Pseudolaw - Part 1

A Contrarian Nuisance or an Existential Threat

This is the first of a three part series of articles about the phenomenon of psuedolaw. It is a subject that has attracted some attention, especially since the Parliamentary Protest of 2022. But what may be termed pseudolaw arguments go further back than that and have been presented to New Zealand Courts over the years and more frequently since the 1990’s.

The leading case on pseudolaw, however, comes not from New Zealand but from Canada. In the case of Meads v Meads, Rooke ACJ examined the pseudolaw phenomenon as it had developed in Canada and in his judgement wrote a field guide to the classification and identifying features of pseudolaw arguments that were being advanced by litigants.

A New Zealand academic, Stephen Young, together with two Australian academics wrote about the rise of pseudolaw in New Zealand as well as in Australia in their article “The Growth of Pseudolaw and Sovereign Citizens in Aotearoa New Zealand Courts” [2023] NZLJ 6. Theirs is a slightly more contemporary overview than that which I have undertaken, and in my view their conclusions on the relationship between pseudolaw and the phenomenon of sovereign citizens while valid in a general sense require a slightly more nuanced approach when examined in the light of the development of pseudolaw in the longer term. I disagree with their conclusion that pseudolaw is a right-wing phenomenon and for reasons that I shall advance in the third part of this series I consider the pseudolaw phenomenon to be an aspect of the Radical Left.

Introduction

In this first part of a three part series on the pseudolaw phenomenon I shall consider the continuing development and use of what has been referred to as Organised Pseudolegal Commercial Arguments (OPCA) or pseudolaw.

Pseudolaw is “is a phenomenon where the form but not the substance of legal argumentation is used to advance a party’s position” (Young, Hobbs and McIntyre “The Growth of Pseudolaw and Sovereign Citizens in Aotearoa New Zealand Courts” [2023] NZLJ 6). It has otherwise been defined as a collection of motifs that sound like law and often involve legal terminology but which lead to legally incorrect results or as a collection of legal sounding but false rules that purport to be law.

Pseudolegal arguments in Court were helpfully analysed and discussed by Rooke ACJ in the Canadian case of Meads v Meads [2012] ABQB 571. In that case the Judge categorised a number of pseudolegal arguments under the head of Organised Pseudolegal Commercial Arguments (OPCA)and I shall discuss these at a later part of this article.

Pseudolaw arguments have been present in the legal system for some time and in the New Zealand context were intermittently advanced in cases where indigenous sovereignty theory was being advanced.

However the use of pseudolaw arguments has increased and become a recognised phenomenon following the decision in Meads.

The issue of pseudolaw was the subject of an article by Thomas Bloy in 2013 (Thomas Bloy, “Pseudolaw and debt enforcement” [2013] NZLJ 47.) The author discussed Meads in the context of some contemporaneous cases. Since then the cases that have come before the Courts involving pseudolaw arguments have increased as observed in the article by Young et al (above) who link pseudolaw arguments with the Sovereign Citizen movement (if it can be called that) and suggest a sinister element to pseudolaw arguments.

In this article I shall start by considering some early examples of pseudolaw cases and then move on the discuss the taxonomy of pseudolaw as developed by Rooke ACJ in Meads. I shall identify some of the common themes underlying pseudolaw arguments and illustrate how those have been dealt with by the Courts.

I shall then consider the suggestion that there may be a sinister aspect to pseudolaw. I shall suggest that in fact pseudolaw is a manifestation of contrarian thinking within an anti-authoritarian context. I will suggest that pseudolaw within the Court context can be vexatious and a clog on Court time, resources and processes. But I will argue that pseudolaw, while a nuisance, is not an existential threat to the order of society.

Some Early Examples

There have been some early examples of what could pass as pseudolaw in the 1990’s. In Berkett v Tauranga District Court [1992] 3 NZLR 206 Berkett was charged with various criminal offences committed on Mayor Island. In the District Court an application was made for an order that the Court had no jurisdiction to hear the proceedings and that they were a nullity. The Court declined the application. He applied to High Court for judicial review.

Berkett’s argument had three limbs.

1.   The Chief who had authority over Mayor Island prior to the signing of the Treaty of Waitangi did not sign or ratify the Treaty;

2.   Mayor Island had never been annexed and was therefore outside of the boundaries of New Zealand law;

3.   Mayor Island was never annexed by the Crown, therefore Maori customary title had not been extinguished on the island. The offences charged were not offences recognised by Maori customary law.

Thus this did not fall into the Meads taxonomy of pseudolaw but it introduces a distinctly New Zealand flavour to the phenomenon which recurs in later cases. A similar argument was advanced and rejected in the earlier case of Kohu v Police [1989] 5 CRNZ 194.

The Court rejected the argument, holding that Mayor Island was part of New Zealand. There was an unbroken chain of constitutional authority for the statutes upon which the respondents relied. The Court relied upon the decision of the Court of Appeal in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 at 690 where it was noted by Richardson J that

“It now seems widely accepted as a matter of colonial law and international law that those proclamations approved by the Crown and the gazetting of the acquisition of New Zealand by the Crown in the London gazette on 2 October 1840 authoritatively established Crown sovereignty over New Zealand”.

The Court also held that Courts are obliged to give effect to those Acts which purport to be in effect in New Zealand regardless of any attack upon the assumptions or procedures which might have led to their enactment. Furthermore, Acts of Parliament do not derive their authority from the Treaty of Waitangi and they are binding upon all persons within the territory of New Zealand. The actions or omissions of one’s ancestors could have no bearing on one’s liability under a New Zealand statute of general application.

Many of the pseudolaw cases in the 1990’s were based on a misunderstanding or misinterpretation of the effect of the Treaty of Waitangi. For example, in R v Pairama (1995) 13 CRNZ 496 the defendant who faced serious criminal charges argued that according to Maori custom, a father must represent his son and that it would be a breach of the Treaty of Waitangi and the Declaration of Independence 1835 if the accused was denied this right. Further applications were also made for a jury comprising of six Maori and six Pakeha members.

These arguments were rejected. Affirming New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 the Court noted that rights conferred by the Treaty of Waitangi can not be enforced in the Courts except in so far as a statutory recognition of the rights can be found and that the legal status of the Declaration of Independence was the same as for the Treaty. Neither document could be enforced at municipal law unless the Legislature specifically referred to them. Furthermore, there was no recognition of a Treaty-based right or one based on the Declaration of Independence for a father to represent his son according to Maori custom and there was no provision for the composition of a jury to be evenly divided between Maori and Pakeha members.