Posted on March 6, 2024
By Judge Anthony Willy Anthony Willy is a Barrister and Solicitor, who served as a Judge onfour Courts: District, Environment, Tax and Valuation. He is a former Lecturer in Law at Canterbury University. He presently acts as an Arbitrator, a Commercial mediator, a Resource Management Act Commissioner, and is a Director of several companies. --------------------------------On a plain reading of the treaty document anything less conducive to the notion of a partnership between the signatories is difficult to imagine. It is therefore necessary to look elsewhere to find what breathes life into this myth. No recourse can be had to International law because the document is not a treaty. International law only recognizes compacts entered into by sovereign states. Those inhabitants signing did not exercise sovereignty of these Islands in 1840. That they did not sign as Sovereigns of New Zealand is clear beyond doubt because a number refused to do so including the representatives of the Ngapuhi tribe. If what was agreed in 1840 is not and never was a treaty it can only be construed as a simple agreement between the signatories. Like all contracts it was and is to be observed in good faith. The fact is the Māori signatories had and continue to have a duty to cede to the British Crown sovereignty which includes all property which they individually or collectively possess. This is no different from any other subject of the Crown in relation to land ownership. We none of us own our land absolutely we hold it in an estate in fee simple from the Crown, but our title is good against the whole world. So, it became the case for the Māori inhabitants. Ownership of their land was guaranteed and only the Crown had the right of purchase. This has been well understood since the time of the signing. It conferred valuable benefits on the Māori population. They became British citizens enjoyed the benefits of the Rule of law and the protection of the Crown from any other foreign incursions of the like of the French, Spanish Dutch, or Portuguese. All of which were aggressive colonial powers at the time. Then there is the plain fact that it was and is constitutionally impossible for the Crown to enter into a partnership with her subjects. She can as she did in 1840 make promises to them but by definition, the Crown is supreme, and the people are subject to her laws albeit under the then British system of parliamentary government. This has been and remains the position to the present time. The Constitution Act 1986 provides that: S. 2 The Sovereign in right of New Zealand is the head of state of New Zealand and shall be known by the royal style and titles proclaimed from time to time. Currently the Sovereign of New Zealand is King Charles III. By definition it is impossible for him to share that Sovereignty with any other person or body of persons. To do so would mean he was no longer the sovereign in terms of s. 2 above. The position and status of our Sovereign has been so well understood for the better part of the last two hundred years, that it is demeaning to have to explain it. But then there are none so blind as those who will not see. And that brings us to: The State- Owned Enterprises case. As noted, there is much talk among Māori activists and their camp followers that there is legal authority for the proposition that the treaty document constitutes a “partnership” between an indeterminate group of those claiming Māori antecedents and our sovereign government. The case relied on is the 1987 decision of the Court of Appeal in the State-Owned Enterprises case. It is therefore important to understand what that case does decide. The background is that the Labor Government in the early 1980s decided to bring a defined group of hitherto state- owned activities into a new business model, and to this end introduced into Parliament legislation giving effect to that policy. The bill as amended contained a provision that in transferring any of the named assets to