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Dawson, John --- "The Treaty of Waitangi in New Zealand's law and constitution by Matthew Palmer" [2010] OtaLawRw 11; (2010) 12 Otago Law Review 425

Last Updated: 25 February 2012

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The Treaty of Waitangi in New Zealand’s Law and

^Constitution

(by Matthew Palmer, Victoria University Press, 2008)

This outstanding book by Matthew Palmer on the place of the Treaty in the country’s legal order demonstrates the strengths of his “realist” approach to the constitution and shows the continuing value of the New Zealand Law Foundation, which supported his research.

The book contains a highly readable account of the historical context for the Treaty’s formation, and covers fully the Treaty’s after-life in our law and constitution, as the title suggests. It considers the Treaty’s significance in international law. It reviews the meaning of the Treaty’s “principles”, as conceived within different branches of government. And it concludes with measured proposals for expanding the Treaty’s significance within our legal system, through combined action by the courts and Parliament. Throughout, the work is informed by Palmer ’s detailed knowledge of the inner workings of our government, and by shrewd political judgement. He wraps the material within a vision of what a constitution consists of, how the NZ constitution works, how it might be changed, and how Treaty interpretation should proceed: that is, with the aim of fostering good relationships between Māori and the Crown. The whole is an exemplary product of Palmer ’s two-track career as an academic and as a senior manager of the government’s legal business.

Palmer ’s central suggestions for change are, firstly, that the Treaty should be weakly entrenched in a fashion similar to central aspects of our electoral law, and, secondly, that legislation should give the Treaty’s guarantees a similar force to the rights and freedoms affirmed in the NZ Bill of Rights Act: that is, the Treaty’s guarantees should have general statutory force but would not act as a full constraint on legislative power. These are workable proposals. They do not preclude further change, and they may be about as adventurous a set of proposals as could hope to obtain widespread public support at the current time.

There are several original elements to the scope of the work. One is

^{Palmer ’s extended attempt to determine the meaning of the Treaty at}

^{1840, to both the British and the Māori leaders who signed. He reaches}

^{the conclusion that both parties:}

were choosing to establish a formal relationship ... that related to the exercise of power in New Zealand – particularly that Britain was taking on responsibilities in relation to foreign nations and British subjects ... [but] there was no common understanding of the extent to which the British power to govern, and the continued authority of rangatira, were to interact (at 73).

He concludes that the document’s formation had a significant impact on relations between the parties at the time, but that ultimately this impact was less important to the future course of that relationship than the fundamental changes of the late 1840s to 1860s, which produced large-

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scale immigration, the establishment of settler government, massive land alienation, and war. It was the latter not the former events, he concludes, as others have before him, that set the course for more than a century for relations between Māori and the Crown.

In the contemporary context, novel elements of the book include the careful attention paid to the precise terms of the Treaty references found in recent legislation, including lengthy preambles to Treaty settlement statutes, and the excellent attempt made to determine the meaning attributed to the Treaty’s principles by the New Zealand Cabinet and other actors within the Executive branch. For these latter purposes Palmer has dug out previously confidential Cabinet papers. His account of these is a valuable addition to the Treaty-related material now in the public domain.

The position of the Treaty in our current law, he decides, on the basis of all this material, is one of “incoherence of legal status and inconsistency of legal force” (at 233). Moreover, the Treaty’s “constitutional place”, he says, “is uncertain and that uncertainty causes tension” (at 277). But he finds:

a weird sort of legal beauty in this situation. It is pragmatic, responsive and flexible. It can also be frustrating, complicated, incomprehensible and full of surprises. But then, that is the nature of New Zealand’s formal constitutional and informal constitutional culture (at 233).

The Treaty, he then suggests, in a nice metaphor:

is a bit like Mt Ruapehu in New Zealand’s physical landscape. It dominates the skyline of a significant area of the country, though it is often clouded over. There are ways around it, but people constantly want to climb it. It can be hot, or cold. It can erupt unexpectedly (at 277).

Not everyone will accept all Palmer ’s observations, of course. Some will question his related suggestions that the place of the Treaty in our law should be stabilised and that greater certainty should be established concerning its meaning. It might be argued in reply that the place and meaning of the Treaty never could be stabilised, any more than we could stabilise the meaning of our history. And some would take the view that lack of certainty in the Treaty’s status, and in its meaning, can be just as useful. Uncertainty brings flexibility. It can produce different plausible interpretations for the text in different contexts, and for different people. And this kind of elasticity, the argument might run, can be even more helpful in finessing the differences within a nation than the adoption of one orthodox meaning with which significant sections of the population would inevitably disagree.

One might also question Palmer ’s claim that it is “inevitable that the courts will give greater legal force to the Treaty” (at 25). Indeed they may, but is this really “inevitable”? Political trends can go suddenly into reverse. Much will depend on the future composition of the New Zealand judiciary, on the politics of the judicial appointment process, and perhaps on the future makeup of the New Zealand population as a whole.

This is a rich book. I was greatly informed by reading it. It fully deserves

The Treaty of Waitangi in New Zealand’s Law and Constitution

427

the J F Northey law book prize for 2009. It stands beside McHugh’s work on the common law of customary rights, and on British colonial practice, to provide comprehensive cover of those legal propositions on the rights of Māori that are now likely to find acceptance in the New Zealand courts. It shows Matthew Palmer to be in the first rank of our constitutional scholars, whose numbers could be counted on the fingers of one hand.

John Dawson, Faculty of Law, University of Otago.