Nu Tireni · Evidence Series · Part 23 · 1992
Berkett: why will a New Zealand court not retry the pedigree of Parliament?
The High Court accepted that assumptions behind the 1840 proclamations could be questioned historically, but held that a present court cannot invalidate current statutes by reopening the pedigree of Parliament.
Recognition · Parliamentary supremacy
Berkett v Tauranga District Court is perhaps the clearest modern articulation of how the legal system closes the founding question.
The sovereignty argument was that the Crown had never lawfully acquired authority over the relevant Māori territory, so New Zealand criminal law did not apply. Fisher J acknowledged the questionable nature of some assumptions used to justify the original proclamations, but emphasised the general recognition those proclamations had received since 1840.
This is the bridge in its most explicit form. Historical weakness in the founding claim is not treated as a route by which an ordinary court can invalidate the present legislature.
That does not mean historical questions are meaningless. They remain capable of inquiry by historians, the Waitangi Tribunal, political institutions and potentially constitutional reform processes. It means the ordinary courts do not use those questions as a jurisdictional switch that turns New Zealand statutes on or off.
Recognition and institutional continuity replace proof of original cession as the operative basis of present judicial authority.
Historical inquiry
The assumptions behind the proclamations can be scrutinised and criticised.
Current legal validity
The courts do not invalidate Parliament by tracing an alleged defect back to the Crown's acquisition of sovereignty.
Primary, judicial and official sources
Brooker v Police [2017] NZHC 2658 — quoting Berkett ↗
Victoria University of Wellington Law Review — discussion of Berkett and the 1840 proclamations ↗