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A New look at a Not-So-New Issue

Rochelle Francis



It’s enough to bring joyful tears to the eyes of public lawyers all over the country. Our government is talking about launching into a full-scale “constitutional review”, words that might not mean a lot to some people but are sure to cause Sir Geoffrey Palmer (practicing as a “public law specialist”) to start seeing dollar signs. A constitutional review would involve looking at the rules by which our government is conducted, and would provide us with a chance to re-examine the place that the Treaty of Waitangi occupies within our legal system. It’s a task that we should take none too lightly, and represents an exciting opportunity to revisit a pile of complicated but fascinating issues.
At the moment, New Zealand does not have a written constitution like the USA, Canada or Australia – a single document entrenched as supreme law. In contrast, our constitution is described as being “unwritten”, consisting of a handful of statutes, common law rules, conventions, constitutional documents inherited from Mother England, and of course, the Treaty of Waitangi.
The place that the Treaty occupies in our legal system is, at best, unclear. It is the mechanism by which the Crown gained the right to govern Aotearoa, or, alternatively, gained sovereignty over Aotearoa, depending on how you choose to interpret the Treaty or which version you prefer. It is the English version that cedes “sovereignty”, while the Mäori version, signed by the vast majority of the rangatira (chiefs), only cedes “käwanatanga” – literally translated as “governorship”. Rules of international law would favour the Mäori version of the Treaty. However, to favour the Mäori version would mean that the Crown only gained the right to govern, which is a lesser power than sovereignty. It raises serious questions about the legitimacy of Crown sovereignty in Aotearoa – effectively asking whether our government has the right to exist in its current state. That’s only the tip of the iceberg.
It is the rights guaranteed to Mäori under Article Two that further cause the Treaty to become such a political hot potato. Under NZ law, obligations under the Treaty are enforceable only to the extent that the Treaty is incorporated into domestic law, for example, through references to the “principles of the Treaty” in legislation. Imagine if the Treaty were somehow incorporated into a supreme, written constitution that protected all the Article Two rights in the same way that civil rights are protected by the US Constitution. This is the situation in Canada. The treaty rights of the indigenous peoples are protected by the Canadian Charter, so that the Courts are able to strike down legislation that purports to infringe on those rights. It’s an effective means of ensuring that the rights of minorities are not trampled upon by the majority.
Such a move has already been considered in the NZ context. In 1985, when we were trying to decide on the form of a Bill of Rights for Aotearoa, serious consideration was given both to making the Bill supreme law (which didn’t happen – the NZ Bill of Rights Act 1990 is a normal statute that Parliament can amend at will and cannot be used to strike down other inconsistent legislation) and to incorporating the Treaty into that Bill (which also didn’t happen). The reasons for the latter decision are complex, but relate in part to the Treaty’s special status in New Zealand society. To merely throw the Treaty under the general umbrella of civil and political rights was deemed inappropriate. However, that still begs the question, what is special about the Treaty? Where does it fit into our constitutional framework? That, presumably, is what we hope to learn as a result of the process of this review.
What is clear is that our constitutional arrangements currently afford little protection to Mäori rights under the Treaty. The government’s proposed foreshore legislation is a prime example of this. The Waitangi Tribunal has clearly stated that the proposed legislation would infringe upon rights guaranteed under the Treaty, but our government intends to push on ahead anyway. Once the legislation is passed, the Courts must enforce it, the Executive must give effect to it, and those who have been prejudiced by it will have no mechanism within the NZ legal system by which to challenge it.
This may appear pleasant news to those who shudder at the thought that our government might even attempt to honour its promises under the Treaty. However, if it were those peoples’ rights that were at peril it is likely that they would hope our constitution afforded them some protection. As we embark on this constitutional review, I hope that each of us takes up Don Brash’s plea to ask the question, “What sort of nation do we want to build?” Are you happy for our legislative to have free rein to disenfranchise you of your rights? If not, why is it ok for them to do it to Mäori?