Robin Cooke's Treaty Principles

Some readers and the odd hyperventilating blogger may need to breathe gently while receiving another wee reminder that the principles of the Treaty of Waitangi  were not written in stone on an ancient tablet brought down from the mountains. They were instead written in 1987 on yellow legal pad by one Robin Cooke, then president of NZ's Court of Appeal, and later to be canonised as a justice, gonged as a Lord, and then again as a Baron.

In the absence of any parliamentary guidance, for which we can blame Geoffrey Palmer, it was he who was asked to define what Geoffrey might have meant when he imported from Labour's 1972 manifesto the phrase "have regard to the principles of the treaty" — and he, therefore who, out of whole cloth, was led to declare that the Treaty "created an enduring relationship" between the parties that is "akin to a partnership."

The standing professional evaluation of Cooke's greatness ("a great judge; the finest we have produced") comes from Sian Elias. "His impact on New Zealand law," she said at his funeral, "has been immense." This is true. Not necessarily for the better. "His particular vision of New Zealand law was not without its critics," began one carefully phrased respectful tribute to his passing, "and at times those critics could be savage." And at times the criticism was much deserved." [1]

It's true, for example, that he "mapped out" the ultimate limits to parliamentary power. "I do not think," he said in 1986, "that literal compulsion, by torture for instance, would be within the lawful powers of Parliament. Some common law rights presumably lie so deep that even Parliament could not override them." [2]

This is good. This is very good. The problem with activist judges however, observed Damien Grant recently, "is that they rarely know where the line is. Cooke was so brilliant he was able to see what others couldn’t. Possibly, he was able to see what was never there in the first place."

It was he, for example, who decided that our courts should move away from following the common law of the Commonwealth, founded largely on precedent and the protection of property rights, and move instead towards creating new rights based on United Nations declarations and on judge's subjective and oft unpredictable notions of "fairness." He who declared, without the guidance of a constitutional foundation here, that it would nonetheless be the courts who would decide whether or not give effect to parliament's written law. He who decided that it is "the duty of the courts ... to ascertain the democratic will of the people." [3] He who can be considered "the instigator of judicial activism on the Treaty." [4] He who so interspersed decisions with political statements that parties had to page through carefully in case one missed the actual judgement. He who so merged the common laws with that of equity that it attracted the ire of Australian legal commentators for his "unprincipled decisions."

"The blame," for the destruction this caused in law,  even over the Tasman is, said some of Australia's leading judges, "largely attributable to Lord Cooke’s misguided endeavours." [5] Slating his disregard of “learning and principle,”[6] they deplored "that one man could, in a few years, cause such destruction exposes the fragility of contemporary legal systems and the need for vigilant exposure and rooting out of error.” [7] 

They could have been writing about Cooke's Treaty Principles.

[1] Geoff Mclay, 'Sir Robin Cooke,' NZ Law Institute

[2] Taylor v New Zealand Poultry Board, above n 39, 398 Cooke J. See also Keenan v Attorney-General [1986] BCL 1505 (CA)

[3] (Fundamentals, [1988] NZLJ 158)

[4] David Round, 'Judicial Activism and the Treaty: The Pendulum Returns,' Otago Law Review, (2000) Vol 9 No. 4, p. 654

[5] Preface – Fourth Edition, Meagher, Gummow and Lehane’s Equity, Doctrines and Remedies, p xi.

[6] Fourth Edition, Meagher, Gummow and Lehane’s Equity, Doctrines and Remedies, p. 839

[7]  ibid, p xi.