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The Treaty of Waitangi in New Zealand's Law and Constitution

Matthew S. R. Palmer

Abstract

Part I of this book uses the approach of constitutional realism to examine the meaning of the Treaty of Waitangi, its legal status and force, and its constitutional place in 1840. In greater depth, Part II does the same thing for the current meaning, legal status and force, and constitutional place of the Treaty. Part III looks at where we might want the Treaty to be in the future.

This book suggests that the Treaty of Waitangi is best understood as representing an explicit commitment to the health of the relationships between the Crown, Maori, and other New Zealanders. Yet the specific meaning of the Treaty in relation to particular issues depends on context and therefore remains uncertain. This uncertainty is exacerbated by what I find to be the incoherent legal status and inconsistent legal force of the Treaty of Waitangi. Underlying this is the continuing contested and tense uncertainty of the constitutional roles of New Zealand's public institutions in relation to the Treaty of Waitangi today.

The key focus of the forward-looking part of the book is on how to achieve the objective of healthy relationships between the Crown, Maori and other New Zealanders. I conclude that, in order better to achieve this objective, change is desirable - change that stabilises the place of the Treaty of Waitangi in New Zealand's law and constitution. I suggest that the Treaty should be given legal force, as judged independently by a new Treaty of Waitangi Court.

Irrespective of whether such a suggestion finds favour, the primary aim of the book is to provoke and encourage a more constructive and coherent public discussion in New Zealand of what 'we' - the Crown, Maori and other New Zealanders - want, how we want to achieve it and how we want to decide on those questions.

The book can be ordered online from Victoria University Press using the link indicated.

Suggested Citation

Matthew S. R. Palmer. The Treaty of Waitangi in New Zealand's Law and Constitution. Wellington: Victoria University Press, 2008.