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Hopkins, John --- "Book Review: 'The Treaty of Waitangi in New Zealand's Law and Constitution"" [2009] CanterLawRw 15; (2009) 15 Canterbury Law Review 368

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Book Review: 'The Treaty of Waitangi in New Zealand's Law and Constitution" [2009] CanterLawRw 15 (1 January 2009); (2009) 15 Canterbury Law Review 368

Last Updated: 29 April 2013


Victoria University Press, 2009, 360pp, rrp $49.99

Reviewed by Dr John Hopkins, School of Law, University of Canterbury

This book is a substantial work that sets itself an ambitious task. Its stated aims are, to provide both a 'clear' statement of the Treaty of Waitangi's role in New Zealand's legal system, and encourage discussion of this issue. To achieve this, the author also sets out to be both 'academically robust' and as 'accessible as possible to the reader'. These are all laudable ambitions, particularly the commitment to accessibility, but they are not easily achieved.

That this work sometimes falls short of this self imposed standard does not stop it being an excellent piece of work and a valuable additional to the literature.
The work adopts a 'realist' analysis of the Treaty and its role in the New Zealand legal landscape and for this reason alone, Palmer's book is to be wholeheartedly welcomed. Realist scholarship, although mainstream in most overseas jurisprudence, remains something of a minority sport in New Zealand where the dominant 'formalist' approach remains strong. Realism, with its focus on the practical delivery of legal functions (Llewllyn's famous law jobs) leads to a deeper and broader understanding of law and its societal impact yet, despite the obvious benefits of a realist approach to an uncodified constitution, formalism has tended to dominate public law thinking in New Zealand. Such a legal realist approach to Treaty of Waitangi jurisprudence is therefore long overdue.
The book itself is divided into five unequal sections beginning with a short introduction. This section lays the groundwork for the substantive elements of the book and comprises a description of the 'realist' critique (the fact that Palmer needs to take a chapter to explain realism says much about current legal thought in New Zealand), a brief overview of the author's interpretation of the 'relationship' that he argues underlies the Treaty and a broad overview of the argument presented in the book. This argument is presented in three parts, detailing the Past, Present and Future of the Treaty in New Zealand law.
The first part examines the relatively narrow question of what the Treaty meant in 1840. This historic interpretation brings together an interesting range of historical sources to illustrate the contemporary understanding of what was signed at Waitangi in 1840. None of this is particularly new, but it is presented in a very accessible manner. Most importantly, for the purposes of the argument, it lays the foundations for the later themes of the book, namely the common perception of the binding nature of the document and the importance of partnership to both its signing and meaning.
By the author's own admission, part two of the text is the most important. It is by far the longest, comprising around half the total text. This section, although entitled 'Present', in fact provides a wide ranging discussion of the treaty in New Zealand law from 1840 to the present day. To do so, it divides its analysis into three chapters. The first has an institutional focus and examines interpretations of the Treaty provided by the three branches of government (legislature, executive judiciary) as well as the Waitangi Tribunal. This chapter provides some useful insights into the approach of public institutions to the Treaty. The examination of the role of the treaty in Cabinet decision making is particularly interesting and the sheer scale of the research endeavour in trawling through these cabinet documents deserves credit. This chapter concludes with the author's own synthesis of the treaty's interpretation by these public institutions today.
This is followed by a chapter examining the legal and constitutional status of the Treaty. The author clearly feels on firmer ground here as these chapters are the most assured in the book. They are also the longest. The first examines the role of judicial decisions and legislation in the life of the

Treaty. The discussion of the changing nature of judicial interpretation is particularly good and provides a welcome re-examination of much of case law, including an interesting examination of Predergast CJ's infamous 'nullity' comment along the way. The author synthesises this into a strong argument that the Treaty of Waitangi is a valid treaty under international law although with limited opportunities for its enforcement. The short 'realist' gloss provided at the end of the chapter asserts that the legal use of the Treaty remains 'incoherent' and 'inconsistent'. This seems a reasonable conclusion but whether it requires eighty pages to come to, is perhaps a moot point.
The final chapter in part two examines the role of the Treaty in the wider constitution of New Zealand and after a brief summary of the constitutional context the author embarks on discussion of a broad range of issues under the theme of 'constitutional dialogue'. Several issues are covered in turn, the most interesting of which is Palmer's discussion of the Maori parliamentary seats as a visible element of the Treaty's partnership. In examining this, he provides a refreshing approach to a poorly studied subject. The chapter once again concludes with a 'realist' analysis which emphasises the tension that remains with the use of the treaty in the constitution. This uncertainty provides the basis for the final part of the volume.
Part three of the book looks to the future of the Treaty in New Zealand's legal system. This section (which is actually only one chapter) argues, on the basis of that which has gone before that New Zealand requires greater certainty in its constitutional structures. The Treaty, as the fundamental basis of the New Zealand state, is at the heart of this uncertainty and Palmer makes the apposite comment that the uncertainty is magnified by the fact that even the ways of resolving the uncertainties are uncertain.
Palmer argues that the solution requires a two stage approach. The first stage would see a minor set of reforms, within the current constitutional structure. These would include the entrenchment of Maori Parliamentary representation, an increased Parliamentary capacity for dealing with Treaty issues, a Minister for Crown/Maori relationships and greater Maori presence in the judiciary (through minor positive discrimination).
A second, more fundamental reform would require the explicit placing of the Treaty at the heart of the New Zealand constitution. To achieve this, Palmer floats an 'ambitious' reform proposal which would see a comprehensive 'restating of the treaty' although he is quick to resile from this in the face of the obvious practical difficulties. Instead, he argues for the creation of a specialist Treaty of Waitangi Court for the resolution of Treaty disputes. This approach, which Palmer styles as 'realistic' would see the establishment of an institution comprising judges from the current Waitangi Tribunal, the Appellate Courts and the High Court. This would have exclusive authority in Treaty matters.
In discussing the creation of a 'Treaty of Waitangi Court', the author also deals with the long term status of the Treaty. He argues that although the preferred option must be to treat the Treaty as superior law, pragmatically, this would be difficult. Instead, Palmer advocates the recognition of Treaty as, what he calls, ordinary law 'plus', by which he means giving it the status of a constitutional statute, requiring specific overruling in legislation. The final, concluding chapter merely summarises the arguments of the previous 450 pages.
The work is an impressive achievement, covering as it does, a broad range of resources and subjects. But it has significant flaws in both style and content which risk undermining its impact and importance. This is highly regrettable as many of the arguments are interesting and well thought out. There are some excellent passages throughout the book, but at times it degenerates into nothing more than personal opinion. The synthesis of 'interpretations' for the Treaty given at the end of chapter three for example has little basis in what has gone before and is so vague as to be meaningless. Despite this, it is repeated again at the end of the book. Another symptom of this 'personal' style is the annoying tendency of the author to use personal pronouns. Who in particular is the 'we', the author regularly refers to? There is an equally puzzling use of hackneyed kiwi myths, (the pragmatic New Zealander, the love of the 'underdog') which I'm sure would make James Belich smile.
Even the 'realist' approach, which the author makes much of at the outset, feels like an uncomfortable afterthought, rather than a thread throughout the text. This is realism 'light' which fails to fully grasp some rather obvious nettles and does not provide the necessary linkage between the various sections. For this reason, the work feels like a collection of essays rather than a single thesis. These problems are exacerbated by the unnecessary length of the book. It simply doesn't need to be this long. There is a large amount of repetition and unnecessary comment, neither of which adds to the overall argument, or accessibility of the work. These stylistic problems are not aided by the poor formatting style which uses similar heading styles with no numbering, leaving the average reader confused as to how each section fits into the wider whole. These structural problems are all the more disappointing as many of the arguments remain valid and important. They are just not made well enough.
Overall, despite the many good things about this book, the author does not achieve the lofty aims he sets for himself. It is not an accessible guide to the Treaty's role in New Zealand law and as such must be regarded as failing its raison d'etre. It has the feeling of a half finished project in need of a further edit. Had this text been boiled down to its essentials, its impact could have been profound. As it stands, the reader needs to plough on to get to the real gems that are to be found within the text. Fewer will do so than should. Despite these criticisms, the volume is still a good book and a welcome contribution to the scholarship. It just could have been so much better.

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