Why the Treaty should be in NZ’s constitution

Change is needed to remove uncertainty about the Treaty’s legal and constitutional status, argue Sir Geoffrey Palmer and Dr Andrew Butler.

We believe the Te Tiriti o Waitangi is an integral part of New Zealand’s constitutional arrangements. The legitimacy of the system of government we have in New Zealand today owes much to the Treaty and this important historical document still has contemporary significance.

The Treaty of Waitangi is not an ordinary law. It was given statutory recognition by the Treaty of Waitangi Act 1975, which created the Waitangi Tribunal. The Tribunal has jurisdiction to examine breaches of the Treaty back to the time of its signing in 1840. This is the basis on which the Waitangi Tribunal recommends and, in some cases, can orders action by Government.

While references to the Treaty have been included in many statutes, the Treaty does not operate through statute unless the statute refers to or incorporates the Treaty specifically. That said, the courts can and do use the Treaty when interpreting particular statutes, but cannot enforce the Treaty as a general matter in New Zealand law.

Confusion is rife around when, how and in what situations to apply it. Overall, its legal effect is inconsistent, incoherent and uncertain.

We suggest there should be certainty about the legal status and effect of the Treaty. In our view the Treaty of Waitangi should be an essential part of any written constitution.

The Government and courts have a lot of experience with Treaty issues at many different levels. Recent Governments have demonstrated flexibility in how the Treaty can be honoured in contemporary New Zealand. The Courts have demonstrated themselves capable of dealing with complex disputes in an even-handed and fair manner, and have not sought to stifle innovative solutions. Making the Treaty part of a superior law Constitution will not bring hidden dangers.

The Government will remain the major player in these issues. The new arrangements will act as something of a check upon temptations fuelled by short-term political expediency to reduce Māori rights, particularly Māori property rights that are recognised at common law.

There are differing versions of the Treaty, in te reo and in English, and these differences have caused some controversies. It is also true there are difficulties in deciding how the Treaty speaks in all situations or, indeed, whether it does. But we believe that enough significant jurisprudence has grown around the Treaty in the courts that enshrining the Treaty itself will not result in significant changes in the day-to-day application of the Treaty in most cases.

The change will bring much needed coherence and consistency to a legally untidy situation that carries the risk of unexpected, unplanned and unpopular lurches in any direction. This is important as relationships between Māori and the State are vital to the peace, order and good government of New Zealand; and the unique Māori culture is of importance to many people who inhabit this nation and contribute significantly to New Zealand’s identity.

We propose to recognise the rights, obligations and powers that flow from te Tiriti, and provide that they should be considered as always speaking. The courts will continue to have the power to give effect to it on a case by case basis, and the Government and Parliament should be expected to recognise and give effect to it in their day-to-day operations. The Waitangi Tribunal should continue.

Under our proposed Constitution, changing the Head of State will have no impact on the Treaty; neither its substance nor the obligations of the State under it. The State will inherit all the current obligations and responsibilities of the Crown.

In summary, we propose:

  • to incorporate the Treaty within Constitution Aotearoa to make its status clear and certain
  • to prevent any amendment being made to the text of the Treaty itself
  • the courts will continue to have the power to give effect to it on a case by case basis, and the Government and Parliament should recognise and give effect to it in their day-to-day operations
  • the proposed Constitution sets out the whole text of the Treaty in both te reo and English and recognises the rights, duties and obligations of the Māori people under te Tiriti o Waitangi / the Treaty of Waitangi
  • all rights, duties and obligations, under te Tiriti o Waitangi / the Treaty of Waitangi and subsequent Treaty settlement agreements which were held by the Sovereign in right of New Zealand will now be held by the State
  • te Tiriti o Waitangi / the Treaty of Waitangi shall be considered as always speaking and shall be applied to circumstances as they arise so that effect may be given to its spirit, intent and principles
  • the Constitution provides that where issues arise that relate to the Treaty or involve tikanga Māori, the courts and tribunals have the power to request an opinion from the Waitangi Tribunal or other experts
  • we also note that under this Constitution changing the Head of State will have no impact upon the Treaty. The State will inherit all the obligations and responsibilities of the Crown that exist currently.

The constitutional position of the Treaty of Waitangi deserves extensive debate and dialogue throughout New Zealand. We want to hear your views so please take the time to make a submission for us to consider before we finalise our proposals.