LAW: Principles of the Treaty of Waitangi

ESSAY
Parliament
has expressly in statute made the principles of the Treaty of Waitangi
mandatory relevant considerations in many public authority decision-making
contexts. This has forced the Waitangi Tribunal, the courts and the government
to attempt to give content to the principles.
Bruce
Harris New Zealand Constitution: An
Analysis in Terms of Principles (Thomson Reuters New Zealand, Wellington,
2018) at 32.

The
so-called ‘principles of the Treaty of Waitangi’ attempt to by-pass the
original treaty. The 1975 Treaty of Waitangi Act, which established the
Waitangi Tribunal, gives the Tribunal the impossible task of reconciling ‘the
Treaty in the Maori language’ (the valid Treaty) and ‘the Treaty in the English
language’ (the fraudulent document) and coming up with a set of ‘principles’
against which to make recommendations.
Margaret
Mutu “‘To honour the treaty, we must first settle colonisation’ (Moana Jackson
2015): the long road from colonial devastation to balance, peace and harmony”
(2019) 49 Journal of the Royal Society of New Zealand 4 at 10.

The
point is simply that Treaty principles can take us only so far on our journey
towards finding an appropriate constitutional place for the Treaty. The
development and application of Treaty principles is an important and necessary
step on that journey but if New Zealanders want to have a genuine discussion
about the constitutional place of the Treaty, that discussion needs to proceed
on a different set of premises.
Carwyn
Jones “Tāwhaki And Te Tiriti: A Principled Approach To The Constitutional
Future Of The Treaty Of Waitangi” (2013) 25 New Zealand Universities Law Review
703 at 704.

Task
Your assignment task
is to write an essay which critiques
the now longstanding statutory practice of referring to and incorporating the ‘principles of the Treaty of Waitangi’
rather than simply ‘the Treaty of Waitangi’ or ‘Te Tiriti o Waitangi’.
In your essay, you
must specifically discuss:
Reasons why successive governments, through
Parliament, have chosen to adopt a ‘principles’ approach rather than
referring simply to ‘the Treaty of Waitangi’ or ‘Te Tiriti o Waitangi’;
Whether you consider a
‘principles’ approach is appropriate. In this part of your essay, you should discuss
relevant commentary which is both supportive of and opposed to this
approach, and explain your preferred position;
Assignment submission
The
maximum length of your essay is 1500
words including footnotes. Marks will be allocated for structure, analysis,
clarity and logic. The New Zealand Law Style Guide should be adhered to.

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