This Note presents the problems the Maori, New Zealand's indigenous people, have encountered in seeking enforcement of the Treaty of Waitangi that they signed with Great Britain in 1840. It argues that the Treaty of Waitangi is a valid legal document that should be fully integrated into New Zealand domestic law and afforded protection under international law. The author argues that the Maori met the international law requirements of statehood in 1840 and, therefore, were capable of entering into a treaty with Great Britain. Even if there was no Maori state capable of entering into a treaty, there is analogous international authority which suggests that a non-state can be a party to a treaty. Further, because the document allegedly involved the cessation of land or sovereignty or both, an agreement less formal than a treaty would not have sufficed. The result is that New Zealand may incur state responsibility for its failure to give full effect to the terms of the Treaty.
This Note explores both the English and Maori texts of the Treaty and the doctrine of aboriginal rights to determine what rights to sovereignty the Maori retained. In doing so, the Note addresses the domestic paths taken by the United States and Canada concerning similar treaty interpretation and sovereignty issues that may be helpful to the Maori and New Zealand in fashioning an appropriate solution to settling the long standing Treaty dispute. This Note suggests international remedies that the parties may employ as well as other remedies that the Maori may explore in the face of continued New Zealand resistance to their Treaty claims.
Jennifer S. McGinty,
New Zealand's Forgotten Promises: The Treaty of Waitangi,
25 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol25/iss4/4