Karen Feint: King's Counsel member among senior legal minds urging the Government to ditch Treaty Principles Bill

42 members of the King's Counsel, some of New Zealand's most senior legal minds, are calling on the Government to abandon the Treaty Principles Bill.

The group has written a letter to the Prime Minister and attorney-general Judith Collins outlining their 'grave concerns' about the bill - claiming it 'seeks to rewrite the Treaty itself'.

One of the signatories is Karen Feint KC, and she says the bill will erase several key Treaty principles.

"You can't just rewrite the constitution of New Zealand without having a proper dialogue about it."

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Episode Transcript

Speaker 1 (00:00):
Heather Duper c L forty two members of the King's Council,
which is the country's most senior legal minds, are calling
on the government to abandon the Treaty Principal's Bill.

Speaker 2 (00:08):
Now.

Speaker 1 (00:08):
They've written a letter to the Prime Minister and the
Attorney General Dutith Collins, saying they've got grave concerns about
this piece of legislation. Karen Faint is one of the
signatories and with us.

Speaker 2 (00:17):
Now, Hey, Karen, Kilda, give evening.

Speaker 1 (00:21):
Karen, is it fair to say that your primary concern
here is that what would happen if this bill was
to become law was that it would rewrite settled law
around what the treaty principles actually are.

Speaker 2 (00:32):
Yes, that's absolutely right. In fact, they would not only
rewrite the treaty principles, that would rewrite the treaty itself.
And that's unilaterally rewriting a treaty without the agreement of
the treaty partner, which is MARII.

Speaker 1 (00:47):
How would it rewrite the treaty.

Speaker 2 (00:50):
So what they're doing as trying to arrange the Maori
writer of Tina Ranger Ta Tunga under Article two of
the treaty. That's the effect of the Treaty Principles Bill,
and that means that the right of self determination that
may have in relation to their communities, their properties and

(01:12):
their tongu is no longer recognized.

Speaker 1 (01:16):
But is it not recognized in the treaty settlements in
that if you if you retain a piece of land,
if you've given this piece of land back you retain.

Speaker 2 (01:25):
Over it, you do. But that's the pre settlements are
very limited in terms of the political authority and self
determination rights that they grant to Ewi. So the I
think Mali would say that tong ta Tunga is about

(01:47):
much more than that. It's about having the right to
be Maori and to govern for your own communities, according
to Tea Kung, and that that's something that they have
had promised to them donating or had guaranteed to them
in eighteen forty and that David Seymour is trying to erase.

Speaker 1 (02:12):
And so under the existing treaty principles, how do we
recognize that right beyond property?

Speaker 2 (02:20):
So under existing treaty principles they're recognized through over forty
pieces of legislation, and there's also recognition in the decisions
of the courts of New Zealand.

Speaker 1 (02:38):
I'm kind of looking for an example of how we
actually use it practically well.

Speaker 2 (02:42):
For instance, in relation to the Resource Manment Act, it's
recognized in the Acts that the relationship of Maori with
their lands, waters and other resources as a matter of
national importance.

Speaker 1 (03:00):
Now, the thing about it is, Karen, doesn't Parliament always
pass laws that rewrites settled law because that's their job.
They literally pass.

Speaker 2 (03:10):
Law, it is their job. But the difference here is
that we're talking about constitutional arrangements. So the Supreme Court
has said that the treaty is it has constitutional significance
and that's recognized in the Cabinet Manual as well as

(03:30):
that guides the way executive government makes decisions. And what
we're saying is you can't just rewrite the Constitution of
New Zealand without having a proper dialogue about it.

Speaker 1 (03:46):
But it's not actually the Constitution of New Zealand.

Speaker 2 (03:49):
Is it as part of the unwritten constitution? Absolutely, that's
what we're saying. The Treaty is recognized not only in
our law, but it's also part of the constitutional arrangements.

Speaker 1 (04:01):
Okay, So if we accept that, so at what do
you need to be able as a group of people
in twenty twenty four in the country. What the threshold?
At what threshold can we adjust our constitutional documents?

Speaker 2 (04:17):
Well, if you're talking about changing the treaty, then we
would say it's fundamental that you have to engage with
Maori because they're the parties to the treaty along with
the Crown.

Speaker 1 (04:31):
Okay, So just to be fair, right, we're not changing
the treaty, we're changing the interpretation of the treaty. And
even at that point, because you believe the treaty is
a constitutional document, you need to in order to do that,
engage with the other signatory. Yeah.

Speaker 2 (04:45):
Yeah, absolutely.

Speaker 1 (04:46):
When the courts made their decisions that have led us
down this path that take us to where we stand
with the treaty principles, did they engage at every turn
with the other signatory. But what I'm trying to get
to is why why can the courts interpret the treaty
on our behalf but Parliament can't.

Speaker 2 (05:09):
The courts interpret the Treaty on our behalf because Parliament
has incorporated the Treaty into a range of different statutes
and so.

Speaker 1 (05:18):
So once again the power lies parliflation.

Speaker 2 (05:22):
The power lives with Parliament to pass legislation, but in
relation to matters of constitutional significance, we're saying you can't
just amendos. No.

Speaker 1 (05:38):
But what you're also saying, any care, eliaments, what you're
saying to me courts can. Courts can amend it because
Parliament gave courts the right to by putting it into statute.
But Parliament can't do it itself.

Speaker 2 (05:51):
No, I'm not saying that at all.

Speaker 1 (05:53):
Oh, that's what that sounds.

Speaker 2 (05:55):
No, the courts have a role of bringing the legislation
that Parliament has passed. But what I'm saying is, well,
what we're saying as a group is when you have
a discussion about the constitutional arrangements of our country and
we have an unwritten constitution so it's not as clear

(06:19):
as it might be with the American Constitution where it's
written in text, we're saying that that needs to be
a proper, respectful dialogue, not only with Maori, but with
all New Zealand.

Speaker 1 (06:35):
Isn't that what we're doing? Like, isn't that what a
six month select committee process is. It's a respectful dialogue
with everybody.

Speaker 2 (06:42):
No, Because because David Seymour's gone straight to the bill
and drafted the bill without engaging with the experts.

Speaker 1 (06:50):
But that's that's how parliament works. You generally turn up
with a piece of legislation, you have a discussion at
the select committee stage, you amend it to reflect what
everybody says, and then you pass it if you can.

Speaker 2 (07:03):
Yeah. Absolutely, And I'm not I'm not saying that that's
not the way that works. That's how legislation has passed.
But we're saying when you have constitutional issues that needs
a much broader conversation.

Speaker 1 (07:20):
Okay, nationally, right, Karen, thank you. I really appreciate you
just flashing out those issues for us. Appreciated. That's Karen
faint Casey. For more from Hither Duplessy Alan Drive, listen
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