Constitutionalising the Treaty, part II

Antipodean Journal has more on the subject of Waitangi and the separation of power, but some of it seems rather confused. For example, when commenting on what JustLeft called "version 2" of our constitutional history (in which "Aboriginal title was, arguably, extinguished by the English common law that arrived with the Crown"), he says:

The problem with this version is contained in the last sentence. Where the British empire expanded into regions inhabited by indigenous peoples, the common law dictated that aboriginal rights of sovereignty pre-existed the right of the Crown. Sovereignty could be transferred by force or by treaty, but it had to be transferred.

This is simply wrong. There are no common law "aboriginal rights of sovereignty". There are common law aboriginal property rights, or aboriginal title, which predate the crown and survive colonisation unless extinguished or abandoned, but property is not sovereignty.

What version 2 rests on is an explicit denial that indigenous peoples are sovereign. You can turn up and sign a treaty with them, but according to the legal doctrines favoured by version 2, it's not a real treaty because "savages" lack the capacity to sign one, and it's also not a real cession because they have no actual sovereignty to cede. This is seen perfectly in Lord Normanby's despatch to Hobson, as quoted by Justice Prendergast:

We acknowledge New Zealand as a sovereign and independent state, so far at least as it is possible to make such acknowledgement in favour of a people composed of numerous, dispersed and petty tribes, who possess few political relations to each other, and are incompetent to act, or even to deliberate in concert

According to Prendergast, "such a qualification nullifies the proposition to which it is annexed"; New Zealand was "thinly populated by barbarians without any form of law or civil government", and hence sovereignty vested in the "first civilised occupier" to come along and plant their flag. But however morally abhorrent this doctrine may be, it's not actually incoherent; version 2 tells an internally consistent (but repugnant) story.

Further on, Rohan argues that New Zealand's nature as a unitary state has meant that we have been unable to justify the creation of a supreme court to limit state power. This is true insofar as such courts haven't been required by the political structure (by contrast, they are required in non-unitary or federal states, to mediate the distribution of powers between different levels of government). But that doesn't mean we can't have one!

We don't need to view New Zealand as a non-unitary state in order to limit the power of Parliament - all we have to do is decide that that power ought to be limited, that there are some things that the government has no right to do. We saw an effort to do this in the 80's, when Geoffrey Palmer attempted to give us a binding and enforceable bill of Rights. Interestingly, the original version incorporated the Treaty, including the following clause:

4. The Treaty of Waitangi

(1) The rights of the Maori people under the Treaty of Waitangi are hereby recognised and affirmed.

(2) The Treaty of Waitangi shall be regarded as always speaking and shall be applied to circumstances as they arise so that effect may be given to its spirit and true intent.

(3) The Treaty of Waitangi means the Treaty as set out in English and Maori in the Schedule to this bill of Rights.

Unfortunately, this foundered on numerous objections, and the binding and entrenched status was watered down by a Parliament jealous of its own sovereignty. But there's no reason why we can't try again, but I suspect we'd all want a little more idea of the balance between Kawanatanga katoa and tino rangitiratanga before doing so.