More than a century and a half after its assent, the Treaty of Waitangi between the Crown and the Māori chiefs of New Zealand remains a source of controversy. The legal status of the document has shifted significantly over that time; providing protection to settlers and Māori being its raison d’être it empowered her majesty to extend prerogative over New Zealand. It was afforded first instance recognition in R v Symonds, and then considered a nullity in Wi Parat. The Treaty once more has status as a nationally recognised document, though it is not formally recognised in its entirety as municipal law.

Once again it is likely that the Treaty is going to become controversial; recently the New Zealand Maori Council made a submission to the Waitangi Tribunal on the controversial topic of Maori ownership of water, and it is likely that this matter will hinder the Government’s ability to sell state-owned assets. An article published on Scoop on May 10 nicely summarises how the NZMC claim is likely to take effect, however it has become clear that the majority of New Zealanders do not fully understand the significance of the Treaty – this is an attempt at explaining some of the important points.

It is still not clear what the ‘rights’ afforded to Māori by the Treaty of Waitangi amount to in practice, and it is certainly not clear how those rights can be enforced. It is clear that the Treaty of Waitangi was instrumental in New Zealand’s constitutional development, without consent of the Māori chiefs the Colonial Office would not have sanctioned the establishment of a colonial government, nor would it have it provided protection to the native population or the settlers who had already called New Zealand home. Central to any understanding of the Treaty of Waitangi is the notion of sovereignty, as will be elaborated on, the concept of sovereignty was never intended to be a fixed concept.

The most basic understanding of the Treaty is that it was a pact through which the Crown provided protection to Māori and their taonga (treasures), and in return required Maori to forfeit their sovereignty (their right to control the country). However this subject matter does not make the Treaty a legally enforceable document. The question of whether the Treaty should be given status as document limiting the prerogative (power to Govern) of Parliament is difficult. According to Sir Geoffrey Palmer, the issue depends on whether the Treaty is part of New Zealand’s domestic law, and whether it can be regarded as a document that limits the power of Parliament. At the moment the Treaty is only enforceable to the extent that it has been incorporated in statute (Act of Parliament), although Crown ministers are obliged to take the principles of the Treaty into consideration when making decisions. Subsequently, it has been argued that if the Treaty is to form a municipal and constitutional document, people should understand what it actually is.

History:

In the context of early nineteenth century New Zealand it became desirable for the British Crown to begin the process of installing a form of government in New Zealand; it was thought that the alternative path would be anarchy (in the European sense). It is important to note however, the desirability of civil government in New Zealand was not one-sided. Tipuna foresaw a future in which tangata whenua and settlers would work together in a partnership based on mutual respect and understanding, co-operation and the utmost good faith. They made a solemn commitment by signing the Treaty of Waitangi, and this commitment lingers on.

According to Dr. Peter Sharples, the Treaty is a bold statement of the faith that the parties had in themselves, faith in their partners, and faith in the future – which remains a foundation of our nationhood. Early in the 19th century, Māori were perturbed by the behaviour and intentions of some people who had come to the country, especially in the Bay of Islands. The introduction of muskets devastated the Māori population in tribal wars in the early nineteenth century. Subsequently, in 1831, thirteen chiefly rangatira from the far north of the country met at Kerikeri to compose a letter to King William IV asking for help to guard their lands. Specifically it sought protection from the French, "the tribe of Marion", and it is the first known written plea made by Māori to the Crown. In response, the British Government sent James Busby in 1832 to be the British Resident in New Zealand. In 1834 Busby drafted a document known as the Declaration of Independence of New Zealand which he and 35 northern Māori chiefs signed at Waitangi on 28 October 1835. The chiefs signed this declaration of independence and in the process established themselves as representing a proto-state under the title of the "United Tribes of New Zealand".

The declaration of independence was not well received by the Colonial Office in London, and it was decided that a new policy for New Zealand was needed as a corrective. Subsequently Captain William Hobson was sent to New Zealand to report on claims of lawlessness in settlements. In a report, Hobson recommended that sovereignty be attained over New Zealand as had been done in Hudson Bay Canada. After hearing back from Hobson the House of Lords held a one month long select committee to determine the fate of the islands and it was recommended that a treaty be entered into with Māori.

Historian Claudia Orange claims that the Colonial Office had initially planned a "Māori New Zealand" in which European settlers would be accommodated, but by 1839, due to pressure from the New Zealand Company, this had shifted to "a settler New Zealand in which a place had to be kept for Māori”. Undoubtedly, that forms a rough historical background to the context under which the Treaty was created.

On the 6th of February 1840 the Treaty of Waitangi was signed by colonial representatives and Maori chiefs on the lawn of William Hobson’s house at Waitangi. It was not entered into under duress or pressure, and many signatories debated about the document for days before signing it and indeed some refused.

Jurisprudence

It is argued that sovereignty attained by the Treaty of Waitangi was not intended to disrupt Maori customary law (except in protection of Euro-centric values), This is evidenced by an early case of the New Zealand Supreme Court. In that case, which was the first case to be heard at the Supreme Court (now High Court) in Wellington, the Chief of Ngati Toa was held not to be subject to British law, he was subject to customary law. The Treaty did not intend to obliterate Maori rights – arguably it laid a foundation for the system of shared power. It, like much colonial policy, served to protect Maori rights and interests from the greedy eyes of land prospectors.

Respect for established legal principle is important as it ensures consistency in how the law is applied, though where policy gets in the way of justice the courts should be more creative in helping the law to mature, and in some circumstances it is justified that law be dramatically altered by the courts. In the United States of America sovereignty is held by the elected representatives just as it is in New Zealand, however the US Constitution is paramount – if the elected government make law that is repugnant to the Constitution then that law can be struck down by the Supreme Court.

In New Zealand, actual constitutional change was proposed in 1989 which would have made this process easier. In the white paper Bill of Rights of 1989, which was introduced to the House of Representatives by Sir Geoffrey Palmer, there was provision for the Treaty of Waitangi to be incorporated as a part of a doubly entrenched statute (which would enable to Courts to strike down law that is repugnant to Treaty principles). Some took issue with this proposition as they felt that it would adversely subject the Treaty of Waitangi to judicial interpretation and legislative amendment. This argument was clearly flawed; if the Treaty were incorporated in the New Zealand Bill of Rights Act as proposed by Sir Palmer then the Treaty of Waitangi would be enforceable against all repugnant state action. It is clear that if Maori land rights are to be respected by the state there must be constitutional reform. The Magna Carta and the NZBORA will no longer be sufficient to protect the freedoms of minorities, not even in the face of racist and internationally condemned legislation like the Foreshore and Seabed Act.

For the last 35 years there have been moves to ensure that Treaty rights are protected as best as possible. The establishment of the Waitangi Tribunal played a pivotal role in setting the scene for Maori to pursue the Crown for breaches of The Treaty of Waitangi. The Anglo-American world circumstances have changed markedly since colonisation, attitudes need to reflect this historical development and realise that it is the natural development of the law of the land. Attitudes in different colonies have changed according to increasingly regionalised paths of development just as they did in European/Ahmedian world centuries ago. In New Zealand, the Treaty of Waitangi among other things has been exerting significant pressure on what are now archaic understandings of sovereignty. It is evident that the law is quickly developing to adhere to these pressures – though constitutional development, in the absence of a revolution, must evolve in a due manner.

Developing international law:

The power of international law is ever increasing, and it is having an everlasting effect on how sovereign bodies function. Like the Crown, state players of the international community have not been burdened with requirements to act in favour of non-municipal norms, there have not been international revolutions resulting in limitation of power. For the above reasons the capacity of international law to develop in meeting its intended objective is dependent on the practicality and functionality of its norms in an objective context. The substance of many of the norms are too controversial for it to effectively govern the conduct of states, and a perfect example to demonstrate this proposition is the insecurity demonstrated by the US, Canada, Australia and New Zealand in recognising the United Nations Declaration on the Rights of Indigenous Peoples. Despite the inherent difficulties of the jurisdiction and enforceability of international law, it is evident that there has been strong pressure placed on states to allow indigenous peoples the right to self-determination.

According to the OHCHR the United Nations Declaration on the Rights of Indigenous Peoples (DRIP) has two underlying principles: that of self-determination, and that of non-discrimination. The DRIP makes a number of strongly worded recommendations to states as to what they should do to rectify the situation of indigenous peoples. The Declaration maintains an anti-assimilationist standpoint – that reaffirms the right of indigenous peoples to their separate culture and traditions. Highlighting some elements that might be of interest, it states the right to self-determination of indigenous people is a fundamental right, and that that might be expressed as the right to autonomy or self-government. It also introduced the notion of "free, prior and informed consent". The Declaration is not officially part of New Zealand law at the present – but it is now part of our tikanga. As part of the values which have been publicly espoused buy the Key Government, the Declaration will gradually inform the laws made by Parliament, and influence the way our courts interpret legislation - just as the Treaty of Waitangi has become part of common law, the DRIP, or the rights promised by it will help to develop the law.

Passive legal development:

With the absence of legislation incorporating the Treaty of Waitangi directly into municipal law the Treaty has had to go through a process of passive incorporation into our law - common law, convention and legislative practice have enabled the Treaty to become recognised and enforced in some specific circumstances. Other jurisdictions where treaties concerning indigenous rights have been upheld as law have relied upon the fact of constitutionalism. The United States was the first jurisdiction to judicially recognise common law native title – it did so because it was bound to by the US Constitution. Those early US Supreme Court decisions were not popular and would have been reversed if they were subject to the will of a 51 percent congressional majority (like Ngati Apa was by the Foreshore and Seabed Act). Likewise, Canadian Indians have benefitted from a binding piece of legislation which has specifically been used to affirm the land rights of Indians. And, the High Court of Australia was able to become actively engaged in striking down racist state legislation in favour of indigenous rights because of the fact of constitutionalism. For Maori, law that binds the Crown has never been present – the Crown is sovereign and can change its policy on the Treaty as it sees fit.

The Parliament of New Zealand does not have to conform with any higher law, in terms of how our constitution is widely understood; the whole jurisdiction is subject to the whims of any sitting Parliament. In Australia, the United States and in Canada the Foreshore and Seabed Act would have most likely been struck down as ultra vires, in all of those states the Treaty would also be afforded a higher status. This is part of a much wider problem, the only form of higher legal protection New Zealand has is Taylor v New Zealand Poultry Board which is of questionable authority. Any judicial or extra-judicial comment that challenges the authority or the legality of legislative and even executive action will be termed ‘judicial activism’. It is clear that some re-thinking is in order.

Where to?

The most basic understanding of the Treaty is that it was a pact by which the Crown provided protection to Māori and their assets in return for Māori to forfeit their sovereignty, though in the eyes of the current generation it has far more significance than that. Although it would be ignorant to suggest that the original sovereignty of the Māori Chiefs has not been altered at all by the Treaty, it is unclear to what extent sovereignty was effectively forfeited. Whether the Treaty should be given status as document limiting the prerogative of Parliament is a difficult and controversial issue. The Treaty as it stands is part of New Zealand’s domestic law and can be enforced in the courts in many circumstances, these circumstances are ever increasing. As argued, New Zealanders need to relearn the concept of sovereignty and frame that concept in the context of the Treaty.

ENDS

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