19 May 2013

How would the Treaty of Waitangi fit in a written constitution?

This post is part of my draft submission to the 'constitutional conversation'.

What future role could the Treaty of Waitangi have in our constitution?

The Treaty is a product of negotiation between iwi/hapu and the Crown, and should be preserved as such, to the extent possible. From time to time, parliament must pass laws that empower Treaty settlements and/or that require consistency with the principles of the Treaty, and the courts have to apply that legislation. The Treaty is one key historical source of our constitution (along with other documents such as the 1688 Bill of Rights and the 1852 NZ Constitution Act) and hence will always be acknowledged to have a place in our constitution, in the broader sense of the word. The Treaty is not, however, a charter for the principles or institutions of government and law, and so it needs to be kept in perspective.

Should the Treaty be made a formal part of the constitution?

A clear and up to date restatement of the basic principles of the Treaty could be made into a formal part of the constitution, perhaps in a preamble, but not the full verbatim text of the original Treaty.
These basic founding principles that derive from the Treaty should not depart too far from the three articles themselves, and hence might be in a form something like this:

The Crown originally gained the right to form a government in New Zealand in 1840.
The Crown is thus bound to protect the mana, valued possessions, customary rights and cultural practices of tangata whenua.
The Crown guarantees to tangata whenua all the rights and privileges of New Zealand citizenship, in accordance with the law.

The original Treaty text as a whole should not be imported into a written constitution. The reasons for this are:
The Treaty is ambiguously worded and poorly translated. This has been the source of many disagreements, and we should not import those problems into a constitution that we hope will outlast us and remain relevant for future generations. No-one suggests importing the Magna Carta or the 1688 Bill of Rights into our written constitution, even though they still serve an important historical constitutional role for us, and so we should not do that with the Treaty.
The Treaty contains wording that is now anachronistic, such as ‘British Subjects’ and ‘right of Preemption.’ It would be unwise to include words that no longer have practical relevance to the New Zealand constitution.
Placing the Treaty into an entrenched overarching constitution risks making the Treaty itself subject to decisions in the courts, with precedents creating ever more complicated interpretations of a poorly drafted document. This may not be in the interests of Maori seeking redress under the Treaty, as it would create conditions for more litigious and costly settlement processes. The Supreme Court’s recent finding on the government’s decision to proceed with sale of shares in Mighty River Power would surely discourage us from believing that entrenchment of the Treaty in a written constitution would be in the interests of Maori. The courts will not necessarily find in favour of Maori nor agree with the Waitangi Tribunal’s interpretations of the Treaty’s implications for particular present-day issues. And the Treaty itself should not be converted into a supreme law that might constrain future decisions, especially given its lack of clarity.
The constitution could include some reference to the Treaty and its basic principles. If indigenous rights are to be recognized in a written constitution, however, it may make more sense to look at the UN Declaration on the Rights of Indigenous Peoples as a source of relevant and up-to-date wording.


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