Whether and how the Treaty of Waitangi should be referred to in legislation are current questions that arise every time a new piece of legislation is developed. These questions provoke visceral political reactions from all sides of the political spectrum. The answers matter.
I argue that it is important to consider the purpose of referring to the Treaty in legislation. The symbolic value of referring to the Treaty of Waitangi in legislation should not be underestimated as a purpose. This purpose may be satisfied by a general reference to the Treaty as contained in a variety of current statutes. But achieving this symbolic value should not involve attaching legal effect to a generic clause. To do so leaves the details of that legal effect to be filled in by lawyers and the Courts. In New Zealand’s constitutional system, our Courts should not be deciding such broad policy issues. They are not trained for it or suited to it. Their reputation with the public will suffer in the long term if they continue with that function and their general function itself will be perceived to have changed.
The instrumental value of referring to the Treaty in legislation is the value that lies in its legal effect. This value will not be well-achieved by a general reference to the Treaty itself. Rather, the legal effect of the Treaty that is desired in a particular area of law is a policy question that requires detailed consideration. The answer, if it requires legislation at all, will require a detailed legislative elaboration of the intended application of the Treaty of Waitangi. This sort of analysis poses a challenge to current systems of policy-making. It requires hard work on hard issues. But if Cabinet and Parliament do not consider these issues of detail then general references to the Treaty will ensure that the Courts will have to. If government and Parliament want to live up to the rhetoric of taking seriously the relationshp between the Crown, Maori and other New Zealanders, this detailed policy work simply must be done, as it is for other general public policy values. Parliament can no longer afford to avoid the hard issues of detail by passing generic provisions that leave the details for the Courts to fill in.