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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