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TOW02

Treaty of Waitangi

NZ $40.00
incl GST
Author(s): Paul Majurey, Judge Carrie Wainwright, Professor Matthew Palmer
Published: 13 August, 2002
Pages: 78



Introduction


The courts in New Zealand have taken a fairly consistent approach to the Treaty in case law. The Treaty of Waitangi is not part of the domestic or municipal law of New Zealand, which is to say that it cannot be relied upon in and of itself as a source of rights in the ordinary courts of the land. It is therefore not available to Mäori people to challenge acts or omissions of the Crown in court simply on the grounds that they are contrary to the Treaty of Waitangi. The courts do not recognise the Treaty as part of the law that they can enforce. This is because treaties, which are agreements between sovereign states and as such form part of international law, do not, in our system of law, constitute part of a country’s domestic law until they are passed into the general law by legislation. The Treaty of Waitangi has never been legislation in this way, although some individual Acts of Parliament have invoked the Treaty (or, more frequently, the Treaty’s principles). When the Treaty is specifically invoked in legislation like this, it sometimes can be relied upon as a source of rights, by means of judicial review proceedings.

Thus we see that the New Zealand courts have created a body of law in which the Treaty is typically regarded as being of negligible legal effect, except where it has been imported into an Act of Parliament. The classic statement of this feature of our jurisprudence was in the now-notorious 1876 case Wi Parata v The Bishop of Wellington, where the then Chief Justice characterised the Treaty as “a simple nullity”. The negative force of that description had a major role to play in Treaty-related proceedings before the courts in the ensuring decades.

Nowadays, the New Zealand judiciary takes a more benign view of the Treaty of Waitangi. Where the Treaty has been invoked in legislation, judges – and the Court of Appeal judges in particular – have tended to interpret the sections that refer to the Treaty, and their effect, quite widely. Even where the Treaty has not been invoked in legislation, it has been acknowledged in the courts as being an intrinsic part of the social fabric of New Zealand, and as such the courts have held that decision-makers must take the Treaty into account in a few, limited situations.

The former President of the Court of Appeal, Lord Cooke, indicated in a numbers of cases that it is not inconceivable that the Court of Appeal might find the Treaty to have a more fundamental constitutional status if called upon to consider the question of the constitutional status of the Treaty directly and in the appropriate case. As yet, however, no such case has arisen, and until it does the question as to whether a superior New Zealand court would ever be prepared to take the profound constitutional step of changing the ground-rules relating to the recognition of the Treaty in New Zealand law is a matter only for speculation.

The chief development of law involving the Treaty since the Hoani Te Heuheu case has been in the “SOE cases”. These were the cases where, in the 1980s and 1990s, Mäori litigants relied on s 9 of the State-Owned Enterprises Act 1986 (the SOE Act), which specifically invokes the principles of the Treaty of Waitangi.

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