Rebus Sic Stantibus and the Treaty of Waitangi

Victoria University of Wellington Law Review, Vol. 37, p. 505, 2006

Victoria University of Wellington Legal Research Paper No. 22/2012

42 Pages Posted: 7 Dec 2007 Last revised: 14 May 2012

See all articles by Mark J. Bennett

Mark J. Bennett

Victoria University of Wellington, Te Herenga Waka - Faculty of Law

Nicole Roughan

University of Auckland - Faculty of Law

Date Written: February 13, 2012

Abstract

The question of the continuing significance of the Treaty of Waitangi is one to which neither legal practice nor scholarship has offered a definitive answer. The question is often regarded as less legal than political; a question of intercultural justice to be pursued in the political realm. From within the law, however, the suggestion that the Treaty of Waitangi ought to be reassessed in light of modern circumstances was revived in 2005 when Jeremy Waldron, then University Professor at Columbia University, offered the international law doctrine of 'rebus sic stantibus' as a possible tool for analysis. This article responds to Professor Waldron's suggestion that the Treaty might be considered overridden by a fundamental change in political circumstances. It first argues that the structuring logic which Professor Waldron advocates is a misreading of the signpost that international law offers towards the role of treaties in problems of intercultural justice. This article then presents a comparative assessment of United States practice relating to treaties, before examining tikanga Maori to consider how its core values might offer guidance on the continuing relevance of the Treaty. Finally, this article looks to contributions from political philosophy relating to the political morality of Treaty-based intercultural justice

Keywords: rebus sic stantibus, tikanga, Waitangi, treaty, Indigenous, Waldron, justice, Rawls, Kymlicka, Maori, Pakeha, Tully

Suggested Citation

Bennett, Mark J. and Roughan, Nicole, Rebus Sic Stantibus and the Treaty of Waitangi (February 13, 2012). Victoria University of Wellington Law Review, Vol. 37, p. 505, 2006, Victoria University of Wellington Legal Research Paper No. 22/2012, Available at SSRN: https://ssrn.com/abstract=1065762

Mark J. Bennett

Victoria University of Wellington, Te Herenga Waka - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

Nicole Roughan (Contact Author)

University of Auckland - Faculty of Law ( email )

Private Bag 92019
Auckland Mail Centre
Auckland, 1142
New Zealand

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