Treaty and republic debate continues

A letter to the editor of the Marlborough Express shows neatly the conundrum of the Treaty of Waitangi to the New Zealand republic debate:

The only way to solve this [Treaty] issue is to declare New Zealand a republic and declare the treaty void. Only then might New Zealand become a multicultural society with a unified vision of racial unity and economic and social progress, as the treaty envisaged nearly 200 years ago.

There is a view, unfortunately pushed by some misinformed, that becoming a republic means making the Treaty void. As we have stressed for some time, this is legally not correct. Most arguments focus on the fact t was the British Crown that signed the Treaty. The argument was neatly spelled out in a recent debate I was involved with on Maori Television's O Whakakaaro: by abolishing the monarchy, the link to the Crown disappears and with it the Treaty. This argument is nonsense because:

• In 1947, New Zealand's parliament adopted the Statute of Westminster, which began the process of separating the New Zealand Crown from the British Crown (acknowledged by the courts in New Zealand in 1973 with the famous case Re Ashman);
• It's clear responsibility was transferred from the British Crown to the New Zealand Crown in this process, there's nothing to stop that from happening under a republic. An analogous scenario is the Anglo-Irish Treaty of 1922, which established the Irish Free State with the British monarch as its head of state. In 1949 Ireland declared itself a republic, but that did not invalidate the 1922 treaty;
• In 1941, the Privy Council ruled in another famous case, Te Heuheu Tukino v Aotea District Maori Land Board, that the Treaty could not be applied as it was not part of New Zealand's statute law.
• As a result of the 1941 case, a long-running campaign for the Treaty to be adopted into law began, concluding with the famous "land march" of 1975. That year, parliament, with the passed the Treaty of Waitangi Act 1975, adopting the Treaty into law as a schedule to the Act which established the Waitangi Tribunal;

So, the Treaty of Waitangi won't simply disappear when New Zealand becomes a republic. As we have stressed a number of times before, this is he legal reality - we have no position on what should happen constitutionally with the Treaty.

(Thanks to a sharp-eyed member for picking up the above letter)