The Treaty Beyond Treaty Claims

AUT history professor, Paul Moon, has a piece in the Herald today which considers the place of the Treaty of Waitangi in the 21st century.  Professor Moon sketches a trajectory from the Treaty’s slightly unpromising beginning through to the first decade of the the 21st century.  In conclusion, he notes:

What started as a cession of sovereignty in 1840, then lapsed from government attention for more than a century, to emerge in the 1970s as a source of rights and a cause for protest, might now be entering a new phase – the Treaty not as leverage for claims, but as a basis for a fruitful constitutional arrangement.

I gave a public lecture last year for the New Zealand Centre for Public Law in which I expressed a similar view  – that we are now moving out of the time when claims and settlements dominate the public discussion of the Treaty and towards a period of considering the constitutional role of the Treaty and how the Treaty partnership is to be given effect moving forward.  I suggested in that lecture that this will require a different, and perhaps, a more challenging approach to Treaty issues.  In particular, I suggested that the reliance on Treaty principles will need to be replaced by a focus on the Māori text of the Treaty.  Treaty principles qualify the terms of the Treaty and provide an important compromise that enables claims and settlements to be advanced.  However, if we are to seriously explore constitutional relationships that are based on the Treaty, that exploration ought not to start from a compromised or qualified understanding of what the Treaty says.  Rather, we should return to the terms of the Treaty to consider what it really means to give effect to ‘kawanatanga’ and ‘tino rangatiratanga’.

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