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Why Treaty-based constitution 'a disaster for New Zealand'

A leading academic says it would be a disaster to adopt a written constitution incorporating the Treaty of Waitangi, something the Maori Party demands.

Canadian James Allan, who taught law in New Zealand for many years and is now the Garrick professor of law at the University of Queensland, says he would “run a mile from entrenching or incorporating the Treaty into any such instrument”.

“No one knows what it means when applied to any specific issue, so all you will be buying are the views of the top judges instead of your own, the voters.

“That’s not a trade I would ever make,” Prof Allan says in a paper he has just written for the New Zealand Centre for Political Research.

“The Treaty has little content in its few short paragraphs and talk of its ‘principles’ inherently involves a lot of ‘stuffing it full of latter day content that no one at the time imagined or intended.’

“And if, as is overwhelmingly likely, the top New Zealand judges adopt the same sort of ‘living tree’ interpretive approach that we see today in Canada, Europe, and among most or many of the top judges in the US and Australia, then there is absolutely no predicting in advance what may be imposed on Kiwis some time down the road.

“Remember, the words can stay exactly the same but their imputed meaning can change and alter as the top judges see fit.

“And you know what? The elected parliament won't be able to do anything about it.

It trumps parliament

“That’s the point of a written constitution. It trumps parliament, it overrides parliamentary sovereignty, it enervates democracy.

“Now that may be a good thing if you reckon you can get a more favourable deal out of a committee of ex-lawyer judges in Wellington than you can out of the democratic process.

“But for democrats like me it is an appalling prospect.”

Prof Allan wound up his paper for the NZCPR by taking a swipe at Prime Minister John Key and MMP.

“I’m not overly sure that Mr Key is all that reliable on these sort of issues.

“He seems to me, from over here across the Tasman, to be a man who courts popularity rather than standing up for what will benefit New Zealand in the long term.

“One of the most important issues in my mind for New Zealand had always been to rid the country of one of the world’s worst voting systems, MMP.

“Mr Key, by and large, stayed out of that debate, making a few perfunctory anti comments but doing little else.

“But if he thought MMP was holding back New Zealand’s ability to prosper in the modern world – as I do – then he should have taken the risk of getting actively involved. The result might have been different.

“I still worry about New Zealand’s prospects under this lousy voting system that puts the major political parties at the mercy of small ones that garner barely 1 in 20 of the votes, but who can use their ‘kingmaker’ status to demand all sorts of things – even a proposal to look at moving to a written constitution that locks in the Treaty.

“This is a terrible idea. It needs to be knocked back and I have my fingers crossed that you can all achieve that outcome.”

More by Rod Vaughan

Comments and questions

Ha ...wonderful !
Incredibly refreshing to read an academic put something in plain English that reflects the mood of most.
On John Key...."“I’m not overly sure that Mr Key is all that reliable on these sort of issues."
Congratulations to Prof Allan for putting a decent shot across the bows of some I am sure who are plotting a deceitful agenda as we speak.
Thanks Mr Vaughan for posting this enlightened article.

Agree but for your comments around Key. While I am a bit oif a Key admirer, I can agree with the authors comments on him in this article but "plotting a deceitful agenda" ? Really ? I don't believe any of our politicians plot deceitful agendas (even those greeny pillocks). I think that they all have genuine and sincere intentions albeit differing plans and methods - OK, maybe not Winston. :-)

A constitution worthy of the name encapsulates all the values held dear by all members of the society it purports to represent and protect. There is no more elegant a way of enshrining human virtues within a political system than by building a constitution through consensus. So lets build trust and lets talk.

I wholeheartedly agree with every point made in this article.

The Treaty of Waitangi is much like the Bible, in that it can be interpreted in so many different ways and no one actually knows how it was intended to be interpreted. Some groups use the Treaty for their own personal gain and have little interest in its intended purpose. We need to abandon the Treaty altogether and move forward otherwise New Zealand will be left behind by the rest of the world.

The Treaty is a symbol of all that is wrong with NZ. Ditch it fast and then maybe commonsense can rule again.

The Treaty, itself, has been a disaster for NZ; never mind about enshrining into a constitution. Just ask NZ'ers living, overseas, and they will say the best thing is not having to put with Maori's grasping ways.

Ah pakehas grasping ways. They are the greedy thieving frauds.

How is it even possible for a race based party like the Maori Party with minimal support to ever be able to get this into our constitution when the majority don't want it. There is something very wrong in this country if this happens. It is high time this document was binned.

And what's more MMP should have seen the end of the Maori seats in parliament along with it. If ever there was an example of overt racism the archaic view that singling out a particular race for special treatment somehow prevents discrimination when as can clearly be seen it encourages the exact opposite.

Wise words from James Allan. One does not have to be Einstein to recognise where this constitutional review is heading, given the 'stacking' of the 'committee'.
The statement regards Key being unreliable "on these sorts of issues" is spot on. To date we have seen no evidence of Key standing up to the Maori Party on any of their 'issues'. Remaining in power it would seem is the focus of John Key, regardless of the cultural mess and racism policy being trundled out. Grow some balls Key, you are failing miserably as a Prime Minister. Start being a leader, representing ALL of the citizens. Perhaps the Queens representative, the Governor General could step in and put a stop to all is obvious Key is not capable or willing to put a stop to the ongoing greedy demands of a minority group. The Treaty...what a crock!!

New Zealander's should demand that the Mori Ori's rights be represented first and foremost in any consitutional amendments as the first and rightfull owners of land in New Zealand. Any constitutional amendments must recognise the injustices done to them and put in place a tribunal and greivance process whereby claims can be heard and land and property rights redistributed to correct any substantiated injustices done to them.

That's racist! Everyone's thinking it I'm just saying it!

Moriori are early maori arrivals. They are one and the same. (And they werent signatories to any treaty were they?)

Except that we can't do that because they all got scoffed....

"How is it even possible.."?....thank MMP for that. It is also why the Peter Dunns of this world have a permanent seat at the government trough, and Winston Peters can have his 'baubles of office' even after disparaging them.

Actually the Peter Dunne's have a seat because they are consistently voted in by their electorates - which is not something that MMP is responsible for or that would be altered by changing from MMP to a less representative electoral system.

If he wasn't a Canadian, I'd have him appointed to the Clark-contrived highest honour of being amongst the 20 greatest living Kiwis.
Than again, the Minister of Pork and Troughing, one J Hunt, is an he could make way for the great James Allan....a realist, with courage....a rare breed in this PC world.
I salute you, Sir James. (any bets Key would do that????)

Wow he is a legend. We need more smart people to speak their mind and not be afraid the gay Maori tree hugging liberalists will eat them.

Wouldnt call willie that.

Maori are past masters at re-inventing history, especially since the Treaty was signed. E.G. claiming it is a partnership. What absolute cr*p! The last thing we want is a race based Constitution.

A race based constitution...... we already have it just not in writing yet. Their are two laws in New Zealand, one for non-maori and one for the rest. At least putting it in writting would be honest instead of apeasing anyone who claims to have a drop of Maori blood in them by giving them some stuff for free, incentivising them to be bludgers.

An australian based canadian lawyer. What an unlikely blend of attributes to bring to a discussion about a deeply nz issue like the treaty. The treaty is the treaty. You cant change a contract just because you dont like it.

Its a contract with the British 150 years ago. I suggest you take it up with them. The treaty must go it is one sided and Maori don't honour their side on if anyhow. Take the clause ' Maori must obey the laws of the land ' for example.

Its a contract with the crown. If you advocate breaking this contract unilaterally, what other contracts do you propose should be breached by people who change their minds?

The Treaty is less of a contract and more of a curse! It's about time NZ became a colourblind state.

The Treaty of Waitangi was never ratified by the British. The notion the British government intended to give the Maori settlers more rights than British settlers is preposterous; only those who have never studied science, that is, reality, could ever think otherwise. In fact, the treaty is nothing more than some scribble on a scrap of paper by a sick sailor., with an overnight translation by a missionary.

We now have a generation of sullen New Zealanders who don't know just how relieved their Maori ancestors were to see their European ancestors. Living under bracken in constant fear of being killed and eaten, dead before 35 with their teeth worn out chewing roots, leaving the Stone Age must have seemed a miracle. Gaining Crown protection from other Maoris, now with firearms, became crucial to survival.

Key doesn't believe in any anything except himself. That's modern politics: David Cameron and Francois Hollande are no different. Democracy is not a natural state. I don't see it lasting in the UK due to galloping Islamisation and it certainly won't survive Maorification here. We are already seeing the rise of a new aristocracy.

Perfectly put Dennis. I concur!

Dont let the facts get in the way of your prejudiced opinion will you. Living under bracken in constant fear of being eaten? What cr*p. Havnt you seen the mighty pa sites dotted all round the country? Much rather have lived in 18th century aotearoa than sulked in squallor and filth of england fearing the hangmans noose for stealing a loaf of bread. Poor settlers. Thrown to the mercy of the powerful maori after being fooled into buying non existant land. Lucky for them maori values of manaakitanga, wairuatanga and aroha allowed them to stay rather than wiping them out. Do you treat all your hosts with such distain?

Dennis you are an idiot, clearly you know little if anything of nzs history, and like most nzers never bothered to find out the truth either, just blert out your prejudice

Blert? Blurt. And you expect me to take you seriously?

wiped out by a few savages? your funny - tyhe bristish were the most powerful nation on earth at the time and if they wanted to could have wiped out all maori with ease- muskeets against greenstone clubs hmmmm You sir are a idiot- take your blinkers off mate.

You are the eurocentric ignoramus. The british army were here fresh from the crimea for 10 years trying to defeat a few savages with greenstone clubs. They couldnt. Read your history. Start with james belich if youve got an open mind which i doubt. The maori had muskets from their trade with the usa and australia and from pakeha here. Oh and coincidentally, have you ever noticed how many maori are in the armed forces
these days? A recent vc winner springs to mind. Maori were and are a vigorous, adaptable martial race now using weapons other than military ones to pursue justice. You are in a racist minority mate.

I suppose those maori and pa's would stand up to cannon fire as well- your an idiot mate- racist? huh that old tactic I will be gladly called a racist by your lot (radicals) as it is fast changing its meaning to someone who is prepared to stand up against maori radicals, the treaty money trough and the rewritting on NZ history.
The crimea war started in 1853 (so how is it relevant to pre 1840?)and involved hundreds of thousands, there were only about 70 to 90 thousand maori in nz around 1840- and all split by iwi- not a united force- but don't let the facts stop your dribble mate - we are all use to history being changed be the likes of you to suit.

Why don't you grow a pair and least put your first name on your Post- its not Hone H is it?

You would have been one of the first casualties e hoa. Yum. Build a pa. Dumb pakeha bomb it. Clever maori ambush the idiots as they charge the empty pa. Oh and the landwars i am refering to fought in taranaki, waikato and bay of plenty occured in the 1860s. Te kooti and titokowaru carried the fight 2 the settler govt in the 1870s after the british troops gave up and abandoned them. Captain james cook estimated there were 250000 maori around when he was here. Ever heard of the word alliance? Thats what pakeha faced. You think the settler govt won? Hehehe. Read your history before you embarrass yourself more.

Existant for existent, distain for disdain; not much attention to detail, eh?

The Maoris never invented the wheel and written language, the British the steam engine and industrial revolution. You've been brainwashed by fools.

If you want facts, read Janet Davidson: The First Settlement of New Zealand. Can't find it? No, it's disappeared. Once common in the libraries, all copies have been stolen or removed. Why? Revisionism.

You think I am a guest here, in my own country? Are you completely mad?

Poor dennis. Sorry about the spelling mistakes. Its a global village dennis. Good ideas get shared around...those that are ridiculous get binned, maybe a bit like that book. Have zou ever bothered to look at maori carvings? Its a form of writing u fool. And no you belong here now in your country because the original hosts arksd you to stay (only if you behaved civilly) through the treaty.

Dennis the dictator denies democracy. Masticating maoris manuever for meal..

About time this issue got an airing in mainstream media. It should be on the front page of every daily paper in the country. It is an issue of greater consequence than the economy, education reviews, Canterbury earthquake etc. Shame on the news editors of NZ for remaining so quiet on the constitutional review.

If anything resembling the treaty is enshrined in the constitution we will have countless millions of taxpayers money spent on endless litigation through the courts with findings (as all
future government's hands will be tied) made that continue to favour Maori who have benefited from this all so far. The result will be that our country will never get out of this mess and be able to put this all behind us and move forward together. We have to stop this racist agenda now!

Evil prevails when good men do nothing, but blog!

So, are you for the writer of this article or agin him?

100% in support of the writer.

The "treaty" firstly supports the current govt's right to govern. The Maori party are central players supporting the" treaty" (and this govts right to govern NZ).

How many of the ones making comments are lawyers or have an understanding of the "treaty".
From what I've read its two people, the rest are spouting ignorance( inc James Allen's comments on the "treaty"). Especially those racist commentators.

Twadle, The treaty must go and be replaced a constitution that makes all New Zealanders equal.

Shakespear; Read the treaty as it stands...forget all the barstadised interpretations. In one of the three clauses you will read; " equality of all subjects of the Crown"

Tell everyone just how you see that clause being adhered to in 2012?

I rest my case.

I totally agree with everything James Allan says as I've long been of the same opinion. Key is a total disaster as a Prime Minister. His former profession was as a Trader and he is continuing down this road, trading our country away so that he can remain in power. This is obviously his main focus, otherwise why isn't he doing what is best for everyone and not allowing the Maori Party to virtually run the country?

Anyone with a modicum of common sense surely can see how our country will be never be the same again if this racially stacked Committee has its way.

Key and his cohorts' actions are all beyond belief actually. To think I originally thought he would make a great Prime Minister. I quickly learned how wrong I was.

Grundle ,why don't you guys read the original treaty in Maori,( The English version is bastadised) see who signed it and who is around now that signed it (and interpret it correctly ).

Treat all equally, because that action you should always do anyway has got nothing to do with an old "treaty".
Its just right thinking.

This is where Maori are so very adept at 'clouding' issues. Forget all the many interpretations and just go with the intent of that particular clause.......Equality of all subjects of the Crown....Simple aye!!! That clause (and the other two clauses) mean exactly what they say. But of course Maori don't want 'simple translation' as it dosen't suit their purposes.

I find your comments re; "who is around now that signed it" strange to say the least. Are you suggesting the written word changes over time??

There is no room for any alternate interpretation, whether Maori or Pakeha.

Wow, what a collection of NZCPR anti-Treaty fundamentalists - Re-creating history. Re-interpreting the Treaty. Referring to as Maori greedy racists. Forgetting that our ancestors were traveling about in wooden sailboats and wearing wigs in 1840 and yet suggesting that it is only Maori who can't apply the Treaty to modern technological advances. Golden. Given that the Māori demographic, power and wealth is growing and the fact that most contributors here will rely on a largely brown taxpayers to pay for their super - maybe some people here might think twice about what they say about them.

Finally, James Allen is right to be concerned about the Treaty featuring in the NZ constitution. It has to. The government derives its right to govern from that document.

Bron taxpayers- paying tax from your dole doesn't really count!
iwi pay bugger all tax due to thir maroi trust status- so where is this tax money coming from?

Pay out the land claims (not the water, air and sky however)and then the treaty can be treated as it should be a historical document with no relevance to modern NZ. It should be no where near any NZ constitution.

Wheres the tax money coming from?From the taxpaying 20% of nzers who identify themselves as having maori heritage. Justice, liberty and the rule of law for all regardless of race or creed. Um just a small question. Who does own the air? Whoever does has got to stop the dirty b......s from pouring pollution into it.

Any move to a written constitution must be a forward looking one. The treaty settlement process should be completed (for better or worse). Following that a written constitution should be produced outlining a New Zealand we all want to live in. We are all in the same waka. We should be weary of a written constituion that specifically mentions a particular section of the community. Demoractric principles and the rule of law clearly expressed should be sufficient to protect all New Zealanders.

Grundle sorry you can't understand law (or how legal interpretations of meaning are important to the rule of law, thats why what I mentioned it .The people that signed the document as it is important, the intention of the document and the people that signed it is important under rule of law ).

#22 The govt itself has perpetuated the one nation but two cultures.
And we have rule of law, and when not enforced by the judicial system it fails us.If rule of law is failing us now, a new rule of law will not change wrongdoings (or protect the individual from the corporation). You talk about the idea of democracy as though it exists, I assure you we don't have a democracy.
Is the treaty going to stop the sale of the rest of NZ, if it can great.


Well written James Allan, well considered. James is only saying what most thinking New Zealanders already know and understand. So why aren't the New Zealand media getting in behind this. Well done NBR! We need a colour free New Zealand, united we stand, dived we fall. Abolish Maori seats, lets remember our past but put it all behind us and all move on for a better New Zealand!

IWI - I want it

So many ignorant people posting with no knowledge of the law at all! Makes me sick to think I live in a country where the voters are complete fools. I agree somewhat with the article, a constitution should start as a blank piece of paper, that doesn't mean I oppose the Treaty, but it is just too grey to build a constitution off of. Nevertheless, the principles of that document should be acknowledged and applied to all NZs if we were to write a constitution.

For all you fools who think anyone has benefited off the Treaty need to think about the 150 years Maori lived in poverty while the government that represented them passed act after act that destroyed their culture and kept them in poverty. One day the ethnic make up of this country will look completely different than today and when we (Pakehas) are the minority we'll be begging for MMP so ease up on the criticism of that wonderful system please.

The argument above about the NZ wars. Well, lets be honest the British could have levelled this country if they wanted to. But, put it into context, would the British have fought a war over this country given its location, its resources, and the fact they were engaged in almost every other continent in the world soaking up their resources? History tells us their answer was NO. Fact is, the Treaty was all they could do. As our beautiful country just wasn't worth fighting over (several years of expensive war to defeat Maori vs a Treaty signed in a matter of months), of course you'd chose the latter.

We need to start respecting each others opinions and before we descend into the usual racial posts actually get some good debate going here as I agree with 99% of you - this issue needs more attention!