The Treaty’s legal status can change in the future but at the moment the Treaty itself is not a legally enforceable document (unlike a piece of legislation for example). That’s because it is currently accepted by the Supreme Court that sovereignty (or the right to make binding laws in New Zealand) lies with Parliament only. Only laws passed by Parliament are legally enforceable and the present view is that the Treaty pre-dated the transfer of sovereignty to Parliament. That means the Treaty itself is unlikely to be legally enforceable in any New Zealand court at the present time. The Treaty is instead, in it’s present day incarnation in New Zealand, at its core an ever-evolving negotiated agreement about the sharing of power and resources between Maori and non-Maori. In recent times that agreement has been underpinned by a general, widely shared (but not always articulated or conscious) consensus about the moral implications of the Treaty, particularly as it relates to Maori land and cultural treasures. Laws passed by Parliament may refer to the Principles of the Treaty. In this case actions and decisions can be judged relative to a benchmark that relates to the Treaty. That benchmark amounts to actions and behavior that are accepted by the courts as being consistent with the broad intent and understanding of the original signatories. In a similar vein, some legislation may make some specific mention of how the Treaty is to be applied. However these sorts of references to the Treaty and the Treaty principles can be removed from legislation at any time, depending on the will of Parliament. Legal experts say it is likely that if tested in international law the Treaty would be recognised as being binding on Parliament. That would mean Parliament has a moral obligation to honour the Treaty. However, while a result like this would add to the status of the Treaty, it wouldn’t alter much in a pragmatic sense. It is likely any test against international law would confirm the legal status of the Treaty in New Zealand – it is likely that international law would confirm that sovereignty subsequently passed to Parliament. And that leaves you back with the practical problem of needing to reach a consensus about the moral implications of the Treaty and having to negotiate about how power and resources should be allocated in response to that. A further complication is that there is currently no international forum to test the Treaty against international law anyway.

Why is the Treaty not a legal document? was last modified: January 5th, 2015 by Gareth Morgan