Our constitution is unwritten. Tyson Hullena explores the benefits of our constitutional arrangements and how its interaction with Te Tiriti presents great opportunities for Aotearoa as a whole.
The constitution of Aotearoa is in a constant state of flux. Our constitution has slowly and reactively changed to reflect societal preferences. Each reaction has added its own flavour, influencing the constitution in a different way.
The purpose of this piece is to discuss and track how our constitution continues to change. This, in large part, is tied to how the government of the day has treated Te Tiriti o Waitangi. This has manifested in an increase in the number of statutes that include “Treaty clauses”, the extent to which Crown decision making has been subject to legal challenge, partnership with iwi over the management and protection of natural resources (including by legal personhood and co-governance) and, more recently, active consideration of tikanga Māori and how that might affect the legal rights of all people.
In exploring these ideas, I have had the benefit and pleasure of being able to discuss them with two of the prevailing minds on the matter – Sir Kenneth Keith and Justice Tā Joseph Williams. I am thankful to each of them for their insights and have attempted to record them in a way that reflects the depths of the conversations we had.
Power and the state
Generally, a constitution is about public power – the power of the state to govern. It establishes and defines the major institutions of government and their key powers and regulates the way those powers are used.
A constitution is how we give a unique voice to our governance arrangements. In Aotearoa, the single underlying principle to the constitution is democracy – the Queen reigns, but the government rules, so long as it has the support of parliament.
There is no doubt that Te Tiriti o Waitangi has had the biggest impact on constitutional change in Aotearoa. At a high level, Te Tiriti recognised that there were two voices that could contribute to the constitutional arrangement of Aotearoa (although that is not how it was immediately interpreted or actioned). The evolution of the principles of Te Tiriti and their application continue to impact how Aotearoa is governed.
A constitution was imposed on Aotearoa. Indeed, the country's first constitution acts were passed in 1846 and 1852 by the British parliament.
Before colonisation, the idea that all citizens had rights against a sole, governing state, was unfathomable. Iwi collectives (or nations, as Moana Jackson preferred) were each governed by an intricate set of principles based on relationships with and between people, the land, and the surrounding natural resources.
There is a considerable difference between the core values of a constitution originating in the United Kingdom compared with a constitution based on a Māori decision-making framework, such as tikanga Māori. Where preserving individual rights against the world at large might be a central theme of a constitution, tikanga would subordinate the individual to the collective and prioritise physical and spiritual aspects of the world, of which the collective is but one part.
An “unwritten” constitution
Most other jurisdictions, such as the United States, have a written constitution. The New Zealand constitution is “unwritten” in the sense that it is not a singular, codified document.
The main features of our constitution are found in several documents, including the Constitution Act 1986 and other statutes, UK statutes, constitutional conventions, court decisions, and Te Tiriti.
Our constitution is continuously changing, particularly through amendment to older key statutes, the creation of new statutes, or by court decisions. Those changes keep the constitution up to date by reflecting the will of the majority (who elect members of parliament) and through challenges in the courts. If the constitution was written, key legislation and cases would need to be specified, making it harder to change.
There are contrasting views as to whether Aotearoa should adopt a written (and therefore, less flexible) constitution. On the whole, there are (in my view at least) more reasons for retaining our current, unwritten constitution. One reason is that it allows Aotearoa to more easily accommodate demographic and societal changes. That, in turn, helps to lessen the possibility of ideas (and ideologies) becoming entrenched (as in the United States, for example). For instance, if the constitution was written at a time where Te Tiriti was a “simple nullity” or when marriage was reserved for relationships between men and women only, then Aotearoa would be very different (and almost certainly less desirable).
Te Tiriti as a source of constitutional change in Aotearoa
English law was only ever intended to be a starting point for New Zealand. The English Laws Act 1858 specified that the laws of England were only ever meant to apply “so far as applicable to the circumstances of New Zealand”. The same must be true for the constitution.
Aotearoa was slow to move away from its Westminster starting point. Today, nearly two centuries after it was first signed, Te Tiriti is now widely regarded as the founding document of Aotearoa. There have been other changes to our constitution, particularly around the inclusion of Māori, and more recently, tikanga in governance. These are some examples:
The Māori seats
The creation of the Māori seats in parliament was an early step away from the traditional Westminster parliament. The New Zealand Constitution Act 1852 was responsible for this (at least in part) because it provided voting rights based on land ownership.
At the time, Māori land was held by the collective (whānau, hapū, and/or iwi), and there was increasing demand for land from the growing migrant population. The New Zealand Constitution Amendment Act was passed in 1857, enabling certificates of title to be granted to individual Māori, thereby undermining the Māori system of communal ownership. As a result, the colonial government and settlers owned more than 90 percent of the North Island by 1900.
The Māori Representation Act 1867 was passed in that context: the creation of individual title and the sale of land based on a foreign ownership regime (and values system). This resulted in the estrangement of Māori from the political system. So the Māori Representation Act was a useful way of placating the growing Māori political resistance at the time. Four Māori seats were created to represent approximately 56,000 Māori. The remaining population (approximately 171,000) enjoyed the representation of the remaining seventy-two seats.
The 1986 Royal Commission on the Electoral Commission considered Māori representation. The commission accepted the signing of Te Tiriti as the beginning of constitutional government in New Zealand and that it recognised the special position of Māori people. The Royal Commission noted that more could be done to recognise and protect the constitutional importance of Te Tiriti and Māori.
The Foreshore and Seabed
In 2004, the Court of Appeal ruled that Māori could make claims to the foreshore and seabed in the Māori Land Court. Three days later, the government announced that it would explicitly extinguish any remaining Māori title without compensation, while recognising the right of Māori to claim more limited rights (by the Foreshore and Seabed Act 2004). The move was motivated by the backlash from the non-Māori electorate, who would not tolerate the private ownership of beaches.
The political battle surrounding the foreshore and seabed changed the political landscape in Aotearoa. The Māori vote, and Māori seats, were pushed to the fore. There is now genuine and hard-fought competition for the Māori vote. Māori issues are no longer matters for placation or mitigation. There is real competition and desire between most political parties to include pro-Māori policies. Unintentionally, the government reaction in 2004 motivated and unified the Māori voice. Had they not explicitly extinguished Māori title in the manner that they did, this change may not have occurred.
The Treaty settlement process and legal personhood
The Waitangi Tribunal was established to investigate Māori claims that the Crown breached the principles of Te Tiriti or Crown duties. In particular, this includes the duty to act reasonably, honourably, and in good faith as a Treaty partner. Although tribunal findings aren’t binding, they can help to build political pressure to encourage the Crown to take action and create publicity around breaches by the Crown.
There remains a strong political dimension to the Treaty settlement process. The democratic reality is that the majority of New Zealanders are not in favour of returning property rights to Māori.
The quasi-public nature of iwi authorities and post-settlement governance entities recognises that iwi can have legal personalities. That is recognised at the conclusion of a Treaty settlement, where the settlement legislation creates an entity that represents the iwi and its decision-making power.
Settlement negotiators have worked hard to find ways to return natural resources to iwi, without exposing the Crown to the backlash of the majority (as was the case with the foreshore and seabed). The resulting settlements have changed the legal landscape in Aotearoa by providing innovative governance solutions that provide for the return of rights in natural resources.
For example, the Waikato River, the Whanganui River, and Te Urewera settlements prioritise the natural resource as though it is a tūpuna. They subordinate the individual to focus on and preserve the health and wellbeing of the natural resource. Those settlements created an entirely new kind of governance arrangement between the Crown and iwi, whereby each party holds equal decision-making power in the co-management of the natural resource.
Legal personhood adds a third layer to the governance of natural resources – the natural resource is separately represented. Te Awa Tupua is a legal person with the same rights, powers, duties, and liabilities. Te Awa Tupua is recognised in law as “an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements”.
Legal personhood, as a method of returning natural resources to iwi, signals a move away from a property rights-based model. Instead, the focus is on principles. Decision making is focused on the health of the river and must recognise and provide for the intrinsic values that represent the essence of Te Awa Tupua.
Te Tiriti in legislation
Te Tiriti and its principles are referenced in various pieces of legislation. The extent to which Te Tiriti has teeth depends on the surrounding wording. Where it is not specifically referenced, it is an interpretive aid and a relevant consideration – there is no separate right granted to Te Tiriti nor obligation flowing from it. That does not mean that where a statute is silent on Te Tiriti, that consideration of Te Tiriti is excluded. The court will not be constrained in its ability to respect the principles of Te Tiriti unless parliament makes that intention clear.
Recently, there has been a trend to give more definition to the principles of Te Tiriti and away from more general, free-standing clauses. The question is no longer whether or not Te Tiriti has teeth, but how those teeth appropriately bite.
The State-Owned Enterprises Act 1986 is a good example of an early, free-standing Treaty clause in legislation: “[n]othing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”. That provision was at the centre of much litigation, negotiation, and further legislation.
In contrast, Section 12 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 sets out the specific ways the Act recognises and respects the Crown’s responsibility to give effect to the principles of Te Tiriti. Parliament has been decidedly more specific about the recognition of Te Tiriti obligations and principles in legislation generally.
Tikanga is the first law of New Zealand. It varies between rohe and has continued to operate and evolve. Tikanga is undoubtedly a part of the common law of New Zealand.
The extent to which tikanga interacts with the common law is still being determined. The courts have recently considered whether tikanga might allow claims to be argued on behalf of an appellant after their death, whether the principles of tikanga must inform the development of tort law in New Zealand (including in the framing of a new tort), and whether the court can make a ruling based on tikanga as to whether one iwi has “primary” mana whenua over another.
The judiciary has been ahead of the game in educating judges about tikanga through annual workshops. There will be some apprehension in deciding on tikanga (the Ngāti Whātua Ōrākei decision is one such example), so it is important to equip the judiciary with a basic understanding. Pūkenga (experts) and counsel will be responsible for ensuring that tikanga is properly explained (and is done justice) before the courts.
Now that tikanga is being considered by the courts, it is time for mainstream New Zealand (including those supporting our decision makers) to up its game. If it isn’t already, tikanga will inevitably become integral to our constitution and governance framework for Aotearoa.
The uniqueness of Aotearoa
Our ever-changing constitution makes Aotearoa unique when compared with other constitutions. Aotearoa has carved its own governance path, with the Westminster framework as its starting point. An unwritten constitution suits the flexible and reactive nature of our government. It is fit for purpose and has allowed for adaptive change of governance to remain in touch with societal needs.
Each of the above examples illustrates the greater acceptance of the changing role of Māori in governance. The Māori voice is now a fundamental part of our constitution. The collective voice is increasingly representative of Aotearoa as a whole.
The method by which change is sought has also evolved. While early changes arose on the back of protests and political activism, they now appear to be occurring in our courts or by inclusion of Te Tiriti in legislation.
This ability to change demonstrates the strength of the constitutional position in Aotearoa – we, as a country, are able to adapt and change to reflect the unique society that exists here. That flexibility underpins our identity as people of Aotearoa, and this sets us apart from anyone else. We can (and should) be proud of that. Our constitution is a taonga.
The public service plays an important part in the development of our constitution by its role to help the government of the day pursue the long-term public interest and facilitate active citizenship. Acceptance of the role of Māori in governance did not happen by mistake. A well-informed public service was part of that change, recognising that Te Tiriti required more recognition than it was receiving.
That said, there is more change to come. A more tikanga-centric constitution is likely to be on the horizon. Now that the Māori voice is stronger than ever in governance arrangements across Aotearoa, only time will tell what that constitution will look like.