A constitution in question: new book argues case for reform

In Sovereignty: The Case for Constitutional Transformation, Waipapa Taumata Rau, University of Auckland Professor Claire Charters argues New Zealand's constitution fails to protect Māori rights and calls for fundamental change.

Charters (Ngāti Whakaue, Tainui, Ngāti Tūwharetoa, Ngāti Tahu, Ngāti Whaoa, Ngāti Rehia), an expert in Indigenous law at Auckland Law School, challenges the foundations of New Zealand's constitutional system and examines what the country could learn from constitutional reform overseas.

Unlike most countries, New Zealand has no single written constitutional document. Instead, its constitution follows the British model, comprising legislation, court decisions, historical documents and unwritten conventions.

Charters questions why New Zealand has been so reluctant to examine its constitutional arrangements and argues that a fundamental weakness of the system is that the courts cannot overturn legislation passed by Parliament, even if it breaches human rights, Te Tiriti o Waitangi or Indigenous peoples' rights under international law.

"Our reluctance to question our constitution may reflect an attachment to the status quo, a desire to preserve existing privileges, or a lack of public awareness and debate."

Although Sovereignty focuses primarily on Māori rights, Charters argues that the constitutional weaknesses she identifies have implications for everyone.

"New Zealand's constitution doesn't just fail Māori," writes Charters, "it fails us all."

Charters highlights the case of climate activist Mike Smith (Ngāpuhi, Ngāti Kahu).

In 2024, the Supreme Court ruled that his legal action against major greenhouse gas emitters could proceed, but the Government subsequently announced plans to legislate to prevent climate claims of this kind, illustrating Charters' concern that Parliament can intervene in court proceedings and restrict people's ability to pursue legal remedies.

She also points to amendments to the Oranga Tamariki Act, which removed a section requiring Oranga Tamariki, the Ministry for Children, to give effect to the principles of te Tiriti o Waitangi and to work in partnership with iwi and hapū. Parliament proceeded with the repeal despite a Waitangi Tribunal recommendation to abandon the changes.

Drawing on years of international research, she challenges the perception that New Zealand compares favourably with other countries in protecting Indigenous peoples' rights.

She looks particularly at Mexico, where she spent time while writing Sovereignty, and whose constitutional reforms she considers the most progressive in the world in recognising Indigenous peoples' self-determination and rights.

Charters also highlights research by the Harvard University Project on Indigenous Governance and Development, which found that Indigenous peoples achieve better economic, social and environmental outcomes when exercising self-determination.

In the book's final chapter, she explores options for constitutional transformation that would better realise te Tiriti o Waitangi, strengthen human rights protections and make formal space for tikanga Māori.

"I can attest to the fact that constitutional transformation is possible, should not scare us, and can contribute to a more just world."