Treaty of Waitangi

In terms of Article I, the court regarded the ceding of sovereignty as a simple nullity. The maori people were incapable of ceding sovereignty and the crown exercised their rights as “first civilised occupier of a territory thinly peopled by barbarians without any form of law or civil government.”

This reflects the argument that only sovereign states can be parties to a Treaty, so because there was no sovereign state, the treaty was a nullity. Demonstrates judicial attitudes of the time, which were clearly in line with the political failure to honour the provisions of the treaty.

The Wi-Parata principle that Maori customary rights were not legally enforceable prevailed up until the 1960’s.

The change in public perceptions came in the 1970’s. NZ wanted to recognise independence from Britain, Maori activism started coming into play.

NZ Maori Council v AG Case 1987

Basically, Maori were given a chance to get their land back, but were scared that their land may go to SOE and not be able to be returned.

  • Creation of State Owned Enterprises involved the transfer of significant Crown assets to the SOE. These assets included large tracts of Crown land. Legislation was SOE Act 1986.

  • The case concerned conflict between s9 and s27 of the Act. Effect was that Maori could be deprived of land rightfully belonging to them in breach of the guarantees in the Trust.

  • The court held that the crown would be in breach of s9 if it failed to provide for claims yet to be made. Also held that the treaty is a living document which adapts to changing circumstances, there is a partnership relationship between Maori and the Crown, the Crown was obligated to remedy past breaches of the Treaty, the treaty was not law and it could not limit the power of Parliament.

Waitangi Tribunal cannot make Parliament do anything.

The Treaty Today

Many Acts now refer to the Treaty.

  • Treaty as an aid to interpretation generally - widely accepted to be constitutional document which governs relationships between the Crown and the Maori.

Proposal to entrench Treaty of Waitangi in a written constitution:

  • Gives the court power to strike down policies of lawns in breach of the Treaty

  • Gives power to majority to amend the terms of the Treaty without consent of Maori people - meaning that whichever government was in power would be able to change the law as they saw fit, which makes Maori worried that it would change the initial terms of the agreement that was made when the treaty was first signed.