Neil Sands
Chief Justice Dame Helen Winkelmann says Te Tiriti o Waitangi is an integral part of New Zealand’s legal system and hailed the “historic” move last year to make teaching of tikanga in the nation’s law school compulsory.
Winkelmann reflected on the history of Te Tiriti in an address at the Waitangi Meeting Grounds this month that was recently made available on the Courts of New Zealand website, concluding that the 1840 document was “a gift to the nation”.
She canvassed the 1877 Wi Parata case, in which her predecessor as chief justice Sir James Prendergast labelled The Treaty “worthless” and “a simple nullity”
“In that same case, the courts said of tikanga, that reference to Māori customary law in a statute could not conjure into being that which did not exist,” Winkelmann said.
She pointed out that the narrative has changed as “the law – both legislation and the common law – has begun to find space for and engage with the Te Tiriti”
“Today… Te Tiriti is undoubtedly part of the fabric of our law. It is woven through it in strong golden threads, but also flows through the law, shaping and building new patterns,” she said.
“It was at work in the Nelson tenths litigation – where a history of breaches of Te Tiriti finally resulted in judgment in favour of the claimants, and late last year, settlement.”
Winkelmann said today’s courts and tribunals regularly considered the implications of Te Tiriti ” “in so many contexts and ways that I will not attempt to summarise”.
However, when considering Te Tiriti’s impact, she highlighted the introduction of tikanga as a compulsory course in New Zealand’s law schools as a highlight of 2025.
“This will mean that the lawyers of the future will be grounded in the concepts and methodology of that body of law and custom,” she said.
“I conclude by saying this – Te Tiriti was a gift to this nation – it continues to be a treasure.
“There is much to be done to secure the hopeful vison of a prosperous and fair society expressed in that document signed on 6 February 1840.
“It is not the work of one generation. But it is work we do for the next generation, and the generation after that, our mokopuna. Now and in the days to come.”
It a little known history that Maori consistently sought a degree of self determination since the Treaty was signed. Following land confiscations and decisions of the Native Land Court, the Maori Councils Act 1900 conferred “a limited measure of self-government upon Her Majesty’s subjects of the Maori race,” providing machinery for local self-government of tribal runanga on matters of local concern and the social economy, as best suited to them. This included health and education reform. Maori committees had been formed in the 19th century to press for this kind of recognition of Article 2 of the Treaty.
The local runanga ran out of work as Maori migrated en masse to the cities, so we must find other ways for Maori to lift themselves up in the modern world. Treaty aspirations and settlements while noble and necessary, are not going to be enough in the face of the awesome powers arraigned against ordinary people everywhere, flowing out of the boardrooms of massive multinational tech corporations and their fellow travellers in transnational financial institutions and their tamed servants in governments in leading democracies and autocratic States.
The law has a role to play – but an effective democratic system is essential if we are to enjoy the promise of the Treaty.
So the CJ wants to enter into this debate? So much for the independence of the judiciary, entering into a highly divisive and political debate.
She talks of tikanga and the treaty as part of the law – when neither are defined and are currently subject to fashionable reinterpretation.
Real courage and leadership would be to articulate her view of what the principles of the Treaty are – or should be, or is that a job for politicians?