The myth of cession: Public law textbooks and the Treaty of Waitangi

Abstract

The Waitangi Tribunal has recently found that the te Tiriti o Waitangi, as signed and understood in 1840, was not a cession of sovereignty, thus confirming the views of a generation of historians. Although some legal scholars have agreed with this view, mainstream public law scholarship – and Pākehā constitutional discourse more broadly – have not yet caught up. Three textbooks, Joseph’s Constitutional and Administrative Law, Palmer and Palmer’s Bridled Power and Morris’ Law Alive each portray the treaty as a cession of sovereignty. They do this by overlooking Māori law, history and motivations for signing, and by portraying the meaning of the English text as “the” treaty. This is particularly problematic because of the authoritative and normative role that textbooks have in shaping discourses, both for students and for the general public. The myth of cession obscures the violent reality of how the Crown actually acquired its power and prevents meaningful constitutional dialogue.