Sovereignty: from the Treaty of Waitangi to the United Nations

The people are sovereign ...
... but not altogether?
One world
Making international treaties
Our family ties
NZ constitutional milestones

Who has supreme authority in New Zealand? The Queen? The Governor-General? The Prime Minister? The voters? Maori chiefs? All of the above? Or none of them?

In 1840, it was clear where sovereignty lay: with the chiefs of the various Maori tribes. The main purpose of the Treaty (in British eyes) was to gain a clear claim to sovereignty over New Zealand.

The English version of the Treaty makes this quite specific, although the original Māori version uses the term 'kawanatanga' instead of 'rangatiratanga', said to be the proper translation of sovereignty.

So after 1840, the British Queen was sovereign. But the world has moved on. In the 21st century, would either chiefs or monarch dare claim sovereign authority over and above that of the people?

The people are sovereign ...

If anyone is sovereign, it is the New Zealand people, through Parliament. New Zealand has a system of government that relies on each of its three parts (the Executive, the Legislature and the Judiciary) balancing the power of the other two. The Executive is, however, drawn from Parliament, to which it is ultimately accountable for its actions of day-to-day government.

The Crown, in the form of the Queen and her representative in New Zealand, does keep certain residual powers for situations in which, for some reason, there is no functioning Government. But the use of these powers is constrained and governed by constitutional convention.

... but not altogether?

However, New Zealanders may need to accept the need for a higher authority than the nation state. Belonging to the Commonwealth, the United Nations, the World Trade Organisation, and other international organisations implies that we accept being a member of a wider community and that, in various situations, we must limit our sovereign ability to do as we like. This could itself be seen as an act of sovereignty: we agree to take on certain obligations in return for the benefits from doing so. One of those benefits is an international system in which there is the rule of law governing relations between states. This means that countries such as ours can look to international rules to protect ourselves in situations where greater size, power and influence might otherwise give control (such as 'the law of the sea'). We ocassionally need to concentrate on improving and defending the multilateral system.

One world

Civilisation has evolved from villages to provinces to nation states – each learning that co-operation achieves more than conflict.

We have chosen to belong to organisations such as the UN because we recognise that we can achieve more together than we can separately. We are also conscious of our regional responsibilities in the Pacific.

But accepting citizenship of the world means not only accepting that we have obligations to others, and rights to interfere across national boundaries when needed, but also that others can constrain our choices.

The people are sovereign. But our definition of ‘the people’ may be changing from ‘the people of New Zealand’ to ‘the people of our world’.

Making international treaties

Parliament has, since 1999, had a role in the consideration of multilateral and bilateral treaties. This supplements the role that Parliament has always had in our constitutional system of approving and enacting any legislation required to implement international treaties before New Zealand can become party to them.

A leading New Zealand international lawyer, Sir Kenneth Keith, now serving in the International Criminal court, has said: “If it was ever true to say that the Parliament of New Zealand could make any law it liked, it certainly is not now”.

The New Zealand statute book, taken alphabetically, extends from the Abolition of the Death Penalty Act to the Western Samoa Act. The usual calculation is that between one quarter and one third of New Zealand public Acts give effect to international obligations and standards.

New Zealand is party to over 2000 treaties. They cover a very wide range of subject matter:

• war and peace
• disarmament and arms control
• international trade
• international commercial transactions
• international communications
• the law of international spaces
• the law relating to the environ-ment
• human rights and related matters
• labour conditions and relations
• other areas of international, economic and social cooperation
• cultural protection.

Sir Kenneth said that the growing pace of globalisation (in some respects returning to the level of a century ago), much greater public awareness, greater democratisation generally and a major extension in the coverage of treaties have undoubtedly led to and highlighted the need for greater parliamentary scrutiny of treaty making.

Our family ties

As a member of the Commonwealth, New Zealand is part of a group of nations that were once part of the British Empire. Though most of our formal ties with Britain have fallen away, two still remain: our retention of the Queen, and her representative the Governor-General, as our formal head of state, and the right of appeal to the Judicial Committee of the Privy Council in Britain.

The right of appeal to the Privy Council has changed. The Supreme Court Bill introduced into the New Zealand Parliament in December 2002 abolished the right of appeal from courts in New Zealand to the Privy Council.

When Margaret Wilson, subsequently Speaker, was Attorney-General in the second Clark Government she said the New Zealand Supreme Court would perform the traditional roles of a final court of appeal – error correction, clarification and development of the law. New Zealand in 2002 was still one of the few Commonwealth countries with appeal to the Privy Council – Australia ended all appeals in 1986.

Unlike the Privy Council, the Supreme Court is able to hear appeals of employment, environment and family court matters.

A court of final appeal in New Zealand means that more people have access to justice, Margaret Wilson said.

The law passed under the second Clark Government provides for an independent Supreme Court sitting above the Court of Appeal with its own judges and separate premises. The Chief Justice, as head of the New Zealand Judiciary, heads the Court and is normally the presiding judge. Four other permanent judges include one judge well-versed in tikanga Māori.

The former Attorney-General said there is no connection between establishing a court of final appeal in New Zealand and the debate about whether we should become a republic. Canada and Australia both have their own courts of final appeal, and they are not republics.

New Zealand Constitutional Milestones

1835 Declaration of Independence
1840 Treaty of Waitangi
British sovereignty asserted
Colonial government established
1841 New Zealand separated from the Colony of New South Wales and proclaimed a separate colony
First courts of law established
1846 First Resident Magistrates’ Courts established
Constitution Act 1846 enacted by UK Parliament then suspended
1852 Representative government established
1856 Responsible government established
1858 First Maori King appointed
1860 Taranaki war begins Kohimarama conference
1862 The Court of Appeal of New Zealand established
1863 Waikato war begins
1867 Separate Maori representation established by creating Maori seats in Parliament
1875 Provincial government abolished
1876 Hui at Te Waiohiki, Hawkes Bay
1877 Treaty of Waitangi dismissed as a “simple nullity”
1879 Adult male franchise for elections to the House of Representatives introduced
1882 Northern chiefs petition Queen Victoria to investigate colonial government and establish a Maori Parliament
1892 Governor instructed to act on the advice of his responsible Ministers when Imperial interests not affected
Opening of Kotahitanga Parliament
1893 Universal adult franchise introduced, extending vote to women
1894 Constitution of Kingitanga Great Council (Te Kauhanganui) published
1900 Maori Councils Act 1900 and Maori Land Administration Act 1900 enacted
1901 New Zealand refuses to join Australia as its seventh state
1907 Dominion status acquired
1912 Political neutrality of the public service established
1917 New Letters Patent issued re-designating the Governor the Governor-General of New Zealand to recognise New Zealand’s self-governing status
1926 Balfour Declaration adopted at the Imperial Conference
1932 Public Safety Conservation Act enacted
1941 Privy Council declares that the Treaty of Waitangi is enforceable in the courts only to the extent it is incorporated into legislation
1945 New Zealand admitted to the United Nations
1947 Full constituent powers acquired
Magistrates’ Courts reconstituted
1948 Universal Declaration of Human Rights adopted by the United Nations General Assembly
1950 Legislative Council abolished
1962 Office of the Ombudsman established
1971 Office of Race Relations Conciliator established by the Race Relations Act
1972 Judicature Amendment Act 1972 liberalises the procedures for seeking judicial review of administrative actions
1973 New Zealand’s original powers of legislation replaced, giving Parliament additional extraterritorial competence
1974 Queen Elizabeth’s title changed to reflect the Sovereign’s constitutional status as Head of State of New Zealand
1975 Waitangi Tribunal established
1976 Fitzgerald v Muldoon and Others decided
1977 Human Rights Commission established by Human Rights Act 1977
1978 New Zealand ratifies the International Covenant on Civil and Political Rights
New Zealand ratifies the International Covenant on Economic, Social and Cultural Rights
1982 Citizens’ access to official information promoted in Official Information Act 1982
1983 Office of the Governor-General of New Zealand patriated
New Zealand Australia Closer Economic Relations Trade Agreement signed
1985 Waitangi Tribunal given retrospective power to consider alleged past breaches of the Treaty of Waitangi since 1840
1986
Some of New Zealand’s statutory constitutional law consolidated and reformed
Reform of the public sector to promote accountability and efficiency
Provision in State-Owned Enterprises Act 1986 gives statutory force to the principles of the Treaty of Waitangi
1987 In the Lands case, the Court of Appeal interprets the expression “principles of the Treaty of Waitangi” in the State-Owned Enterprises Act
1986 Maori Language Act 1987 enacted
1990 New Zealand Bill of Rights Act 1990 enacted
1993 Citizens Initiated Referenda Act 1993 enacted
Binding referendum on proportional representation brings into effect the MMP electoral system
Privacy Act 1993 enacted
Grounds of discrimination prohibited under the Human Rights Act 1993 extended
Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples
1995 Hirangi hui rejects fiscal envelope proposals and promotes constitutional change reflecting Te Tiriti o Waitangi
1996 Proportional representation under MMP introduced
2001 Public Audit Act 2001 reforms Office of the Auditor-General
2003 Supreme Court established as the court of final appeal
2004 Crown Entities Act 2004 reforms accountability regime for Crown entities

Source of Constitutional milestones, with acknowledgement to Professor Mathew Palmer, VUW Dean of Law, who assisted the:
Inquiry to review New Zealand’s existing constitutional arrangements
Report of the Constitutional Arrangements Committee
Forty-seventh Parliament
(Hon Peter Dunne, Chairperson)
August 2005, Presented to the House of Representatives

Find out more from the Constitutional Arrangements Committee report.

Updated 1 December 2005

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