The Treaty of Waitangi - Where to from here?
11 Otago Law Review 381, 2007
9 Pages Posted: 29 Nov 2012 Last revised: 22 Mar 2015
Date Written: 2007
The Treaty of Waitangi is a literature of some distinction, unique to New Zealand, and has developed jurisprudence of near Byzantine complexity. This paper attempts to provide an overview of where the New Zealand policy position is now located in relation to the Treaty of Waitangi and where it might lead in future. It considers the development of Treaty policy from 1975 with the establishment of the Waitangi Tribunal. Much was developed in the decade from 1985 to 1996, most of it controversial. But while New Zealand cannot go back, in 2006 there appears to be so much controversy and so little widespread will that going forward may be impossible.
The paper considers the current legal position, finding that the Treaty is half in and half out of the legal system. It discusses the legal difficulties created due to interpretative ambiguities both in the Treaty itself and in the differences between the English and Maori versions. It mentions the complicating factor of aboriginal customary rights, a legal doctrine which consumed New Zealand in the foreshore and seabed saga. This doctrine, strictly speaking, is not part of the Treaty debate at all despite contributing considerably to the unfavourable atmosphere now pervading Treaty issues.
The question remains: what is to be done? This paper suggests that at present nothing ought to be done. Once historical grievances are dealt with and there has been a pause for reflection, consultation, analysis and reconsideration, New Zealand will be better equipped to move forward and bring more constitutional and legal clarity to the Treaty’s position. The economic, social and cultural position of both Maori and Pakeha must also be assessed. The scholarly community has much to contribute in the form of developing ideas and policy options outside political and governmental frameworks.
Keywords: Treaty of Waitangi, New Zealand, Waitangi Tribunal, foreshore and seabed, aboriginal customary rights
JEL Classification: K19
Suggested Citation: Suggested Citation