Legal social basis of Waitangi Treaty


The conservative John Key government encourages New Zealanders to believe that the Treaty of Waitangi settlement process will come to an end.The belief is wrong partly due to a fundamental misunderstanding of the legal basis of modern New Zealand.

The Treaty of Waitangi is New Zealand’s founding document. All our laws, our bureaucratic processes and decisions must accord with it. The question then is: who and how decides if it’s being adhered to.

Like with any group of people or system of law on the planet, social processes decide the outcome. Whether the English version takes precedence over the Maori version or how the two interact or what is the meaning of the words – it’s all decided in the Waitangi Tribunal system and the court system. The courts are top dog in any dispute until the parliament changes the law.

It’s a huge misunderstanding of how the legal system really works if you think the words might mean what they appear to mean. Again, like legal systems everywhere, the words mean whatever the judges decide they mean. And judges everywhere are fooling themselves if they think they can make decisions independently of their own particular views and social biases. This “interpretation of laws” is known in jurisprudence as the Realist school and I recommend the book by Hart, H L A, The Concept of Law (1961)

Under our current system and current definitions the Treaty process must be ongoing. Why? Because for simple social and biological reasons judges will never give up the power to decide the meaning of words. But more importantly because current definitions of certain words and Treaty principles decided by judges means that new technologies as they emerge have to be shared according to Treaty principles.

Personally I’m very happy about that. The Treaty process in NZ is unique and has resulted in a unique and wonderful society where the huge majority of people are committed to living in and building a society of mutual respect. Even the sad few racists in New Zealand, be they Maori or Pakeha, usually have no idea of the extent to which their world view, language and thinking is a unique mix of indigenous and colonial history.

I also think Gareth Morgan’s article is worth a read, but I disagree when he says “However despite this fluidity, the Treaty has limits. Even in its modern “elastic” form it cannot be credibly stretched to legitimise all Maori aspirations.” In fact if there is the social will, it can happen. The problem, as always, will be groups of people seeking to dominate others by whatever means they can.



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