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The Treaty of Waitangi and a New Zealand republic

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The effect on a New Zealand republic on the Treaty of Waitangi is a deal-breaker for many New Zealanders. Lewis Holden explains that it would enhance the Treaty and make the country stronger.

The other day, Brad Webb asked "Where's Australia's Treaty of Waitangi?". In New Zealand, the Treaty of Waitangi (often known simply as "the Treaty") remains a controversial document despite its undisputed status as the document that founded New Zealand.

That controversy extends to the republic debate, and is a key constitutional issue. There are two sub-issues - the constitutional position of the Treaty, and the standing or mana of the Treaty. Thankfully, the former Monarchy NZ Chairman and law professor Noel Cox clarified the Treaty's standing for us:
"In strict legal terms, if New Zealand became a republic tomorrow it would make no difference to the Treaty of Waitangi. Speaking as a lawyer, it’s a long-established principle that successive governments take on responsibility for previous agreements."

The Treaty is sometimes seen as a "deal breaker" for some people; they support a republic on the condition it does not interfere with the Treaty. Some opponents of a republic have tried to raise fears that becoming a republic will override the Treaty or that it will somehow undermine the settlement of Treaty claims. These fears are ill-founded. The issue of the Treaty is not actually that complicated. The Treaty is not a barrier to becoming a republic and a republic would not change or undermine the Treaty’s status.

Becoming a republic is an opportunity to improve the relationship between Māori and Pakeha (European New Zealanders) and the ongoing debate over becoming a republic will help clarify the Treaty issue.

A majority of Māori support a republic. But like all New Zealanders, Māori opinion on a republic is divided. As we will see, the overall number of New Zealanders who support a republic is about 40%. A 2000 New Zealand Herald poll found 63% of Māori respondents favoured a republic, while the 1996 New Zealand Study of Values found 65% of Māori respondents supported a republic. Māori voters are more likely to support becoming a republic than Pakeha voters.

A young Queen Victoria

At the time the Treaty was signed, Queen Victoria was twenty years old and had been on the throne for only three years. Like the Queen today, she was only a figurehead. Britain was actually run by the Parliamentary executive. In discussions held with Māori prior to signing the Treaty, a great deal was made of Queen Victoria's wishes and of her ability to protect Māori. The British representatives spoke in terms they knew Māori would understand and emphasised Victoria as a great Ariki or chief. The concept of Victoria as a constitutional monarch, with only nominal powers, was never fully explained.

When the Treaty was signed by British representative William Hobson on behalf of ‘Victoria, Queen of Great Britain’, he was, in effect, signing on behalf of the British Government under instruction from the Colonial Secretary. The Treaty was originally an agreement between the British Crown and Māori iwi. It was not an agreement between the Royal family and Māori.

In 1947 New Zealand adopted the Statute of Westminster. King George VI became the King of New Zealand independent of his 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 Treaty passed from the British Crown to the New Zealand crown. With the passing of that statute "the Crown" became "the Crown in right of New Zealand". This legal process is nothing new and happens all the time in international law. For example, in 1992 the Russian Federation acquired all of the responsibilities for the treaties of the former Soviet Union when the country was broken up.

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 Parliament that has made apologies and paid reparations to Iwi, not the British Parliament.

With the establishment of colonial self-government in 1853, Great Britain delegated the colony’s governance to the colonial settlers. Confiscations carried out by ‘the Crown’ during this period were prompted by the colonial government, not by the British Parliament. While the British-appointed Governor often fought with colonial Premiers over their policies towards Māori, it was the New Zealand government that ignored the Treaty.

There were several 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” in a practical sense, but “Kawanatanga”, as defined by the Treaty: the New Zealand Government, formerly the Colonial Government.

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. Even the former Chairperson of Monarchy New Zealand, Professor Noel Cox, has stated that this is the case (see the quote above).

There are a number of benefits to the Treaty relationship from becoming a republic. In Treaty terms, an elected head of state would have increased mana to act as an independent arbiter in the relationship between Government and Māori.  
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