What’s the legal status of the Treaty?
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What’s the legal status of the Treaty?

December 3, 2019

I think the Treaty itself, it has legal status because it’s a Treaty so it’s contained in the Treaty series so it’s, it’s not a nothing at international law. The question I think you are really asking is, what is it in domestic law and I think the answer to that is it’s not yet determined. In terms of its present legal status, it’s half in and half out of the legal system. Part of it is recognised by about 30 statutes but the law at present in New Zealand is that unless it is incorporated in a statute it is not part of our law. The first Chief Justice of New Zealand William Martin thought that it did have effect in domestic law and there were quite, there were a number of decisions of the courts which did treat it as having effect in domestic law but then we rather lost track of that for many years. We should review the bill of rights and we should include, consider, whether or not we should include social and economic rights and we should put all of that together with our constitution act which is currently just ordinary law and we should try and pass it as supreme law, but of course if you are going to do that you need to think about what you are going to do with the Treaty of Waitangi. You cannot renounce your own historical heritage and so that is why the Treaty is central to New Zealand’s constitution arrangements whether its recognised in the courts or whether it isn’t.

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