Stories Of Relegation The Treaty Of Waitangi And The Judicial Role In Aotearoa’s Administrative Law

Abstract

Projects of constitutionalism, nation-building, and law-making are woven together by exercises of storytelling. Underneath administrative law’s doctrinal facia, stories guide its development and animates its application. Administrative law, therefore, cannot be properly understood without reference to the stories it receives from wider constitutional, political, and social landscapes. With an understanding of those stories, we can recognise the trajectory of the law to its current state and how the law might be carried forward, in new directions. This paper examines Aotearoa’s administrative law doctrine as it relates to the Treaty of Waitangi and determinations of the judicial role. It situates doctrine in wider narratives and argues the core of Aotearoa’s administrative law is structured around dominant colonial stories of inferiority and superiority that relegated the Treaty of Waitangi to a peripheral role. While colonising stories were once recounted overtly, their effects persist by way of minimalism, inertia, and adherence to constitutional principles brought to Aotearoa through colonisation. Even as the Treaty’s constitutional significance has been, and continues to be, recognised, it is not afforded a role that displaces the colonial orthodoxy or shapes the judicial role. Despite the colonial orthodoxy, this paper identifies pockets of judicial departure from those stories. In scattered spaces, the Treaty has found influence, grounding an impulse to expand the judicial role and reformulating the boundaries of substantive legitimate expectation and relevancy. Though eschewing the colonising stories that relegate the Treaty, judicial treatment has not yet replaced them with a cogent alternative narrative. The departures, consequently, remain ad hoc and comparatively weak. This paper ultimately closes with a call for judges to consciously adopt new narratives–ones that are already told–reflecting a constitutionalism where the Treaty is honoured.