A constitutional law expert, Matthew Palmer, is calling for relationships between New Zealand’s Treaty partners to be put on a more sound footing to avoid a repeat of the foreshore and seabed debacle.
Dr Palmer, who was until recently dean of law at Victoria University, spent last year researching and writing about the status of the Treaty of Waitangi in New Zealand’s constitution and law.
He suggests giving Treaty principles the status of ordinary law to stabilise the legal and constitutional place of the Treaty.
This is necessary because one of the basic uncertainties of the Treaty is that, while it is clearly a document about the sharing of power between the crown and M%u0101ori, the terms of this sharing were ‘not clearly specified or agreed’.
There were quite different understandings of whether sovereignty was ceded and of the level of protection to be accorded rangitiratanga but clearly those who signed the Treaty did agree that there should be an ongoing relationship around the exercise of power.
‘Over our history, the share of public power exercised by Māori and the Crown—and, therefore, the content given to the Treaty of Waitangi in practice—has varied, depending on the practical power politics of coercive force and demographics.’
Today, the clearest expression of the Treaty in law is from the Court of Appeal. Following the Waitangi Tribunal’s lead, the appeal court sees the Treaty as an ‘agreement upholding the legitimacy of the Crown and the protection of Māori interests’ and this imposes procedural obligations on both parties to act ‘reasonably and in good faith’.
This agrees with what we know of the spirit abroad at the time of the signing of the Treaty in 1840 and Māori who have studied international treaties are in accord with this interpretation.
Dr Palmer says there is an uncertainty over interpretation of the Treaty which comes from the constitutional arrangements being drawn up according to the will of the majority while the Treaty exists to protect a minority.
So the Treaty has legal force only if and when Parliament says it does.
‘But Parliament has spoken incoherently, through a patchwork of legislative references to the Treaty, many of which are unhelpfully generic; and however loudly Māori voices are now heard in Parliament, it is still the majority who rule the sovereign Parliament, as the Foreshore and Seabed legislation demonstrated.’
The Waitangi Tribunal can only recommend and Parliament has rejected its recommendations from time to time.
Dr Palmer says it is important to provide a basis for a healthy set of ongoing relationships between the Crown, Māori and other New Zealanders. Whether we care about the health of these relationships depends on how seriously we view the risks as shown in civil warfare in such nations as Rwanda, Israel, Ireland and Fiji.
To avoid such risks means resolving the uncertainty surrounding the meaning of the Treaty in relation to particular issues and to sort out whose job it is to interpret the meaning of the Treaty within New Zealand’s constitution.
‘Uncertainty about what to do, and uncertainty about who should decide, risks kneejerk reactions and that could do serious damage to these relationships. The foreshore and seabed should be a lesson to us in that regard.’
A national discussion about the meaning of the Treaty and to legislate that meaning would be the most ambitious alternative to the status quo. Since this would be a huge challenge and may cause more harm than good, a second option would be to give the Treaty the status of supreme law. This would mean that judicial views of the specific meaning of the Treaty would override those of the executive and Parliament’s political branches.
‘New Zealand constitutional culture may not be ready, yet, for such a step.’
To give the Treaty, or its principles, the status of ordinary law would be a moderate alternative whose compromise action was adopted in the New Zealand Bill of Rights Act 1990. This would give the ordinary courts the authority to clarify the meaning of the Treaty in practice in specific situations.
‘It could substitute for the Waitangi Tribunal’s jurisdiction over contemporary Treaty claims, which could then be refocused on reporting on historical claims or, potentially, providing independent advice to Parliament on the implications of the Treaty of Waitangi in draft legislation.’
Dr Palmer says there would still be a need for genuine consultation between all parties.
To give the Treaty such status would stabilise it in New Zealand’s law and constitution and ‘enhance the future health of the relationships between the Crown, Māori and other New Zealanders’.