Treaty and Constitution
The Government has finally started the long process of reviewing the NZ constitution and the role of the Treaty of Waitangi in it. This process will take many years and will require "buy-in" from all NZers but, as a start, I present some of my own thoughts here.
The conventional view of NZ's current constitution is that our law arises from common law, statute law and convention. Some matters of law are sufficiently fundamental that we accord them the status of "constitution" although there is no explicit category of "constitutional law" defined within the law itself. Changes to "the constitution" (eg the Supreme Court or the electoral system) are normally enacted by legislation. In some cases a supermajority and/or referendum may be required.
Other models are possible. We could equally well hold that our current law arises from pre-Treaty Tikanga Maori and that the Treaty of Waitangi simply expresses the willingness of the signatory chiefs to permit Pakeha settlement and/or amend traditional custom within the authoriy of their Rangatiratanga. If we use such models, however, we are taking the path of revolution (bloodless or otherwise) for we break the chain by which contemporary law is grounded in its antecedents and strip the law of its historical authority. Whether or not these are replaced by other antecedents a period of considerable legal and constitutional uncertainty would inevitable ensue.
The constitutional uncertainty associated with any revolutionary change of model (quite apart from its intrinsic undesirability) precludes a stepwise approach to constitutional change. Since it is the expressed view of the government (and of many other interested parties) that "treaty" issues should be resolved before other, less urgent contitutional matters; there would be little prospect of getting majority public support for revolutionary change (and particularly the above example); and there is adequate flexibility within the scope of "evolutionary" change I consider only constitutional changes enacted by law and preserving continuity of the rule of law and sovereignty.
In an earlier post I wrote that
It seems clear to me that the Maori concept of "rangitiratanga" (after ceding "kawanatanga") means something more than the English concept of "ownership" but somewhat less than the English concept of "sovereignty". If we are to embody the Treaty principles in a New Zealand constitution then perhaps the first step must be to define that difference (Mana whenua? Ancestral Rights?). But we must define them in terms which are clear and acceptable to a broad concensusPerhaps it is time to look at that extra factor (or factors) now. Under pre-treaty Tikanga, the Maori concept of "Rangitiratanga" encompassed the political (kawanatanga), proprietary (possession) and spiritual (mana). The English term "sovereignty" has some ambiguity but normally means something very close to kawanatanga. Under British law the Sovereign is considered the source of land title but does not actually possess individual parcels of land by virtue of sovereignty. If we apply these definitions to the Treaty of Waitangi (Maori version) then the following principles result -
1) Kawanatanga was explicitly ceded to the British Crown and is now vested in the New Zealand parliament.
2) Rangatiratanga to whenua (kainga and taonga) was explicitly retained but, in the context of (1) this would have to interpreted as possession + mana whenua (ie excluding kawanatanga)
3) Whenua could (and would) be sold to the Crown by free negotiation.
4) Individual Maori became equal British subjects (and New Zealand citizens).
Applying the same definitions to the English version gives us
1) Sovereignty was ceded to the British Crown and is now vested in the New Zealand parliament.
2) Maori retained possession of "Lands, Estates, Fisheries, Forests and other Properties" for "as long as they wish to hold them"
3) Land could only be sold to the Crown (later waived).
4) Individual Maori became equal British subject (and New Zealand citizens).
The differences between these two versions need not be great. There is no issue of substance in point (1). While sovereignty may sometimes be used as a translation of Rangatiratanga that is not it's normal (or legal) meaning. The "powers vested in a governor" in 1840 differed from "the powers of a sovereign" only insofar as the former were granted by delegation. The courts and the Waitangi Tribunal have consistently treated "Kawanatanga" as the powers of a sovereign government including the power (if not the right) to breach the treaty or to legislatively extinguish treaty rights.
The lists of properties in the two versions of point (2) do not correspond precisely but it is the clear intent of both versions that the lists should be exhaustive and the specific wording of neither is restrictive. The Maori concept of "Rangatiratanga" (even after cession of "Kawanatanga") is broader than the English "possession". I tentatively suggest the term "Mana Whenua" be used to describe those aspects of "Rangatiratanga" that are not automatically included in "Sovereignty" or "possession". The word "Whenua" should be interpreted to include land, inland and coastal waters, the foreshore and seabed, riverbeds and lakebeds to the full extent consistent with pre-treaty Tikanga.
Both Maori and English versions envisaged Land sales to the Crown who were then entitled to sell it on to third parties. The Crown subsequently waived the right of preemption at which stage Maori could sell direct to anyone. Most Maori Land is now held in trusts which have severely restricted rights to onsell the land (although most of it has already gone). In practice, however, alienation under British law has applied only to "possession" and those rights encompassed by possession under British Law. Neither version addresses the fate of "mana whenua" following alienation but the obligation of local authorities to consult with iwi exercising mana whenua (kaitiakitanga) under the RMA applies to all land - not just Maori land. It would seem reasonable therefore to assume that mana whenua is not and never has been alienated since 1840. This is a critical area to resolve - particularly in the light of the Foreshore and Seabeds Act.
So a set of constitutional principles giving effect to the treaty might look something like below -
1) Sovereignty (Kawanataga) was ceded to the British Crown by the Treaty of Waitangi and is now vested in the parliament /people/crown/constitution of New Zealand subject to established convention.
2) The Treaty of Waitangi allowed Tangata Whenua to retain "Rangatiratanga" over their full whenua (lands, forests, inland and coastal waters, foreshore, lake, river and seabeds and fisheries), kainga (villages) and taonga (all other physical or intellectual property) according to pre-treaty tikanga. All rights appurtenant to customary Rangitiratanga were thereby retained except for -
2a) Rights which necessarily form part of the Sovereignty (Kawanatanga) ceded to the Crown or which both parties clearly intended to be so ceded;
2b) Rights which were unavoidably incompatible with British Law;
Treaty rights retained specifically include -
2c) Full title (Treaty Title). A Treaty title has the full legal status of a fee simple title and originates from the date of the Treaty. Land transferred to non-Maori before the treaty will have a pre-treaty status determined by Tikanga and the new owner will acquire a Treaty Title if they owned the land before the Treaty. All land title in New Zealand is derived from treaty title and thence from customary Rangatiratanga at the time of the Treaty. The original Treaty Title so derived shall, once legally determined and vested in a legal person or persons, be held to have been the continuous property of that person(s) from the date of the treaty until its subsequent alienation.
2d) Mana Whenua. These are rights appurtenant to Rangitiratanga according to pre-treaty Tikanga but which do not form any part of Sovereignty or title according to British law. Mana Whenua status and its appurtnenant rights are independent of title and remain the unalienated and continuously held property of the traditional holders. Rights appurtenant to Mana Whenua shall (without restriction) include -
2d(1)) Kaitiakitanga - the right to be recognised as legal guardians of any whenua.
3) The government of New Zealand shall maintain mechanisms for
3 a) legally determining the hapu, iwi, whanau or other group of person or persons holding customary Rangatiratanga over any Whenua
3 b) legally vesting all "Treaty title" and/or "Mana Whenua" interests in a legal person or persons which -
3b1) is/are appropriately equivalent to or representative of the traditional owners or holders of those rights;
3b2) meets the required legal standards for governance, administration and accountability to shareholders or beneficiaries in the case of incorporated persons
3b3) identify or provide a means for identifying all shareholders or beneficiaries in any incorporated persons
3c) maintaining contemporary and historic records of all matters determined or established in 3a or 3b.
That's probably enough for a start (I'll look at the issue of Breaches and redress later). The bits in Italics are those that I consider may be controversial to some Pakeha or which are incomplete principally because of my ignorance. I realise that it's a little soon to be doing this sort of thing now but I felt there were some useful concepts for debate in here. If you have other views on these matters please share them. If you are Tangata Whenua or simply less ignorant of things Maori than me I hope you will forgive my presumption and any offence I may have inadvertently given. If I have made some foolish (or for that matter not-so-foolish) error then I beg that you will take the time to set me straight.