation-State. The idea of community sovereignty is a powerful one for Indigenous communities and for Iwi and Hapū within Aotearoa/New Zealand who seek to have the rights guaranteed in Te Tiriti o Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples.

Sovereignty is a concept that is difficult to define. The 6^th Edition of Black’s Law Dictionary provides, as a starting point, a classical, Western definition of sovereignty:

The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent.

The power to do everything in a state without accountability, –to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like.

Sovereignty in government is that public authority which directs or orders what is to be done by each member associated in relation to the end of the association. It is the supreme power by which any citizen is governed and is the person or body of persons in the state to whom there is politically no superior. The necessary existence of the state and that right and power which necessarily follow is “sovereignty.” By sovereignty” in its largest sense is meant supreme, absolute, uncontrollable power, the absolute right to govern. The word which by itself comes nearest to being the definition of “sovereignty” is will or volition as applied to political affairs.

Within this definition is the implication that sovereignty exists in two forms. First, the exclusive exercise of power within a geographical territory (Internal Sovereignty), and second, the ability to exercise that power without accountability or, to phrase it in another way, to act without interference from another Nation-State (External Sovereignty). This thesis is written in an indigenous context, therefore my focus will be on internal sovereignty and not external sovereignty. In exploring models of community sovereignty, the critical form of engagement for indigenous peoples is with the Nation-State within which they reside. A community model of sovereignty, therefore, is located within the exercise of internal sovereignty.

Using the Black definition as a starting point, this thesis will explore, and provide a comparative analysis of, the existence de jure and de facto of dual internal sovereignty, both on a territorial and non-territorial (or community) basis. It is uncontroversial for a State to, as a matter of law, devolve certain powers to other bodies on a territorial basis.¹ While power is devolved by the Nation-State, the Nation-State remains the sole sovereign authority. A more interesting, and useful example of the exercise of dual sovereignty is that of Bolivia where a new Constitution provides for the recognition of indigenous nations within the Nation-State. These examples demonstrate that sovereignty is not the monolithic, all-encompassing power hinted at in the definition provided by the authors of Black.

The shared exercise of power exampled above all depend on fixed boundaries. To what extent can these examples provide a legal and theoretical framework for the exercise of sovereignty by a community over members of that community? What examples exist of such community sovereignty existing in contradiction of the apparently fixed territorial sovereignty of the Nation-State paradigm? These are the questions which this thesis will address.

Undertaking an analysis from an Indigenous perspective, this thesis will seek to explore these questions and discuss the concept of a community-based sovereignty rather than a territory-based sovereignty. Article 3 of the United Nations Declaration of the Rights of Indigenous Peoples provides that “Indigenous Peoples have the right to self-determination”. Article 4 provides that “Indigenous Peoples, in exercising their rights to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.” To uphold the ideal of the United Nations Declaration of the Rights of Indigenous Peoples requires a movement away from the idea of sovereignty as territory-based to sovereignty based on a community of interests.

Research Context

Every thesis should be seen in the context in which they are written, and this is no different. I am a descendant of Te Ātiawa and the discussion of a community-based sovereignty is therefore not being undertaken in the abstract. A community sovereignty model is of great practical importance to indigenous peoples, to Māori, and to my own Iwi of Te Ātiawa.

Prior to 1840, Māori exercised absolute authority and control over Aotearoa. We were sovereign in every sense of the word. The arrival of Pākehā in the 19^th century began to erode such absolute authority, and the signing of Te Tiriti o Waitangi led to the displacement of Māori authority in favour of British, and subsequently Pākehā settler, control. One common theme of the meaning of Te Tiriti o Waitangi, at least from the perspective of those Māori who signed Te Tiriti is that it was represented as created a dual jurisdictional framework whereby Māori would continue to exercise their tino rangatiratanga over Māori communities, land, and tāonga. This theme will be explored in this thesis, alongside the de facto exercise of power in New Zealand during the late 1800s, to argue that New Zealand has already existed under a dual community sovereignty model. 170 years on and the Government of New Zealand actively assert their position as the sole sovereign power, in contradiction to both the Māori perspective of Te Tiriti o Waitangi and the rights guaranteed to Māori under the United Nations Declaration on the Rights of Indigenous Peoples.

This research will be conducted against the backdrop of two important constitutional discussions in New Zealand. The first is the work of the Government-appointed Constitutional Review Group, tasked with conducting a wide-ranging review of New Zealand’s current constitutional arrangements. The second is the expected release during 2012 of a Report of the Waitangi Tribunal inquiring into the nature and effect of He Wakaputanga o te Rangatiratanga o Nu Tireni (The Declaration of Independence 1935) and Te Tiriti o Waitangi 1940. The Waitangi Tribunal heard evidence of the “dual jurisdiction” theory of the negotiations surrounding the signing of Te Tiriti o Waitangi.

This thesis will, therefore, both build on the evidence presented before the Waitangi Tribunal and feed into the work of the Constitutional Review Group.

1. For example in the Federal/State systems of the USA, Canada, and Australia; and the devolution of power within the United Kingdom to the National Assemblies of Scotland, Wales, and Northern Ireland.

Friday Question

Something different for today.  I enjoy the emails I get and would like to begin canvassing readers on a range of issues relating to Te Ao Māori.  Here is my Friday Question for this week:

What is the single most important issue facing Te Ao Māori in 2012 and what should be done to address it?

Let me know your whakāro in the comments below.

Commentary on Newstalk ZB

For those who missed it last week, I spoke to Mike Hosking on the Newstalk ZB morning show about the consultation hui currently taking place in relation to the inclusion of a “treaty clause” in proposed legislation providing for the mixed ownership model of State-Owned Enterprises.  You can listen to the interview here.

Section 9 Submissions Open

The Government yesterday opened submissions on the proposed changes required to address the issue of the nature of Te Tiriti o Waitangi protections under the proposed mixed ownership model for State-Owned Enterprises.  You can download the discussion document here.  Submissions close at 5pm on Wednesday, 22 February 2012.

I have had an initial read of the consultation document and will comment in more detail once I have had an opportunity to read the document in full and consider the best legal approach to this issue.   There is a lot of ill-informed and emotional responses to this issue, no doubt being driven by opponents of the National Party and, for that matter, the Māori Party, who have not taken the time to read the proposal in full and consider the legal and political implications of the proposed options.  I will look to add a reasoned argument to the debate late next week.