The Treaty of Waitangi: A 'Bridle' on Parliamentary Sovereignty?

Abstract

This paper looks at some English legal history as a means of trying to understand how the Treaty of Waitangi may be important to future reforms of New Zealand’s constitutional structures. My starting point is the metaphor of the ‘bridle’ used by the thirteenth century English writer, Bracton, to describe the importance of restraining the arbitrary power of the King by principles of legality and due process. I note the importance of that thinking in the development of a system of constitutional monarchy in place of royal absolutism during the tumultuous years of the seventeenth century in England. Turning to Aotearoa New Zealand I describe the near invisibility of the Treaty of Waitangi in the key documents of the constitutional canon. I also point out that the rhetoric of the Treaty as a foundational compact for the nation is of no weight at all if parliamentary supremacy is invoked to displace Treaty rights. The blatant disregard of due process and putative Māori customary property rights in the foreshore and seabed controversies of 2003-2004 highlight the need, as I perceive it, for finding ways and means to place a constitutional ‘bridle’ on the arbitrary power of parliamentary supremacy. This contribution to the Review’s theme of governance in Aotearoa New Zealand suggests that the Treaty of Waitangi will one day become such a ‘bridle’.