Principles

A meditation on a small corner of the Treaty principles discussion

Recently a good friend gave me a low-key wero – a challenge. This entry comes late because it was a serious one demanding real care: to comment in some way on the current “treaty principles” discussion.

To me, this discussion comes down to themes of belonging here, together with others, with respect for the past and with a view to the future.  So as one who set out in this series trying to comment on what this means to me, I’ll have a go.

As we all know, this can be an area where comment comes with such depth of feeling that even using the spelling above (by which I meant precisely nothing) carries the risk of being misunderstood.  So commenting is a vulnerable thing to do and I hope readers will extend me the generosity of spirit with which I comment – the kind of generosity Health Minister Shane Reti recently called for “and some”.

The following comments are on and around one narrow subject relevant to the discussion that I am familiar with. This is section 4 of the Conservation Act 1987.  My comments aim to give an example of the nuance and problems involved in interpreting strong but open-textured commands about the principles, the care required to navigate them, and possible implications for the wider discussion.

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Section 4 of the Conservation Act 1987 – the strongest Treaty clause

Section 4 gives some of the strongest recognition for the principles of the many “treaty clauses” going around.  It is stronger than the equivalent clauses in the State Owned Enterprises Act 1986, or SoE Act.  These became the subject of the now-famous Lands case when President Cooke of the Court of Appeal, later Lord Cooke of Thorndon, expanded in 1987 upon what “the principles” meant.

Section 4 is stronger than many other treaty clauses made before or since (see for example here or here).  It was the strongest until recently, and this might be of interest to those who see “the discussion” as a new thing, and perhaps threatening for that novelty. 

(As an aside, those interested in how and why New Zealand got this varied approach to incorporating the principles in legislation can readily research the issue for themselves.[1])

How is section 4 is stronger than other treaty clauses?  

Many other treaty clauses make the principles – irrespective of “what they are” – some kind of consideration for decision-making.  They make people think about the principles when making decisions to some stronger or weaker degree.  Some treaty clauses are weaker than this (see for example here).  Other treaty clauses, like those in the SoE Act, ask for a bit more than just consideration.  They make an appeal to “consistency” with the principles.  Decision makers must “stay close” to the principles.

Section 4 is a bit stronger again.  It requires that the Conservation Act itself “be interpreted and administered as to give effect to the principles” of the version of the Treaty in Schedule 1 to the Treaty of Waitangi Act 1975. 

Lawyers will query the impact of every single word in this formulation, but everyone can see that “give effect to” is different to some version of “think about” or “do something like” the principles.  Indeed the Supreme Court thought section 4 to be “strong”, which we’ll come to below.

Strong but vague

But Courts and legal commentators have long recognised that section 4 creates a strong command that is at the same time vague.

It was for this reason that in 2020, many years into the long lead up to the enactment of the now-defunct RMA replacement (the Natural and Built Environment Act 2023) that the “Randerson Report” made recommendations about this “strong / vague” treaty clause issue.  The story is long and winding, but in short, the Randerson Report suggested making a strong treaty clause while giving some shape to, or putting some flesh on the bones of, this obligation in various ways.  In this way the vague dimension could be clarified.  For the same reason, Environmental Defence Society has recently said much the same thing about the recognition of the treaty in any replacement Conservation Act – and therefore replacement of section 4 itself.

Such attempts at clarification are not new.  The strong/vague issue was recognised in the 1990s and legislative attempts to give clarity on the strong application of the principles started in about 2000. [2]  Recent examples have often followed along similar lines.[3] If section 4 is “strong but vague” these attempts might be attempts to make treaty clauses that are “strong but more fully articulated”.  

No doubt one difference in today’s discussion is a perception that the aim is for “weaker and more fully articulated”. (Some say this is the reality – I’m not a mind read reader, so I won’t guess. As a second aside, those concerned about weakened treaty recognition, or those who want to see that, might wish to reflect on 1992 Cabinet advice that weakening the recognition for the treaty would have been very challenging even back then, let alone today.[4])

Getting past “strong but vague”

If we have A) a “strong but vague” recognition of treaty principles; and B) a desire for more clarity; and C) no apparent legislative clarification on the table, we are going to struggle to get clarity. 

Hopeful though some are of conservation law reform, the above seems to be the situation for section 4.  So what do we know about what section 4, our strongest treaty clause, actually means?

A few years ago and out of curiosity, I got into this struggle. I tried to obtain some clarity on the Department of Conservation’s position on section 4 (as I’ve said before, I need to get out more).  Perhaps needless to say, the Department was not forthcoming in its response to this private citizen.  It said that legal advice attracts privilege, and told me to go away.  But I was genuinely interested, and DOC told me after much jinking, jiving, and Ombudsman involvement that it was not persuaded the public interest in my seeing its advice outweighed legal privilege – a good reason to withhold information under the Official Information Act or OIA.

Fair enough – and I suppose DOC might have suspected my motivations too.  There are indeed a lot of axe-grinders out there with agendas, and I could have been one of them.  DOC was also running a process at the time called the “Options Development Group”, or ODG, which took in section 4 issues. The ODG eventually came up with this report – something that would no doubt have annoyed some for its posture on treaty issues.

Today I look upon the OIA episode as one where I moved past some youngish naivete, but it is a shame that DOC weren’t forthcoming there is an “institutional void” in this area.  And there seems no doubt that a perceived vagueness and associated “creep” in the scope of the principles animates much of the public discussion in 2024.

Ngai Tai ki Tamaki case

Whatever people might want to say about the Waitangi Tribunal, the Courts are where we eventually have to go to clarify what the law means, and as it applies to actual factual situations.[5]

On section 4, the leading Court case is the August 2018 Supreme Court case of Ngai Tai ki Tamaki Tribal Trust v Minister of Conservation.[6]  (I will call this case Ngai Tai for short and I mean no disrespect in case the abbreviation is taken that way).  

How did Ngai Tai come to the Supreme Court?

Ngai Tai was an appeal relating to the grant of “concessions” under the Conservation Act.  Concessions are permissions for activities on conservation land, and DOC had given the concessions in issue to Fullers Group Limited and Motutapu Island Restoration Trust – they were permissions to operate guided walking tours on Rangitoto and Motutapu Islands in the Hauraki Gulf.

Ngai Tai Ki Tamaki Tribal Trust, the entity representing mana whenua, challenged DOC’s decisions to grant those concessions in a judicial review, on grounds relating to section 4.  As usual this started in the High Court.  But the High Court and then Court of Appeal ruled that while DOC had committed legal errors in its processing of the concessions, these errors were not ‘material’.  In simple terms those Courts thought DOC’s mistakes didn’t matter.  For that reason the lower Courts did not grant the Trust any “relief”.  The Trust had made its case about section 4 in lower Courts, and in that sense “won”, but the Courts gave it no real outcome for the trouble.  Unsurprisingly, then, the key issue on appeal to the Supreme Court was whether some kind of relief should be granted.

What the Supreme Court said about section 4

The case, then, concerns the relationship between section 4 of the Act, on which the Trust’s case was based, and the part of the Act dealing with concessions – this is known as Part 3B. 

The relationship between these two parts of the Act had been considered years before in the “Whales case” of 1995, which concerned concessions for whale watching at Kaikoura.[7]  The Court in Whales had found among other things that Kāi Tahu was “in a different position in substance and on the merits from other possible applicants for [concessions to watch whales]. Subject to overriding conservation considerations and the quality of service offered, “[K]ai Tahu are entitled to a reasonable degree of preference.”[8]

Ngai Tai applied the reasoning in the Whales case to the concessions situation on Rangitoto and Motutapu.  By a majority of 4 – 1, the Court allowed the appeal, giving “relief” in a form common to judicial reviews – of “quashing” the concessions and directing that they be reconsidered in light of the judgment. 

The Supreme Court also made the orthodox observations that effect of section 4 would depend on the circumstances of any given case – the provision did not exist in a legal or factual vacuum.[9]  This was something the Courts had commented on before in relation to section 4,[10] and it is just as well because these are the kinds of observations we might hope any LAWS101 student could remind us about.

Finally, as often happens in appellate Court decisions, the Court went beyond the particular factual and legal circumstances and offered some more general guidance.  Lawyers debate whether such guidance is or is not “obiter dictum” – a non-essential judicial utterance – or whether it will formally bind lower and later Courts.  I don’t want to get into that here, but just to table the difference between ideas of “general guidance about hypotheticals” and concrete applications of law to real factual situations.

I paraphrase a bit, but the Supreme Court in Ngai Tai it made the following general observations about section 4:[11]

• It was “powerful”,
  

• It requires “more than procedural steps” including potentially “substantive outcomes” like declining others’ concession applications in some circumstances, and
  

• Giving practical effect to the principles (as section 4 requires) could include enabling iwi or hapū to reconnect to their ancestral lands by taking up opportunities on the conservation estate (whether through concessions or otherwise),

• In applying s 4 to a decision relating to a concession application, DOC must, “so far as is possible”, apply the relevant statutory and other legal considerations in a manner that gives effect to the relevant principles of the Treaty, and shortly afterwards a similar observation about “best giving effect”.

Separate to these general observations, and in another part of the judgment, the Supreme Court commented on a piece of text in DOC’s Conservation General Policy or CGP.  This was very significant to DOC, because the CGP implements the Act in detail.[12]  At the time, the CGP had said that:[13]

“….[w]here, however, there is clearly an inconsistency between the provisions [the Acts administered by DOC] and the principles of the Treaty, the provisions of the relevant Act will apply.”

On this text, the Supreme Court said:[14]

“We disagree with that statement, which effectively says s 4 is trumped by other statutory provisions. As noted earlier, what is required is that those other statutory provisions be applied consistently with the s 4 requirement.”

What people said the Supreme Court said – and what do I think about that?

A Cabinet paper after Ngai Tai said the case confirms and “build[s] on previous case law on the allocation of commercial opportunities on public conservation lands and waters…”.[15]  This seems a conservative but correct reading of the concessions part case.  It doesn’t cover off the CGP part, which we’ll revisit below.

In contrast and perhaps tension with Cabinet’s view, DOC’s Director-General at the time said enthusiastically that the case represented the need for a “sea change in the way [DOC] operates”.[16]  This always seemed strange to me, being an effective admission of major shortcomings over 20+ years since the well-articulated position in the Whales case – a situation for contrition as much as enthusiasm.  Strange positioning or not, though, it made sense that Ngai Tai should be heavily or solely referenced in DOC decisions made soon after the case to review the CGP.  It also made sense to pause national park plan review processes. Pauses could be used to work out the implications of the case on the relationship between section 4 and management planning processes under Part 3A of the Act and the National Parks Act 1980, something on which Ngai Tai itself said nothing at all.[17]

Others have made what seem to be larger claims for what Ngai Tai means, usually citing the Supreme Court’s CGP and “primacy” comments, quoted above.  For example, former Conservation Minister Kiri Allen has said that “section 4 is crystal clear”.  The implication seemed to be that the “power” and “primacy” dimension of the provision should always imply some flavour of answer to every interpretation question about the provision.[18]

Of course, being a lawyer, Allen would have known that “we do not know” in advance “what answer” section 4 will give to any question about the interpretation and administration of some provision of the Conservation Act.  We can only really know once a Court visits upon a concrete factual situation.  In other words, Allen’s comment took the Supreme Court’s “general observations” – which were significant indeed – and still somehow over-blew their implications to some extent.  There must be strong temptations for politicians to conflate “older laws as they are” for “the law they would now like it to be” – one wonders if Allen was making this conflation.  If indeed she had particular desires for conservation law, a sound solution would have been to convince Parliament that section 4 should be changed to clarify the “shape” of this strong position. Of course, Allen even enjoyed a high position in a government with a Parliamentary majority for a while.

Some problems with the Supreme Court judgement

The treaty / concessions part of Ngai Tai is legally orthodox.  Where the case is perhaps less orthodox is with respect to its Conservation General Policy comments, mentioned above.  There are, I think, four problems with these comments.

First, a notion of “trumping” is perhaps an unfortunately crude shorthand.  It implies that section 4 should have primacy over other provisions of the Act, which goes together with a “strong” notion.  But something can have primacy only over things of the same kind.  And section 4 – about institutional bi-cultural policy – is doing something different than conservation, which is done by assigning various conservation functions to DOC, as say in section 6.  To illustrate the point outside of law, we might think of a present example of things that are alike, and where trumping and primacy “work”:  is Luna Rossa faster than Britannia?  Will either prove faster than Te Rehutai in October’s America’s Cup?  Or we might think of a classic example where an idea of primacy doesn’t really “work”:  is an orange better than an apple?  This is more like the way section 4 relates to other parts of the conservation law – more on this soon.

Second, the CGP comment is difficult to fault on legal first-principles.  If we say Acts of a sovereign Parliament are our highest source of law, and an Act sets out a “clear inconsistency” with the principles of the Treaty, many would agree that there is an undesirable situation.  But almost no one would say that an Act is not allowed to say such a thing, or that if it does, a Court should read it down.  Those who do are calling for something like a constitutional revolution in which Parliamentary sovereignty is meaningfully pulled in, and the position of the Courts much elevated.[19]  That’s a view people are allowed to hold and call for within widely-known bounds - but history demonstrates that that kind of idea can really only be “made to stick” either with violence, or if spades are called spades and enough people get behind the new idea. Ngai Tai was nowhere near that.

The way things are now, issues of consistency between Acts and the principles will always turn on the specific relationship between parts of the law, and their relationship with facts, just as the Supreme Court showed elsewhere in Ngai Tai.  The corollary is that talking in the abstract about the “primacy” of some provision, even a strong one like section 4, is not helpful – not for me or, perhaps, for the Supreme Court.

Third, the CGP text appears to come directly from the Whales case which the Supreme Court built on in Ngai Tai.[20]  The Supreme Court didn’t seem to give any indication it had spotted this, so this feature of the case raises various questions.  For just one, if the Whales case was built on the reasoning taking in the CGP text, and Ngai Tai built on Whales, does Ngai Tai’s disagreement with the CGP comment undermine the case’s own foundations?  

All the more surprising in this vein is that Whales text was written in 1995 by President Cooke himself, a time when he was long established in the treaty principles case law.  One wonders if the Supreme Court was intending to move on from Cooke and Whales or not?[21]

Fourth, the water is muddy.  There does seem to me at least one good reason for the Supreme Court to have made its CGP comment, one the Supreme Court would have been sensitive to, but did not state directly.  This reflects another aspect of legal orthodoxy to do with ‘institutional comity’ or ‘the separation of powers’: ie to do with what different branches of government can and should do. 

The basic outline of this reason is that the CGP is a statutory document made by an executive agency, DOC, and designed to implement policy.  Instead, in the CGP comment the Supreme Court didn’t like, DOC had purported to set out a statement about what the law means.  In simple terms, this was to do something that is the Court’s constitutional role, and not a government Department’s.

What do I think Ngai Tai means?

Through Ngai Tai we know a fair bit about what section 4 means for concessions. But we have seen some reasons why it is not wise to generalise further without taking great care.  

But even in this narrow beam of light cast by the case, its orthodox section 4 / concessions aspect, about the most the most that can be said are statements at this kind of level:  in practice if there are limited numbers of concessions available in some place – for example because we want to avoid over-crowding or ecological harm – it may mean would-be tangata whena operators come to, or towards the front of, the resulting concessions queue.  This seems likely to be the way things will go at Tongariro, Aoraki-Mount Cook, or Piopiotahi / Milford Sound. (Obviously some take issue with that kind of idea – and again their solution should not be of the Kiri Allan ilk of suggesting the law is different than it is – it should be to convince Parliament and electorate the law is worth changing.)

As to the other aspects of the case, areas outside that beam, I think the “primacy” comments are not all that sound for the reasons above.  It would be a welcome area for some legislative clarification, and the operational situation for DOC and those dealing with DOC is almost untenable.  For example and as we have seen, Ngai Tai must mean something for DOC’s management planning, but what it means is not at all clear to the public.  That’s why it has been unfortunate that DOC haven’t wanted the public to see what it thinks, as I found out through my OIA snafu. But judging by the slow progress in updates, section 4’s application to management planning may not be clear to DOC either.

For clarity, I think it is inarguable that section 4 is anything but “strong”.  We know it will also have “substantive” implications like the concessions one mentioned above.  It almost certainly means mana whenua should have strong input in management planning too - but we don’t know any more detail than that.

More generally, some may think there is a valid place for strong institutional bi-culturalism in conservation law, as I do, and some may not.  But whatever we think, section 4 is not a purpose of the Conservation Act at the moment.  The purpose of the Act is set out in a long title, and perhaps in DOC functions.

Seen in this way section 4 could be mostly[22] about shaping not “what DOC does” but “how DOC does what it does”.  Those who worry that this may be some kind of “weakening” may like to reflect that how we do things is almost always as important as what we do: tika and respect. And if they worry that anything but “primacy” is not enough, they might also reflect that orange juice with an apple base is very good indeed.

Where Ngai Tai leaves us

Readers – those of you who are somehow still enduring – will have noticed this post descend into a very long legal commentary.  Lay readers may find it too detailed, lawyers perhaps frustrating for some inaccuracy or over-compression.

Recall that this happened because we wanted to get past the strong / vague issue with section 4.  We had to go to Court decisions to help us do that.  We went to the key decision, and then went to town on it.  All this took me many years to understand and days coming and going to write it down here.  It took readers 15 minutes or more to read. 

The length had a point: it was to show that in arriving here - and having taken significant care - we are still left with section 4’s strong / vague problem unresolved.   

Of course, a “strong / vague” arrangement is never going to be ideal, and some reform seems desirable.  It could bring te ao Māori perspectives closer to the heart of conservation law - closer to both what DOC does and how it does it.  I think the law could benefit a great deal from a fusion of current American- and British-derived conservation law concepts with te ao Māori ones (perhaps more another time on the origins of our conservation laws).  If true Lex Aotearoa[23] - developing a unique law for our country - doesn’t hold promise in the way we articulate our relationships with our conservation whenua, it doesn’t hold promise anywhere.  But while for many the conservation law we have is not the law we want, a bigger taonga is at stake in adhering to the rule of law, so it is important not to ask too much of section 4 right now.

We might see this point from another currently newsworthy angle too: if some want section 4 to do more than it can, if they want to use its open-texture in some way, what is to stop others doing exactly the same with other things? This has been exactly the situations with those would push the vagaries of the “stewardship land” provisions too far and potentially mine waste sites as well as pristine ones. (More on stewardship another time also.)

What about the implications for Treaty Principles Bill discussion?

One final reflection on Ngai Tai is that it signalled many questions about the future operating model for DOC.  But it has answered only very few.  Some wanted Ngai Tai to tell us everything, but it never could have.  Those people asked much more of a single Court decision than any can deliver. 

We have also worked through a case where too little clarity in the law isn’t working.  Sometimes these things can show us something of their inverse, so I’ll finish by talking about a desire for too much clarity.

Ngai Tai is about what it means to “give effect” to the principles in a very narrow situation.  In this sense, it is just about a “verb” in a law for conservation land.  The ongoing Treaty Principles Bill debate is much wider.  It is about “the verbs”, the “nouns” – what the principles are – and related questions across our entire national life.  The Bill process may or may not be the best way to table the issues its proponents intend to raise.  Some feel vehemently that it is, others equally vehemently that it is not.  There does not seem to be a common ground on the way to hold the discussion. Nor does there seem to be much agreement about its substance: who should get to define the principles, the extent to which they can and should be defined, and what they are.

There is lots to be said about all of these questions, and lots is being said.  But whatever the contours of the discussion, to me a call to clarity seems to animate a lot of each side of the discussion.  I would go so far as to say that the call to clarity seems – almost – to be common ground, as it is in many areas of modern life. 

Any island of common ground seems welcome in the current discussion. But there are ancient tales about sirens on rocks, and any navigator knows to take the most care near shore. If the island we alight upon is named Clarity we should perhaps be cautious about erecting and over-engineering foundations there, because in time we might find that the of hard-edges of clarity prove too brittle for the unknowable future they will have to deal with.

Clarity is a dimension in Parliamentary Counsel Office’s legislation drafting guidelines.  And clarity, is, after all, an aspect of the rule of law.  But we all know that there are thresholds beyond which clarity can’t be had.  Living with full clarity is either to be deceived, or not to live at all. 

The law seems rarely to judge a desirable limit for clarity, or even perceive that there may be one.[24]  If asked about desirable levels of clarity, the lawyer’s answer always seems to be “more”, right up to getting a written constitution. But the answer cannot always be “more”. To give four examples I know of recently:

• An EQC process intended to deliver fair, timely, and enduring settlements to claimants.  A detailed and mechanical elaboration on these three principles is still seeing thousands of claimants essentially and involuntarily gambling with their futures over many years, and a decade after the relevant natural disaster.  Even those who “did materially well” had to go to dark places to get there, including due to uncertainty. (!) But they can’t talk about the details, having been made to sign non-disclosure agreements, and other opportunities for feedback are next to nil.

• An ACC process denied someone cover for a serious back injury sustained when falling over, a clear case for coverage.  Ostensibly this was because the initial doctor’s notes didn’t contain a single but magic word. (Required by a detailed elaboration? - the person was never to know.) The claim was reinstated straightforwardly, but only after engaging a specialist barrister – one wonders how many could have afforded to do this, nor how many will have future coverage issues resulting from similar declines as they age.

• A play raised profound issues with the legal sexual assault cases, touching heavily on issues at heart about ways of, and standards for, certainty.  It won awards, no doubt because all could see it was pointing to something real.

• A friend wanted to make a simple contract for a simple business dealing. The other party’s lawyer wanted an elaborate contract. Fees ensued.

Is anyone – Māori or otherwise – really going to benefit from treaty principles that are more closely articulated, but articulated in the abstract?  Ngai Tai gave an example of not enough clarity, but what is “enough” clarity in this area, and where do we want to find it?  Will the character of clarity be explicit, or might we only know it when we see it? Doesn’t everything that is really important escape the grasp of words, let alone written ones? Can we ever achieve clarity in the way we belong together here on our islands through words laid down in Parliament, or are we better perhaps to look elsewhere – the marae, club, or church; the forest, the field or the sea; even one-another?

Thanks for your interest in Brenty’s Two Cents.

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[1]                  Start with Palmer, M S R, The Treaty of Waitangi in New Zealand’s Law and Constitution, V U W Press, Wellington 2008 at pp 95-96.

[2]                  See for example the arrangements in the New Zealand Public Health and Disability Act 2000.

[3]                  See for example section 9 of the Education and Training Act 2020.

[4]                  Cabinet Strategy Committee Paper, ‘The Crown’s Obligations under the Treaty of Waitangi”, 20 March 1992, CSC (92).  I have not read this myself though I understand it has this tenor.

[5]                  In saying this I mean precisely no criticism no praise of that permanent commission of inquiry.  This view is also contra some eminent commentary, which can go as far as suggesting Parliament has “delegated interpretation of the Treaty” to the Waitangi Tribunal:  see Palmer (2008), noted above, at p 90.

[6]                  See Ngai Tai Ki Tamaki Tribal Trust v Minister of Conservation [2018] NZSC 122.  Interestingly, and if I am not mistaken, current Conservation Minister Hon Tama Potaka was connected to the plaintiff trust in this case.

[7]                  Ngai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 (CA) (“Whales”).

[8]                  See Ngai Tai at [52], citing Whales at [p 562]

[9]                  See for example Ngai Tai at [64], [92], and [54] and [55] respectively.

[10]                 See for example Ngatiwai Trust Board v New Zealand Historic Places Trust 15/10/97, Hammond J, HC Auckland HC3/97 (No 2), [1998] NZRMA 1

[11]                 Ngai Tai at [52]-[55].

[12]                 See section 17B of the Act.  The current CGP including amendments, is available here.

[13]                 Department of Conservation, Conservation General Policy (revised 2007) at 15

[14]                 Ngai Tai at [77].

[15]                 “Responding to the Ngai Tai Ki Tamaki Supreme Court Decision and Giving Effect to Treaty Principles in Conservation.”

[16]                 Refer to various releases and YouTube videos released by the Director-General in 2018 and 2019.

[17]                 DOC had explicitly cited Ngai Tai as the first of three “main drivers” necessitating the need for its CGP review alongside two other reasons of political impetus: see Giving Better effect to the Principles of the Treaty of Waitangi – June 2020 here.  It had also cited Ngai Tai (in one of two slightly differing explanations) as the reason for the pause of the Aoraki Mount Cook and Westland Tai Poutini National Park Management Plans. See media release of 4 February 2020 here.

[18]                 I regret that I cannot find the citation for this, and that I am relying on memory here.

[19]                 There are well-known New Zealand Court decisions touching on limits to Parliamentary sovereignty, but these signal the issues directly.  Ngai Tai did not do this and nor did Cabinet seem to perceive any such shift at the time.  I am not aware of later commentary reading the case this way, and I would be grateful for readers to point me to anything they might have read.

[20]                 See [1995] NZLR 553, 558 at line 30-35. No doubt a review of CGP drafting documents – which I have not done – could confirm this origin.

[21]                 This again comes back to the issues discussed in note 15 above.

[22]                 This caveat has to do with the possibility for substantive implications, which could usefully be sketched in public discussion.

[23]                 See the 2013 Henry Harkness Lecture by Supreme Court Justice Joe Williams here.

[24]                 Those interested in thinking about this might consider listening to the 2019 Reith Lectures by UK jurist Lord Jonathan Sumption.