Guest Post: Should the Treaty govern lawyers’ services?

A guest post by Roderick Mulgan:

Joining a professional group entails submitting to its prescripts. Along with a lawyer's duty to uphold the Rule of , the New Zealand Law Society has floated a new statutory duty for lawyers – to discharge their duties in accordance with the “principles of Te Tiriti o Waitangi”.  This will surprise many people and lawyers see real dangers in this proposal have until May 31st to put submissions to the society.

Oddly, the Treaty proposition arose from examining recent sexual misbehaviour in the profession. But the society's leadership adopted investigative terms of reference well beyond that issue, established an ‘independent review panel' and staffed it so it was likely to champion ideological reforms that most lawyers do not endorse.   

The review panel's report admits a clear majority of lawyers who were surveyed and expressed a view are opposed to importing Treaty principles into their regulatory structure – but the authors are undeterred. The report's slant is not surprising when one sees that the panel included an academic who also co-authored the government's He Puapua report, which report was hardly supportive of majoritarian rule. 

This project to include such Treaty references into the ‘lawyers' code', pretends that the scheme does not trample across a highly contentious area of party-political debate, when it obviously does.  Treaty-principles endorsements pervade the lexicon of parties on the left and attempting to infuse ideologically-partisan positions into its statute should not be on the of a professional body with a membership that holds beliefs spanning the political

It has become fashionable for the Treaty to be slotted into all manner of official pronouncements and mission statements. However, while vague concepts might suit the politically progressive, Law is about accurate and circumscribed concepts. Working out what the Treaty principles might actually be is a fraught exercise, with no widespread legal or community consensus. 

If Treaty adherence is to become obligatory, lawyers will need to sort that meaning out, particularly if they could be disciplined for non-adherence. So what might follow for legal practitioners, who are ethically required to advance anything credible that might help their clients, regardless of personal (and political) feelings?  

Commentators, and not just the most radical ones, regularly assert that the chiefs who signed the Treaty did not relinquish sovereignty.  This is especially so for theorists who prioritise the Maori version – ‘Te Tiriti' – over the English text, which is the terminology the Law Society report prefers. 

The commonest modern Treaty-principles interpretation routinely articulated is that the Treaty created a partnership between two races. This stumbles on the obvious problem of how Maori citizens can partner with a government that represents everyone, including Maori citizens. Partnership actually requires two parties that are separate and that is where the logic of contemporary Treaty activism is leading – racial separatism. The end game in this long march of treaty activism through the institutions is to inculcate into our legal system this ideology. If the Treaty gets imported into the heart of legal system, this activism will have laid an enormous landmine in the underbrush. 

Might lawyers, obligated to insert treaty principles into their practices, be obliged to submit that His Majesty's courts no longer have jurisdiction over their Maori clients?  Might lawyers be hog-tied in representing landowners who face claims against their land constructed on Treaty-based arguments? Might clients lay complaints about counsel who decline to go down these paths? The law has a way of following the path it gets set on, regardless of what might or might not have been intended.

The modern legal ‘meaning' of the Treaty was first given statutory imprimatur in 1986 when the government passed a bill to transfer state forests to separate entities. Maori objected, as some of the land was subject to Treaty claims, so a statutory clause was inserted requiring the Crown to act consistently with Treaty principles. Most considered the move a quiet ‘fob-off' which would not make a difference, but the Court of Appeal subsequently gave the concept serious legal teeth. The judgment was also the first time the ‘partnership doctrine' was promulgated. 

The lesson with undefined terms is clear; don't put words into statutes if you don't want them to take on legal life. Because the statute will be used to give them that life. Lawyers who see where this Treaty-principles trajectory will ultimately land, have only a few more days to submit.

Roderick Mulgan is a criminal defence lawyer, medical doctor and author

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