KEY POINTS:
The morning seemed apt for a chat with a constitutional scholar. At that very moment, not far away from Matthew Palmer's Wellington home, John Key was meeting Maori Party leaders to discuss some sort of governing arrangement.
The Maori Party have made it clear during the election campaign they are seeking some sort of relationship that can express the Treaty of Waitangi.
Right now Key does not need to do a deal, but he knows that if he wants to be in power after the next election he probably will need one. And he will probably never be in a better dealing position than now.
This is how we do constitutional development in this country. Palmer calls it "practical, evolving, political". Others might say accidental, subconscious, haphazard, catch-as-catch-can.
It is a culture Palmer celebrates in a book published today entitled The Treaty of Waitangi in New Zealand's Law and Constitution. If the title sounds dull that is a pity, because he hopes it will prompt a popular discussion of an idea for which he believes the time has come.
He proposes putting the Treaty formally into law at last, and establishing a specialist Treaty of Waitangi Court to hold Parliament, the Government, and Maori for that matter, to account for the maintenance of an agreed relationship.
He knows better than most that New Zealanders do not like the idea of unelected judges having a charter to strike down laws made by democratic representatives. He was a law student in 1985 when his father, Sir Geoffrey Palmer, launched a Bill of Rights for public discussion.
That is not how we do constitutional development. Our instincts are British, not American, when presented with words written in stone. The Bill of Rights had to be watered down from supreme law to an ordinary statute that has the power only to shame conflicting legislation.
Matthew Palmer proposes not much more power for his Treaty court. When it found acts of Parliament to be in breach of the Treaty it would offer an amendment which Parliament would be obliged to consider but not necessarily adopt.
None of this, he insists, should happen unless it follows a well-informed public discussion and is approved at a referendum. He has a proposal for the method of public discussion too. It should be led, he suggests by a "citizens' assembly" consisting of two representatives of each electorate randomly selected who would be paid to study the proposal, hold public meetings.
He saw this working in Canada when Ontario was considering a change to its electoral system. Maori would be included in the citizens' assembly but would also be able to set up a procedure for reaching a Maori view of the issues. "If there were significant opposition from Maori it would be illegitimate to proceed," he writes.
Like his father, he prefers to combine academic interests with practical work in the public service. A former professor and dean of the Victoria University law school, Matthew Palmer is now a Deputy Solicitor General.
He stresses he has no responsibility for Treaty issues in his day job and that the book in no way reflects the views of the Crown Law Office.
Nor will be comment directly on the incoming Government's current discussions with the Maori Party. The observations at the beginning of this article are mine.
The book was written on a Law Foundation grant that took him to Cambridge University and back to Yale where he had done his doctorate.
Much of the finished tome is devoted to the attitudes of the major institutions of public power in New Zealand: Parliament, the higher courts, the Waitangi Tribunal in Treaty matters, and Cabinets over the years.
He was given access to Cabinet papers of all governments including the most recent.
Palmer was surprised to discover the Treaty was barely mentioned in Cabinet discussions from 1949, when minutes were formalised, until 1971, despite the beginnings of Maori radicalism in the 1960s.
The first recorded mention of the Treaty was in March 1971 when the Holyoake Cabinet asked for a report on whether the Treaty should be given the force of law. A paper was brought back by Justice Minister Dan Riddiford and Maori Affairs Minister Duncan MacIntyre pointing out inconsistencies between Articles II and III and between the English and Maori versions.
The Kirk-Rowling Government came to power in 1972 with a manifesto commitment to "examine a practical means of legally acknowledging the principles set out in the Treaty of Waitangi."
A caucus committee chaired by the Maori Affairs Minister Matiu Rata eventually led to the creation of the Waitangi Tribunal but almost no further reference to the Treaty is recorded in the work of that Government or the next.
Palmer reports that even the Muldoon Cabinet's papers on Dame Whina Cooper's 1975 land march and petition make no reference to the Treaty.
Things started to change with the Tribunal's Te Atiawa report in March 1984 though a response recommended by officials was not accepted until the change of Government in July.
The Lange Government not only met its promise to give the Tribunal power to hear historic claims but Justice Minister Palmer's proposed Bill of Rights would have included the Treaty in "supreme law".
Maori submissions opposed the idea at that time. At least one Maori academic, Mason Durie, thinks the response would be different today.
Palmer's book was completed before the Maori Party's appeal for constitutional entrenchment of the Maori seats became an issue in the recent election campaign, and whole-heartedly supports it.
The seats are cited as another example of the way New Zealand's constitution evolves. The seats were set up in the 19th Century as a temporary expedient, with some provisions for West Coast coal miners.
Palmer writes, "Maori have managed to convert a pragmatic Pakeha initiative, the Maori seats, into a symbolic representation of their own identity and political relationship with the state." They are now, he suggests, "the most significant manifestation of the Treaty of Waitangi in New Zealand's constitution".
Whether the Maori seats are now to be entrenched will depend on how much the National Party wants a relationship with Maori, and how much Maori want to establish their independence of Labour.
Or to put it another way, how much Maori want to have a relationship with both government options.
A continuing healthy relationship, says Palmer, is the essence of the modern meaning of the Treaty as it has been agreed between the institutions that exercise public power in New Zealand.
* The Treaty of Waitangi in New Zealand's Law and Constitution is published by Victoria University Press.
