Our Treaty, Our founding document

The Treaty of Waitangi, Tiriti o Waitangi, is our founding document. Legally, the responsibilities for the Treaty would transfer from the monarch to the new independent State. New Zealand Republic has a clear policy that any move to a republic must include legislative protection for the Treaty and the current Maori-Government relationship. Becoming a republic is an opportunity to improve the relationship between Māori and Pakeha and the ongoing debate over becoming a republic will help clarify the Treaty issue.

This section is by no means a full history of the Treaty or what came before it, but it does give a bit of background to the agreement and how it is interwoven with the republic debate. If you’re interested in this topic, then we recommend the Te Ara website on the Treaty of Waitangi.

MAori views on the Crown and a New Zealand head of State

According to a number of polls on the issue over the years, a majority of Māori support a republic. Like all New Zealanders, Māori opinion on a republic is divided. Māori voters are more likely to support becoming a republic than Pakeha voters, regardless of the party they vote for.

Māori views on the Crown and monarchy are simularily diverse. Recently Maori commentator Morgan Godfery put it like this:

New Zealand, a country founded on a sacred pact between Māori and the Crown, is different. Or so we’re told. In truth, the Treaty relationship between Māori and the Crown was never a relationship between hapū and the monarch. It’s a relationship between you and I as tangata whenua and tangata tiriti.

The question I keep returning to is whether our institutions not only serve us but look like us. If we accept the idea that the special relationship in this country is between tangata whenua and tangata tiriti, not between colony and Crown, then what is the monarchy but a dust-covered photograph of Queen Victoria on the back wall of a small-town Marae?

StatuTe of Westminster: A Crown is born

In 1947 New Zealand adopted the Statute of Westminster. The Statute was a piece of legislation passed by Britain in 1931 giving its then self-governing colonies the ability to become independent. New Zealand finally passed its own legislation adopting the Statute in 1947. The British monarch as our head of state eventually became the monarch of New Zealand independent of their role as the British Monarch, and the New Zealand Crown was legally divided from the British Crown.

The sovereignty originally vested in Queen Victoria by the English version of the Treaty passed from the British Crown to the New Zealand Crown. With the passing of that statute the British Crown in New Zealand became ‘the Crown in right of New Zealand’. Legally, becoming a republic would mean transferring the Treaty’s responsibilities again, as was done in 1947, to the new head of state.

This would leave responsibility for the Treaty where it has always laid: with the New Zealand Parliament and its executive Government. Successive Governments have both ignored the Treaty and, more recently, set about making amends. It has been the New Zealand Government that has made apologies and paid reparations to Iwi, not the British Parliament or Government.  

There were numerous Māori delegations (including one led by King Tāwhiao) to London in the years following the Treaty of Waitangi. They were all dismissed, and sent back to the colonial government in New Zealand, which ignored them. This has led some, such as Māori lawyer and academic Moana Jackson, to argue that the real party to the Treaty is not “the Crown” but “Kawanatanga” or Government as defined by the Treaty: that is the executive of the New Zealand Government, formerly the Colonial Government.

the Treaty And a New Zealand Head of State

“[T]he belief that the Queen provided [Māori] special protection was more imagined than real”

— Shane Jones.

If New Zealand becomes a republic, responsibility for the Treaty will be transferred from the New Zealand Crown to New Zealand’s new head of state. As shown above, this is the default legal position. New Zealand Republic’s policy is that we will enshrine this in the law. Keith Locke’s Head of State (Referenda) Bill had a simple clause that would protect the Treaty of Waitangi. More on this below.

The legal reality is that the Treaty itself is part of New Zealand law because of the Treaty of Waitangi Act 1975. This Act came about because of a ruling by the Privy Council in 1941. The court held that in order for the Treaty to have validity in New Zealand law, it would have to be adopted into the statute books. Since that case, many campaigned for an Act of Parliament to do so, but it wasn’t until the third Labour Government passed the Treaty of Wantangi Act in 1975 that this occurred. The Treaty of Waitangi is a schedule to the Act.

We believe there are a number of benefits to the Treaty relationship from becoming a republic. A New Zealand head of state would have increased mana to act as an independent arbiter in the relationship between Government and Māori.

A Treaty Clause: protecting the agreement

New Zealand Republic campaigns for a New Zealand head of state. Part of that is ensuring that the legislation (or a Constitution, if that’s the proces we follow to become a republic) has a specific clause protecting Te Tiriti o Waitangi - The Treaty of Waitangi. The Constitution proposed by Sir Geoffrey Palmer and Dr Andrew Butler has the following clause:

On Commencement of this Constitution, all rights, duties and obligations of the Crown in right of New Zealand under the Treaty and under Treaty settlement agreements and related statutes vest in and are assumed by the State.

Keith Locke’s Head of State (Referenda) Bill had a similar clause as well. This would ensure there is a clear transfer from the New Zealand Crown to a New Zealand head of state.

A head of state as Guardian: nga kaitiaki

While there isn’t specific agreement on the title of a New Zealand head of state, we suggest one name that could be used is Kaitiaki or Guardian (this wouldn’t be unusual internationally - both the President of Ireland and Head of State of Samoa have titles in their respective languages). This is because the head of state would be a non-executive office with limited reserve powers to “guard” our democracy and the democratic process, but also as the Guardian of Te Tiriti o Waitangi - the Treaty of Waitangi.