Thursday, March 25, 2004


In her comments on Treaty clauses, NZPols presented an interesting counterfactual situation: Assume that we've misinterpreted the Treaty, and that we then discovered we were wrong and that

the only viable interpretation of the Treaty was that Maori had not ceded sovereignty to the Crown in 1840, and therefore still had sovereignty over New Zealand. Assume that there is only one person of Maori ancestry left in New Zealand. Would you be willing to honour the Treaty and bow to him as King?

No. Off with their head, and long live the republic.

This neatly illustrates the fact that, to the extent that they impact on constitutional provisions, debates around the Treaty are not just a matter of the interpretation of the text, but also of the consent of the governed. If a reinterpretation of the Treaty requiring significant constitutional change is not widely shared, or requires people to submit to non-representative government or even just a change in the name of our titular, meaningless figurehead, it will not be accepted, regardless of the legalities.

This is one of the reasons I'm uneasy about the entire Treaty having legal force - because all of the parts which talk about "sovereignty" are effectively dead letters. Article One was meaningful in 1840, both as a mark of consent and formal cession, and to signify to other colonial powers that this patch was taken, but it's difficult to see its relevance now in anything but a historical sense. Our government isn't sovereign because its the successor of Governor Hobson; its sovereign because we overhelmingly believe it to be so.

(Since Article Two doesn't touch on sovereignty (except in the minds of the tino rangatiratanga people), it's far easier to see it as a straight out contractual agreement).