New Zealand Constitutionalism

I. New Zealand Constitutionalism

New Zealand is a nation of around 5.2 million people in the south of the South Pacific. There are two main islands, imaginatively named the North Island and the South Island in English, which together are around ten percent bigger in land area than the United Kingdom. According to the 2023 New Zealand Census, around two thirds of New Zealanders are of New Zealand European ethnic origin, mainly from the U.K. 17.8% are Māori, 17.3% are Asian, and 8.9% are Pacific peoples.

New Zealand has an unwritten constitution and no supreme law.3 There is a Constitution Act 1986, which contains certain provisions establishing or recognizing the branches of government. But it has the status only of an ordinary Act of Parliament. Parliament is still sovereign in New Zealand. The judiciary has no power to strike down legislation. The New Zealand Bill of Rights Act 1990 (Bill of Rights) is explicit in providing for that under Section 4. The Executive government is required to command the confidence of a majority in the (presently, 123 member) House of Representatives (the House)—the unicameral Parliament.  Only a handful of key electoral provisions require more than a simple majority to be amended or repealed.4 Since 1993, the primary check on Executive government is the electoral system of mixed-member proportional representation. It is very rare that any single political party commands a majority of the House, so political parties are required to negotiate over the formation of a government.

To American eyes, it might appear that New Zealand’s constitutional arrangements are fragile and perilous. But the strength of any constitutional system depends not only on written provisions and formal requirements. The nature of any constitution, and the ultimate test of its strength, lies in how it operates in reality. Constitutional realism holds that the meaning of a constitution, including a so-called written constitution, exists in the understandings and actions of those people involved in its application and interpretation:

A constitution is about public power and how it is exercised. A constitution is not just a document. It is not even a document. To understand a constitution we need to understand the pathways of power that are more than merely documentary—what factors affect the exercise of power and how? A constitution may have certain normative design objectives, such as to create checks and balances on government action, or to ease the way for government action. But its nature is not limited to one document or several. A constitution is made up of the structures, processes, principles, rules, conventions and even culture that constitute the ways in which government power is exercised. 5

Ultimately, the foundations of a constitution are culturally embedded in its operation through the values of those who operate it and who, inherently, subscribe to a national culture. A nation’s constitutional culture derives from all those factors which reflect and affect national culture as it manifests in attitudes to the exercise of public power. So:

The nature of constitutional norms, and the constitutional culture from which they arise, forms a landscape that influences the likely success or failure, or at least the relative ease or difficulty of acceptance, of any constitutional reform. If a reform is consistent with a constitutional norm, it will likely have an easier road to general acceptance. If it is inconsistent, the road will be harder and/or longer—though not necessarily unworthy of travelling (unless it ends in an abyss). For a constitutional realist proposing reform, it is essential to understand the landscape through which your proposed road travels. Formalist “paper” roads can often give a misleading impression of likely progress in the reality of the youthful jagged New Zealand landscape of the constitution.6

New Zealand political and judicial actors take seriously constitutional conventions—practices and usages deemed worthy of recognition by constitutional scholars and commentators. Having an unwritten constitution highlights the obvious vulnerability of conventions and norms. Ironically, perhaps, the potential of Parliament exercising its supreme power—to change law in any way whatever—usually tends to galvanize attention, commentary, and opposition to attempts to exercise it inconsistently with constitutional conventions.

By contrast, the text labeled the Constitution in the United States of America has historically prevented sufficient attention from being paid to the underlying constitutional norms relating to the exercise of power.7 Despite Karl Llewellyn’s work, the honorable exceptions to this are relatively few and recent.8 The mainstream views of the U.S. Constitution by American constitutional scholars appear generally  to not adequately recognize that the U.S. is now experiencing an atextual Trumpian constitutional moment, in Ackermaniacal terms.9 U.S. constitutional norms regarding the exercise of public power are shifting. But because the text is not changing, the significance of that remains underappreciated.

II. The Treaty of Waitangi/Te Tiriti o Waitangi

New Zealand’s politicized constitution contrasts with the constitutions of states that accord some level of judicial protection to Indigenous Peoples, such as the U.S. and Canada. However, in comparing the politicized New Zealand system with the judicialized Canadian system, it is not clear which system is more effective.10 That is because, ultimately, the protection of minority Indigenous Peoples in both systems rely for their effectiveness on the underlying constitutional norms and the path-dependent evolution of the deployment of coercive power vis-à-vis the availability of legal remedies.

There are particular aspects of the evolution of the relationships between the state and Indigenous Peoples in New Zealand that resonate well with Albert’s conceptualization. There are also some that expand and test it. First, however, I provide some background.11

New Zealand was colonized by Britain relatively late.  Following the voyages of Captain James Cook to New Zealand and Australia in 1769, visits by Europeans gradually increased in frequency and intensity, boosted by the establishment of a British penal colony near Sydney in 1788. At first, European visitors to New Zealand were traders and exploiters of natural resources such as seals, whales, flax, and timber, as well as, from around 1814, Christian missionaries.

The Indigenous Māori people, organized in shifting coalitions of allied and opposed iwi (tribes) and hapū (sub-tribes), well outnumbered Pākehā (Europeans) during this period. But frictions grew. In 1831, a number of Māori rangatira (chiefs) petitioned King William IV for recognition of British friendship and guardianship.  In 1833, the Crown appointed James Busby as “British Resident,” an official emissary to investigate complaints against British citizens.  He facilitated rangatira choosing a national flag in 1834 and fifty-three rangatira signing a Declaration of Independence, He Whakaputanga o te Rangatiratanga o Nu Tireni, from 1835 to 1839.

From 1825 private British colonization efforts were pursued. From the 1830s this coincided with a significant phase of humanitarian influence within the British Government. The British Parliament outlawed slavery and extended the electoral franchise in Britain. The missionaries agitated for British authority to be asserted in New Zealand. Trading increased. Law and order issues developed. From 1837, negotiations and lobbying within Britain over the terms of colonization of New Zealand proceeded in fits and starts, founded on the notion of Māori consent through a treaty. In May 1839, a shipload of British settlers from the New Zealand Company left for New Zealand. In August 1839, the Colonial Secretary dispatched Captain William Hobson of the Royal Navy with instructions to treat with Māori for recognition of British sovereignty over the whole or any part of New Zealand.

The texts of te Tiriti o Waitangi/the Treaty of Waitangi were drafted in Māori and English. The concepts were discussed by Hobson and others at meetings with rangatira and other Māori throughout New Zealand. On February 6, 1840, forty rangatira signed the Māori version. All but thirty-nine of the 530 rangatira who signed te Tiriti o Waitangi/the Treaty of Waitangi by September 1840 signed the Māori version.  But there were important differences in the short Tiriti/Treaty, as I have previously outlined:

The preamble recited Queen Victoria’s interest in preserving Māori rangatiratanga and land (in the Māori version) or protecting Māori rights and property (in the English version) and her appointment of Captain Hobson to treat with Māori for recognition of her kāwanatanga (in Māori) or recognition of her Sovereign authority (in English).

In the first article, the rangatira gave completely to the Queen kāwanatanga of their land (in Māori) or all the rights and powers of sovereignty (in English).

In the second article, the Queen agreed to protect (in Māori) rangatira, hapū (chiefs and sub-tribes) and all the people of New Zealand in their tino rangatiratanga (unqualified exercise of chieftainship) over their whenua, kāinga and taonga (lands, villages and all their treasures) or (in English) the full, exclusive and undisturbed possession of their lands, estates, forests, fisheries and other properties. The rangatira also gave to the Queen the exclusive right (in Māori) of sale of such lands as they were willing to sell or (in English) of pre-emption.

In the third article, the Queen agreed to protect Māori and imparted to them the tikanga [(which encompasses Māori customary law and practice)] (in Māori) or rights and privileges (in English) of British subjects. 12

Even from a summary such as this, it is obvious the differences between the two versions could be expected to create problems, as they did. Having declared their rangatiratanga, or independence, from 1835 to 1839, rangatira could be expected to have understood, on the basis of the Māori version of the Treaty, that it would continue to be protected by the British Crown, while they were now allowing Queen Victoria to set up governance of some sort as well. In London and Sydney, the English version could clearly be understood to involve the cession of sovereignty.

Indeed, in May 1840, while discussions about the Treaty with various rangatira were still underway, Hobson reacted peremptorily to New Zealand Company attempts to negotiate a separate agreement with rangatira in Wellington by making two proclamations of sovereignty over the North and South Islands, by cession and assertion, respectively.13 In English and New Zealand law, it was the proclamations that mattered. A treaty only has legal force and effect if it is incorporated into law by domestic legislation.

The ambiguities in the meaning and legal effect of te Tiriti o Waitangi/the Treaty of Waitangi endure.

III. Albert’s Constitutionalism

I consider how Albert’s framework of constitutionalism applies to New Zealand. I explore the models of recognition and constitutional fault lines Albert identifies. And I consider what he calls judicial enforcement. I do not explore his analysis of the movement from constitutional monarchy to republicanism because that has not happened in New Zealand. And I leave aside his points about supraconstitutionalism and subconstitutionalism, which are less relevant to a unitary state like New Zealand.

A. Models of Recognition

Albert identifies a variety of models of recognition codified in constitutional texts. The example of New Zealand inherently makes the obvious point that these models should not just be about constitutional text. As noted above, focusing on text can obscure more salient underlying realities. I have suggested elsewhere that “a rule should be regarded as constitutional if it plays a significant role in influencing the generic exercise of public power—whether through structures, processes, principles, rules, conventions or even culture”.14

The first of Albert’s models are rules guaranteeing minimum political representation for Indigenous Peoples.15 The Māori Representation Act 1867 has provided for separate Māori political representation in New Zealand since 1867. It was a pragmatic compromise, after armed conflict between the Crown and several iwi.16   It is constitutional in that it influences the generic exercise of public power. It has endured for over 150 years. The Act has the status of ordinary legislation, which may be amended by a Parliamentary majority. From time to time, there are mutterings about doing exactly that. But it has endured and, in 1993 with the introduction of proportional representation,17 expanded in political significance.

The second of Albert’s models of recognition “codifies” the right to self-governance.18 Again, this is a construct of a written constitution, which does not necessarily sufficiently recognise the need to assess the security of constitutional autonomy in reality. This point is made graphically in New Zealand. The “right to self-governance” in Article 2 of te Tiriti o Waitangi’s guarantee of tino rangatiratanga is subject to contestation by the purported cession of sovereignty in Article 1 of the Treaty of Waitangi. The tension plays out frequently in political debates and legal cases in New Zealand.19

The third of Albert’s models of recognition is the requirement on political actors for consultation with Indigenous Peoples on matters relevant to them.20 There is no comprehensive generic requirement in New Zealand law that matches the legal requirement for consultation Albert identifies in other countries.21 Indeed, te Tiriti o Waitangi/the Treaty of Waitangi itself is not incorporated in all areas of law. But there is currently a wide range of areas of law where Parliament has required reference to the Treaty.22 And in interpreting statutes by way of judicial review, the courts have found duties of fair procedural decision-making that require reference to the Treaty.23 Either way, where te Tiriti o Waitangi/the Treaty of Waitangi has legal force, the New Zealand courts have been required to develop its meaning and content. The most salient feature of the substantive principles of te Tiriti o Waitangi/the Treaty of Waitangi is that their substantive, procedural, and reasonableness requirements tend to mirror the substance of the law of judicial review:

If the Crown were to fail to take into account a relevant consideration, take into account an irrelevant consideration, dishonour a legitimate expectation or breach natural justice, it would probably also be breaching the principles of the Treaty of Waitangi. This flows from the courts’ acceptance of the Waitangi Tribunal’s perspective of the Treaty in a relational sense. Procedure looms large in the legal parameters on the relationship between the Treaty partners. The language of partnership and references in the SOEs case on the duty of the Treaty partners to act in good faith, fairly and reasonably toward each other resonates deeply with the law of judicial review. 24

B. Fault Lines

Albert suggests that constitutional reformers sometimes succeed but sometimes fail dramatically, in ways that reveal fault lines.25 He identifies the high threshold for constitutional amendment in Australia, the political economy of secession in Greenland, and procedural miscalculations in a reform initiative in Guatemala.

In New Zealand, in 1985, a Government White Paper proposed that the Treaty of Waitangi and a proposed Bill of Rights Act should have supreme law status against which the judiciary could strike down other laws.26 Adverse public reaction saw the proposal watered down to passage by a majority of the House of the New Zealand Bill of Rights Act 1990, an ordinary statute with no supreme law status and no reference to the Treaty of Waitangi or te Tiriti o Waitangi. This illustrates a relative lack of popular support in New Zealand for the judiciary reshaping New Zealand’s constitutional order in the way the U.S. Supreme Court does. Fairness is a core animating ideal of New Zealand culture, similar to the role of freedom in the United States.27 But “[v]aluing the notion of a giving people a fair go does not necessarily require that you value the judiciary giving it to them.”28

It is also worth noting that, generally, Māori reaction to entrenching the Treaty of Waitangi as supreme law was also negative. The rationale was that Parliament putting the Treaty of Waitangi into law would give Parliament control over it and the ability to amend it or repeal it in future, diminishing its moral and symbolic power as an historical representation of the relationship between the Crown and Māori.

Whether lack of popular support for judicial power is a constitutional “fault line” is debatable. But it is certainly a constitutional feature in New Zealand. I stress above the importance of constitutional culture. That point is particularly significant here in relation to Albert’s identification of the importance of constitutional fault lines. I agree it is important to identify fault lines in a constitutional landscape when considering reform initiatives. But not just fault lines—it is important to identify all the deepest features of constitutional culture in that landscape. In New Zealand:

The Treaty is a bit like Mt Ruapehu [used as Mordor in the Lord of the Rings movies] in New Zealand’s physical landscape. It dominates the skyline of a significant area of the country, though it is often clouded over. It can be hot, or cold. It can erupt unexpectedly. It taps some deep subterranean roots and conflicts with others. To see how deeply the constitutional tension around the Treaty runs, we need to delve below the surface landscape to the constitutional foundations of New Zealand—our constitutional culture and key constitutional norms. 29

C. Judicial Enforcement

Albert examines judicial enforcement in a variety of states and nations through courts applying and interpreting treaties, recognising Indigenous Peoples constitutionally, and moving along the road to self-determination for Indigenous Peoples. I make three points about this.

First, I reiterate my warning against teleological assumptions made at the beginning of this Essay. Since the 1980s, in interpreting legislation, New Zealand courts have facilitated legal recognition of the Treaty of Waitangi. But they did not, usually, over the previous 120 years of judicial decision-making. In 1877 Chief Justice Prendergast characterized the Treaty of Waitangi as “a simple nullity.”30 In general, I suggest a judge, rather than someone else, making a decision is no guarantee that the decision will be of a particular normative direction. Usually, it is likely to reflect general popular attitudes of the time, sometimes with a lag to reflect the age profile of the judiciary, and usually leavened with rational reasoning and a concern for justice being done in the particular case.

Second, there is a tendency in academic debates about the merits of judicial versus political branches having “supreme” power to slide into binary, one-shot, static thinking.31 But constitutional evolution is a dynamic, multi-phase game contributed to by a variety of players, all playing, in a democracy, in the shadow of different versions of “the people.” As Alexander Bickel said of the U.S., “[o]ur government consists of discrete institutions, but the effectiveness of the whole depends on their involvement with one another, on their intimacy, even if it often is the sweaty intimacy of creatures locked in combat.”32 The late Peter Hogg, Canada’s then‑foremost constitutional scholar (and a New Zealander), demonstrated this by analysing the legislative responses to Canadian Supreme Court decisions that invalidated Acts as incompatible with the Charter of Rights and Freedoms.33

Elsewhere I developed the metaphor of dialogue to characterise the different branches of government as speaking in different voices—the voices of politics (the legislature), policy (the executive), and the common law (the judiciary).34 And I applied that to the constitutional dialogue in New Zealand from 1973 to 1993 between the Waitangi Tribunal, the courts, the Executive, and Parliament about the legal meaning and status of the Treaty of Waitangi.35 I summarised an account of that in 2019 as follows: 

As even this potted summary makes clear, the reinterpretation of the legal meaning and status of the Treaty of Waitangi from 1973 to 1993, subtly confirmed in 2013, exemplifies a process of constitutional dialogue. Political pressure led the executive to propose and Parliament to create the Waitangi Tribunal, which subsequently recommended direct legislative reference to the Treaty. That prompted litigation that gave a contemporary relational meaning to the Treaty and, through negotiation with Māori and more legislation, greater legal power to the Tribunal. It has resulted in a reconciliation of authoritative views of the meaning of the Treaty in the context of contemporary New Zealand social, economic, political and cultural conditions. And court decisions have, in turn, guided further decision-making by the Waitangi Tribunal and the executive. Judicial participation in such constitutional dialogue, through courts simply performing their conventional roles, can contribute to protecting the rights of indigenous peoples in a political constitution. 36

My third and final point about the judicial role is about judicial legitimacy. Like any branch of government, judiciaries have a limited stock of reputational constitutional capital—legitimacy. Judicial legitimacy is conserved or expended through judicial decision-making and, perhaps, by judicial comments or public controversies about judicial behaviour. The relative stocks of legitimacy of different branches of a democratic government in any jurisdiction are likely to be influential to the outcome of any significant clash between them, as judged by the “people.”37

IV. Conclusion

I conclude by congratulating Professor Albert on his contribution to international constitutional scholarship. His framework is useful in facilitating exploration of constitutionalism and issues affecting Indigenous Peoples in particular nations and comparatively. It can also be expanded and deepened, by explicitly addressing:

• any teleological assumption about the inevitability of the direction of travel;
• the underlying influence of coercive power in modern nation states;
• how constitutions operate in reality, not only with reference to their texts, including how they are influenced by underlying constitutional culture in a particular nation; and
• the limits of the judicial role, which is performed in the context of constitutional dialogue with other branches of government, and a limited stock of judicial legitimacy.

• 3See generally Matthew S. R. Palmer & Dean R. Knight, The Constitution of New Zealand: A Contextual Analysis (2022).
• 4Electoral Act 1993, s 268 (N.Z.).
• 5Matthew S. R. Palmer, What is New Zealand’s Constitution and Who Interprets It? Constitutional Realism and the Importance of Public Office-Holders, 17 Pub. L. Rev. 133, 134 (2006).
• 6Matthew S. R. Palmer, New Zealand Constitutional Culture, 22 N.Z. U. L. Rev. 565, 567 (2007).
• 7Matthew S. R. Palmer, Using Constitutional Realism to Identify the Complete Constitution: Lessons from an Unwritten Constitution, 54 Am. J. of Comp. L. 587, 591 (2006). 
• 8K. N. Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1 (1934). For exceptions see, e.g., Laurence H. Tribe, The Invisible Constitution (2008); Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (2012).
• 9See, e.g., Bruce Ackerman, We the People: Foundations (1993).
• 10Matthew S. R. Palmer, Constitutional Realism About Constitutional Protection: Indigenous Rights Under a Judicialized and a Politicized Constitution 29 Dalhousie L. J. 1 (2006).
• 11For the following paragraphs of historical background, see generally Claudia Orange, The Treaty of Waitangi (1st ed. 1987); Waitangi Tribunal, He Whakaputanga me te Tiriti – the Declaration and the Treaty, Wai 1040 (2014) (N.Z.); Ned Fletcher, The English Text of the Treaty of Waitangi (2022); Palmer, supra note 3, at 26–35.
• 12See Palmer, supra note 3, at 32.
• 13Orange, supra note 11, at 84.
• 14Palmer, see supra note 5, at 152.
• 15Richard Albert, Decolonial Constitutionalism, 25 Chi. J. Intl. L. 341, 348 (2025).
• 16See M. P. K. Sorrenson, A History of Maori Representation in Parliament, in Report of the Royal Commission on the Electoral System app. B (1986) (N.Z.).
• 17See Electoral Referendum Act 1993 (N.Z.); Electoral Act 1993 (N.Z.).
• 18Albert, supra note 15.
• 19See, e.g., New Zealand Māori Council v. Attorney-General [1987] 1 NZLR 641 (CA).
• 20Albert, supra note 15.
• 21See id. at 352.
• 22See, e.g., Resource Management Act 1991, s 8; Local Government Act 2002, s 4; Conservation Act 1987, s 4.
• 23See, e.g., Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC).
• 24Matthew S. R. Palmer, Indigenous Rights, Judges and Judicial Review in New Zealand, in The Frontiers of Public Law 123, 149 (Jason N. E. Varuhas & Shona Wilson Stark eds., 2019).  See also Huakina Development Trust v. Waikato Vallu Authority, supra note 23. 
• 25See Palmer & Knight, supra note 3, at 16–26.
• 26See Geoffrey Palmer, A Bill of Rights for New Zealand: A White Paper (1985).
• 27See David Hackett Fischer, Fairness and Freedom: A History of Two Open Societies (2012).
• 28See Llewellyn, supra note 8, at 588.
• 29Matthew S. R. Palmer, The Treaty of Waitangi in New Zealand’s Law and Constitution (2008), at 277.
• 30Wi Parata v. The Bishop of Wellington (1877) 3 NZ Jur (NS) 72 (SC). See David V. Williams, A Simple Nullity? (2011).
• 31See Owen Fiss, Between Supremacy an Exclusivity, inThe Least Examined Branch: The Role of Legislatures in the Constitutional State 452 (Richard W. Bauman & Tsvi Kahana eds., 2006).
• 32Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 261 (2nd ed. 1962).
• 33See Peter W. Hogg & Allison A. Bushell, The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter Isn’t Such a Bad Thing After All), 35 Osgoode Hall L. J. 75 (Spring 1997); Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited—Or “Much Ado About Metaphors”, 45 Osgoode Hall L. J. 1 (2007).
• 34See, e.g., Matthew S. R. Palmer, Constitutional Dialogue and the Rule of Law, 47 Hong Kong L. J. 505 (2017).
• 35See Palmer, supra note 29.
• 36See Palmer, supra note 24, at 134.
• 37See Matthew S. R. Palmer, Open the Doors and Where are the People? Constitutional Dialogue in the Shadow of the People, in We, The People(s): Participation in Governance 50, 72–74 (Claire Charters & Dean R. Knight eds., 2011).