After listening to her interview with Simon Mercep, however, I am left wondering whether she has actually proved her case.
The original Treaty was relatively straightforward in its basic purpose. It is the later interpretation and application of the Treaty that has created the difficult historical and constitutional questions we face today.
The Māori and official English texts are different. The English Article 1 refers to the chiefs ceding “all the rights and powers of Sovereignty”, while the Māori text uses kāwanatanga, a transliteration of ‘governorship’. Article 2 guarantees tino rangatiratanga, commonly rendered as full chiefly authority or chieftainship.
Those differences deserve serious examination. But there is an enormous leap between arguing about what the Treaty meant in 1840 and declaring that the sovereignty exercised by New Zealand today is illegal.
That leap cannot simply be assumed.
Charters relies heavily on the proposition that Māori chiefs did not cede sovereignty. Even accepting that proposition for the sake of argument, it does not automatically follow that the New Zealand state has no lawful sovereignty today.
The Waitangi Tribunal concluded that the northern chiefs who signed te Tiriti in February 1840 did not cede sovereignty. But even the Tribunal acknowledged that its finding concerned what the Treaty meant at that time, and specifically said it had not determined how or when the Crown acquired the sovereignty it exercises today.
That is a rather important qualification.
The Tribunal is also not New Zealand’s constitutional court. It can investigate Treaty claims and make findings and recommendations, and those recommendations can have considerable political influence. But it does not sit above Parliament, nor does it possess a general power to strike down legislation or declare the sovereignty of New Zealand invalid.
A Tribunal finding is not a Supreme Court judgment. A recommendation is not legislation. Political influence is not constitutional authority.
Nor did the constitutional history of New Zealand stop at Waitangi in February 1840. Hobson proclaimed British sovereignty over the North Island on 21 May on the basis of cession through the Treaty, while initially proclaiming sovereignty over the southern islands on the basis of discovery. Bunbury subsequently proclaimed sovereignty over the South Island by cession. New Zealand was formally established as a separate British colony later that year.
This history is important because Charters herself says there were three ways sovereignty could legally be acquired: cession, discovery and conquest. But the actual British process in New Zealand was more complex than that formulation suggests. There were Treaty signings, Hobson's proclamations asserting sovereignty on different legal grounds, the creation of a Crown colony and, subsequently, the development of representative and responsible government.
Whether every step was justified is another question. But it demonstrates why the assertion that New Zealand’s present sovereignty is simply “illegal” requires much more explanation.
Even if historical wrongdoing is established, it does not follow that the state that subsequently developed has no legal existence or legitimate sovereignty today.
Charters also invokes international law. But if Britain acted illegally under international law in 1840, the precise law needs to be identified. Was it binding at the time? What did it require? What was the legal consequence of breaching it? And who has subsequently determined that such a breach invalidated New Zealand’s sovereignty?
Simply invoking “international law” does not answer those questions.
There is another issue that deserves much more public attention. Dr Muriel Newman has warned that replacing New Zealand’s traditional Westminster constitutional arrangements could transfer significant power from elected Parliament to the courts. If constitutional rules gave judges authority to determine whether legislation complied with Treaty principles, tikanga Māori or international instruments such as UNDRIP, then judges could acquire a much greater role in deciding what Parliament may lawfully do.
That is not a minor constitutional adjustment. It raises the fundamental question of who governs New Zealand — elected representatives accountable to voters, or unelected judges empowered to make final constitutional determinations?
Charters points to Canada as an example of what New Zealand could become. Canada certainly provides an interesting comparison, but its arrangements are the product of Canada’s own constitutional history. Its Constitution expressly recognises Aboriginal and Treaty rights. That demonstrates that constitutional change is possible; it does not prove that New Zealand’s existing constitutional order is illegal or needs changing.
And this is really the issue.
If Charters is arguing that New Zealand should change its constitution, that is a legitimate political proposition. But then let us debate the proposed changes honestly. What powers would be transferred? To whom? Would political authority be allocated according to ancestry? What happens when Māori and general institutions disagree? What role would Parliament and the courts retain? Who ultimately gets to decide?
These are not technical details. They are the constitution.
Charters is particularly dismissive of the idea that everyone should simply be treated equally under the law, describing it as a “fairy tale” in a colonial country.
I disagree.
Equality before the law does not require us to deny history or ignore legitimate historical grievances. It means that citizenship and legal rights should not depend upon race.
A Māori New Zealander and a non-Māori New Zealander are both citizens. Both vote. Both pay taxes. Both are subject to the law. Both can stand for Parliament. Either can become Prime Minister.
There is a legitimate debate about how historical injustice should be addressed. But there is a much bigger question about whether redress should evolve into permanent political differences based on ancestry.
That is the debate New Zealand needs to have.
We should be able to examine the Treaty without being told that the country itself is illegitimate. We should be able to acknowledge historical wrongs without declaring every subsequent constitutional development invalid. And we should certainly be able to debate constitutional reform without accepting that constitutional revolution is somehow a legal necessity.
Claire Charters has put forward a case for fundamental constitutional transformation.
Fine. Let her case be debated.
But before New Zealanders are asked to accept that their country is founded on an “illegal” and “illegitimate” exercise of sovereignty, there is one question she still needs to answer:
What specific law makes the sovereignty of New Zealand illegal today — and who has the legal authority to declare it so?
Until that question is answered, constitutional transformation remains a wishful political project in search of a legal justification, rather than an established legal necessity.
One country. One citizenship. One law. Equal rights. Equal responsibilities.
Further reading:
A written constitution for NZ? Professor James Allan
Sir Geoffrey’s [Palmer] last monument - Anthony Willy
Parliamentary Sovereignty Under Attack - Dr Muriel Newman
What a bastard! - Professor James Allan
Geoff Parker: One Law For All Does Not Ignore History — It Recognises Who Makes The Law
Geoff Parker: Constitutional Transformation or Constitutional Drift?
Geoff Parker is a passionate advocate for equal rights and a colour blind society.
The Māori and official English texts are different. The English Article 1 refers to the chiefs ceding “all the rights and powers of Sovereignty”, while the Māori text uses kāwanatanga, a transliteration of ‘governorship’. Article 2 guarantees tino rangatiratanga, commonly rendered as full chiefly authority or chieftainship.
Those differences deserve serious examination. But there is an enormous leap between arguing about what the Treaty meant in 1840 and declaring that the sovereignty exercised by New Zealand today is illegal.
That leap cannot simply be assumed.
Charters relies heavily on the proposition that Māori chiefs did not cede sovereignty. Even accepting that proposition for the sake of argument, it does not automatically follow that the New Zealand state has no lawful sovereignty today.
The Waitangi Tribunal concluded that the northern chiefs who signed te Tiriti in February 1840 did not cede sovereignty. But even the Tribunal acknowledged that its finding concerned what the Treaty meant at that time, and specifically said it had not determined how or when the Crown acquired the sovereignty it exercises today.
That is a rather important qualification.
The Tribunal is also not New Zealand’s constitutional court. It can investigate Treaty claims and make findings and recommendations, and those recommendations can have considerable political influence. But it does not sit above Parliament, nor does it possess a general power to strike down legislation or declare the sovereignty of New Zealand invalid.
A Tribunal finding is not a Supreme Court judgment. A recommendation is not legislation. Political influence is not constitutional authority.
Nor did the constitutional history of New Zealand stop at Waitangi in February 1840. Hobson proclaimed British sovereignty over the North Island on 21 May on the basis of cession through the Treaty, while initially proclaiming sovereignty over the southern islands on the basis of discovery. Bunbury subsequently proclaimed sovereignty over the South Island by cession. New Zealand was formally established as a separate British colony later that year.
This history is important because Charters herself says there were three ways sovereignty could legally be acquired: cession, discovery and conquest. But the actual British process in New Zealand was more complex than that formulation suggests. There were Treaty signings, Hobson's proclamations asserting sovereignty on different legal grounds, the creation of a Crown colony and, subsequently, the development of representative and responsible government.
Whether every step was justified is another question. But it demonstrates why the assertion that New Zealand’s present sovereignty is simply “illegal” requires much more explanation.
Even if historical wrongdoing is established, it does not follow that the state that subsequently developed has no legal existence or legitimate sovereignty today.
Charters also invokes international law. But if Britain acted illegally under international law in 1840, the precise law needs to be identified. Was it binding at the time? What did it require? What was the legal consequence of breaching it? And who has subsequently determined that such a breach invalidated New Zealand’s sovereignty?
Simply invoking “international law” does not answer those questions.
There is another issue that deserves much more public attention. Dr Muriel Newman has warned that replacing New Zealand’s traditional Westminster constitutional arrangements could transfer significant power from elected Parliament to the courts. If constitutional rules gave judges authority to determine whether legislation complied with Treaty principles, tikanga Māori or international instruments such as UNDRIP, then judges could acquire a much greater role in deciding what Parliament may lawfully do.
That is not a minor constitutional adjustment. It raises the fundamental question of who governs New Zealand — elected representatives accountable to voters, or unelected judges empowered to make final constitutional determinations?
Charters points to Canada as an example of what New Zealand could become. Canada certainly provides an interesting comparison, but its arrangements are the product of Canada’s own constitutional history. Its Constitution expressly recognises Aboriginal and Treaty rights. That demonstrates that constitutional change is possible; it does not prove that New Zealand’s existing constitutional order is illegal or needs changing.
And this is really the issue.
If Charters is arguing that New Zealand should change its constitution, that is a legitimate political proposition. But then let us debate the proposed changes honestly. What powers would be transferred? To whom? Would political authority be allocated according to ancestry? What happens when Māori and general institutions disagree? What role would Parliament and the courts retain? Who ultimately gets to decide?
These are not technical details. They are the constitution.
Charters is particularly dismissive of the idea that everyone should simply be treated equally under the law, describing it as a “fairy tale” in a colonial country.
I disagree.
Equality before the law does not require us to deny history or ignore legitimate historical grievances. It means that citizenship and legal rights should not depend upon race.
A Māori New Zealander and a non-Māori New Zealander are both citizens. Both vote. Both pay taxes. Both are subject to the law. Both can stand for Parliament. Either can become Prime Minister.
There is a legitimate debate about how historical injustice should be addressed. But there is a much bigger question about whether redress should evolve into permanent political differences based on ancestry.
That is the debate New Zealand needs to have.
We should be able to examine the Treaty without being told that the country itself is illegitimate. We should be able to acknowledge historical wrongs without declaring every subsequent constitutional development invalid. And we should certainly be able to debate constitutional reform without accepting that constitutional revolution is somehow a legal necessity.
Claire Charters has put forward a case for fundamental constitutional transformation.
Fine. Let her case be debated.
But before New Zealanders are asked to accept that their country is founded on an “illegal” and “illegitimate” exercise of sovereignty, there is one question she still needs to answer:
What specific law makes the sovereignty of New Zealand illegal today — and who has the legal authority to declare it so?
Until that question is answered, constitutional transformation remains a wishful political project in search of a legal justification, rather than an established legal necessity.
One country. One citizenship. One law. Equal rights. Equal responsibilities.
Further reading:
A written constitution for NZ? Professor James Allan
Sir Geoffrey’s [Palmer] last monument - Anthony Willy
Parliamentary Sovereignty Under Attack - Dr Muriel Newman
What a bastard! - Professor James Allan
Geoff Parker: One Law For All Does Not Ignore History — It Recognises Who Makes The Law
Geoff Parker: Constitutional Transformation or Constitutional Drift?
Geoff Parker is a passionate advocate for equal rights and a colour blind society.
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