23
So the issue becomes, given where we are, what is to be done? If I may be
permitted to address the issue as a law reformer in the New Zealand Law
Commission I would say, at present, nothing. Once the historical grievances are
out of the way and there has been a period of consultation and reflection, New
Zealand will be in a better position to decide upon the next steps we need to take
to bring not only constitutional and legal clarity to the position of the Treaty, but
also the economic, social and cultural position of both Maori and Pakeha. After a
pause we will be able to assess how the resources in health, education and from
settlement assets and the policies of devolution have worked in practice. The
Treaty is not now, never has been, and never will be a silver bullet to solve
everyones problems.
24
These issues do move in cycles in New Zealand, and another cycle of change will
come on Treaty issues but it is not here yet. The way forward lies in the
development of ideas and policy options outside the political and government
environment. Some further activity within the universities and civil society
generally is required. When a sufficient body of work has been done and some
serious debate has been conducted about it, new approaches may arise. But they
are not possible now. And neither am I sure what those new approaches should be.
But they will come in time. I am encouraged that my son, who has had
considerable practical experience on these issues as Deputy Secretary of Justice, is
writing a book that will provide a re-assessment. The scholarly community has
much to contribute in this area.
25
The position of the Treaty of Waitangi in New Zealands constitutional
framework is perhaps the most difficult issue of all. Any revision of New
Zealands constitutional arrangements will require the place of the Treaty to be
settled and the prospect of securing anything approaching consensus on it appears
to be remote. Neither is the current legal position clear. It is generally accepted on
most sides that the Treaty of Waitangi has constitutional importance and is part of
this countrys constitutional arrangements. But there is major disagreement on its
precise role and the nature and extent of its importance. Its formal legal status
may be less important than its influence on the way governmental power is
exercised in New Zealand.