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Contribution to Book
"Constitutional Issues"
Treaty of Waitangi (2002)
  • Matthew S. R. Palmer, Victoria University of Wellington
Abstract

At the level of constitutional principle, the Treaty of Waitangi gives symbolic expression, at the founding of the nation of New Zealand, to the need for a healthy set of relationships between the Crown, Maori and other New Zealanders. Recognition of these relationships by the rules governing the exercise of power in New Zealand is justified by the importance of indigenous culture

At the level of constitutional practice, the Treaty of Waitangi has made its way into significant and powerful facets of the procedures and structures of decision-making in New Zealand government that constitutes our constitution. In particular:

(i) The political power of Maori, through the Maori seats and through increased parliamentary representation under MMP, is a key factor of the formation and constitution of Executive government, and hence bring the Treaty relationships squarely into the political dynamics underlying its decisions;

(ii) Maori affection for the continued existence of the monarchy, sourced in the symbolism of the Treaty relationship with the Crown, may influence future constitutional debate on moving to republicanism;

(iii) Over the last almost twenty years successive Administrations of Executive Government have stated their intent to honour the Treaty of Waitangi, have faced enforcement of the Treaty through the courts, on the basis of legislative references to the Treaty, and through the Waitangi Tribunal, and have settled claims of historical breaches of the Treaty;

(iv) Other than in some institutional and procedural aspects of Parliament, and the process of passing Treaty settlement legislation, Parliamentary procedure is little affected by the Treaty of Waitangi. The political calculus that affects Parliament's use of references to the Treaty in legislation appears to suggest cautious but continued reference to the Treaty (hopefully combined with practical clauses spelling out its meaning in the specific context);

(v) The continued existence of the Judicial Committee of the Privy Council, the existence of the Waitangi Tribunal and the ongoing Maori Land Court and Maori Appellate Court jurisdiction are direct reflection of different aspects of the Treaty relationship which are also quietly in the background of judicial decision-making;

(vi) Interestingly, the Treaty relationships are less reflected in other checks on government than they are within government itself. The aspects to watch in future are local government and international law.

Keywords
  • Treaty of Waitangi,
  • New Zealand,
  • Indigenous Rights
Disciplines
Publication Date
August, 2002
Editor
Judge Carrie Wainwright, Paul Majurey, Matthew Palmer
Publisher
New Zealand Law Society
Citation Information
Matthew S. R. Palmer. "Constitutional Issues" in Treaty of Waitangi. Ed. Judge Carrie Wainwright, Paul Majurey, Matthew Palmer (New Zealand Law Society, 2002) 65