Schedule to Submission on Treaty Principles Bill

Schedule

1. The “principles” were introduced as a concept by the Treaty of Waitangi Act 1975. They were not defined. Commencing during the 1980s, governments started promoting legislation referring to the principles of the treaty and requiring varying degrees of adherence to the principles — e.g., not inconsistent with, take into account, have regard to, give effect to, et cetera.

2. In describing the exercise of the Waitangi Tribunal’s functions, in s 5(2), the 1975 Act requires the Tribunal to have regard to the two texts of the Treaty set out in Schedule 1 and provides that, “for the purposes of this Act,” the Tribunal has “exclusive authority to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between them.”

3. Section 6, dealing with the Tribunal’s jurisdiction, empowers it to inquire into claims that certain things were or are “inconsistent with the principles of the Treaty.” It is worth noting that the Act gave the Tribunal exclusive authority in relation to the meaning and effect of the Treaty, but not regarding the principles.

4. Parliament’s failure to define the “principles” left a vacuum to be filled by the Waitangi Tribunal and the courts. The Court of Appeal, in its decision in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, was the first court to undertake the task. Section 9 of the State-Owned Enterprises Act 1986 stated that “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.” The claimants alleged that proposed transfers of land from government departments to new state-owned enterprises would be inconsistent with the principles of the Treaty. The Court was required to interpret the provisions of the 1986 Act, especially s 9.

5. In the leading judgment, Cooke P introduced his consideration of what s 9 required with these crucial words. He said (at 663-664):

In brief the basic terms of the [Treaty] bargain were that the Queen was to govern and the Maoris were to be her subjects; in return their chieftainships and possessions were to be protected, but sales of land to the Crown could be negotiated. These aims partly conflicted. The Treaty has to be seen as an embryo rather than a fully developed and integrated set of ideas.

The Treaty signified a partnership between races, and it is in this concept that the answer to the present case had to be found.

6. Note that (1) the bargain was that the Queen was to govern and “the Maoris” were to be her subjects, and in return chieftainships and possessions were to be protected, yet (2) “The Treaty signified a partnership between races.” There is a disjunction between (1) and (2).

7. To govern is to direct and control the actions and affairs of (a country, city, people, etc.); to rule by the exercise of sovereign or delegated authority. Oxford English Dictionary, usage 2a, since c1325-. A subject is a person who is under the control of another or who owes obedience to another (Ibid., 1.1.a, from c1330-) and (possibly important in the context of the Queen’s protection of chieftainships and possessions) a person owing allegiance to and under the protection of a monarch or government; a person (other than the monarch) living under a monarchy (1.3), with of-phrase specifying the country or state; also in subject of the realm (1.3.a.ii).

8. By contrast, partnership is the fact or condition of being a partner (Ibid, 1.a.) and partner is a person with a joint share in or use of something; a person who is party to something. In early use: a sharer or partaker (in or of something) (ibid., 1, c1300-), and a person who takes part with another or others in doing something, esp. either of a pair of people engaged together in the same activity, occupation, etc.; an associate, companion, or accomplice (2a, from c1330).

9. There is also the business or legal sense of partnership: An association of two or more people as partners for the running of a business, with shared expenses, profit, and loss; the members of such an association collectively; a joint business (Ibid, 2, 1616-).

10. Earlier in his judgment (at 662), Cooke P had stated:

In this case we have also had the advantage of affidavits from an impressive range of persons of the Maori race. They include eloquent and moving passages. The force of the affidavits comes from the insight of the deponents into such matters as the significance of the Treaty for the Maori over the years since 1840; the bond between the Maori and his or her tribal land; the special bond created by the Treaty between the Maori people and the British monarch; grievances, general or particular, resulting from Pakeha attitudes and actions seen or sensed to conflict with the spirit of the Treaty.

11. Eloquent and moving passages in affidavits coupled, no doubt, with eloquent and moving advocacy from counsel for the claimants, David Baragwanath QC (now a retired judge of the Court of Appeal) and Sian Elias (now retired Chief Justice), and the sense of occasion (“This case is perhaps is important for the future of our country as any that has come before a New Zealand Court” — first sentence of judgment, at 650) may explain the logical inconsistency in a jump from a bargain for the recognition of the British Crown’s right to govern to the idea of a partnership between races.

12. It is important to remember that Cooke P said the Treaty signified a partnership between races. He did not say that the Treaty created a partnership between the Crown and Māori. That would mean that Queen Victoria, as titular ruler of Great Britain, had become a partner of the Māori race when clearly, she did not — she became the ruler of the Māori people, and they became her subjects.

13. The partnership seen to be signified was between “races” which could only be the British race and the Māori race. Yet, a partnership between races is another impossibility. Partnerships are formed between individuals. There would have been few members of the British race who would have had any idea of what was happening at Waitangi on 6 February 1840 and afterwards around the country.

14. Cooke P had a purpose when he said that the Treaty signified a partnership between races which can be seen by looking full sentence, “The Treaty signified a partnership between races, and it is in this concept that the answer to the present case had to be found.” My italics.

15. The State-Owned Enterprises Act created the possibility that a claim might be bought, the New Zealand Māori Council brought the case, and the Court had to find the answer. To find the answer, the Court of Appeal introduced the “concept” of a partnership between races.

16. As a partnership was an impossibility, the usage must necessarily have been metaphorical – applying a known legal concept, partnership, to a situation where partnership was impossible, but it was the means by which an answer might be found to the problem the Court had to solve, a problem Parliament had created by introducing the concept of “principles” and then by incorporating into the State-Owned Enterprises Act the requirement not to act inconsistently with them. Without, at any time, saying what those principles were.

17. The Court used principles of partnership law to find that each party to the Treaty had a duty to act towards each other reasonably and with the utmost good faith.

18. Thus, the seeds of the problem were sown in 1975 and the plant sprouted with the State-Owned Enterprises Act and the Court of Appeal’s 1987 decision. Unfortunately, the plant has since been nurtured by misrepresentation and cynical exploitation of the metaphorical language.

19. By no stretch of imagination can the 1987 decision be seen to hold that the Treaty created a partnership between Māori and the Crown. Literally, it can be taken to hold that the Treaty signified a partnership between the British race and the Māori race, but as that was impossible, the statements must be seen as a metaphorical description of a relationship which required each party to act towards each other reasonably and with the utmost good faith.

20. The idea that the Treaty created a partnership between Māori and the Crown is the source of many of the “principles” which developed. In a 2001 publication, He Tirohanga ō Kawa ki te Tiriti o Waitangi A Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the WaitangiTribunal, Te Puni Kokiri the Ministry of Māori Development cited the principle of partnership as “an overarching tenet, from which other key principles have been derived” (p 77).

21. A handy summary of the principles as Te Puni Kokiri then saw them is contained in the Contents, at page 5. They are: (1) the principle of partnership which gives rise to the duty to act reasonably, honourably, and in good faith, the principle of reciprocity, the principle of mutual benefit, and the duty to make informed decisions, (2) the principle of active protection and (3) the principle of redress.

22. Apart from the duty to act reasonably, honourably, and in good faith (which are concepts with longevity within the law of partnership and other relationships), these principles are essentially open-ended and may be taken as far as the user wishes to go. There is a telling passage at page 81 of He Tirohanga ō Kawa ki te Tiriti o Waitangi:

In the Muriwhenua Fishing Claim Report (1988), the Tribunal stated:

It was a basic object of the Treaty that two people would live in one country. That in our view is also a principle fundamental to our perception of the Treaty’s terms. The Treaty extinguished Mäori sovereignty and established that of the Crown. In so doing it substituted a charter, or a covenant in Mäori eyes, based upon their pledges to one another. It is this that lays the foundation for the concept of a partnership.

The Tribunal considers the following concepts integral to the principle of reciprocity: the equal status of the Treaty partners, the Crown’s obligation to actively protect Mäori Treaty rights, including the right of tribal self-regulation or self-management, the duty to provide redress for past breaches, and the duty to consult. The latter concepts are discussed later in this guide. For now it is helpful to consider an underlying premise on which the principle of reciprocity appears to be founded, namely the equal status of the Treaty partners.

23. Once again, we see the inherent contradiction. On the one hand, in the quotation from the Muriwhenua Fishing Claim Report, there is an acknowledgement that the Treaty “extinguished Māori sovereignty and established that of the Crown,” yet the Tribunal still advances the concept of a partnership, and “the equal status of the Treaty partners.”

24. More recently there has evolved a cynical exploitation of the situation, namely the claim that certain groups of Māori retain sovereignty, and that Parliament does not have sovereignty over them. This disavows the part of the bargain whereby Māori gave the Crown the right to govern which was the quid pro quo for the obligations the Crown undertook. This is a plain breach by those who make such claims of the obligation to act reasonably, honourably, and in good faith.

25. Those who advance the claim that Parliament is not sovereign are seeking to take what they have not earned, to break the very promise which entitles them to claim that the Crown has obligations to Māori. Sovereignty, or the right to govern, was the only value imparted by the chiefs who signed the Treaty. That was their side of the bargain — the only thing they gave. In exchange for giving the Crown the right to govern, the chiefs and their peoples were given the promises in articles 2 and 3. Now there are those who wish to renege on their side of the bargain whilst still holding the Crown to its side of the bargain and receiving compensation for the Crown’s breaches.

26. Most New Zealanders agree that taxpayers should pay compensation for breaches by the Crown of its article 2 promises. However, they do not agree with capitulation to extravagant claims. Nor do they accept that they should be subjected to overreach by persons and groups who wish to undermine our democratic system to gain power and the perquisites of power.

27. They are concerned about the political activism of the Waitangi Tribunal and some members of the judiciary, with support from sections of the political and bureaucratic establishments. They see our free and democratic society as a value which must be secured and maintained for present and future generations.

28. Legislating in 1975 for “principles” of the Treaty had good intentions. Accepting in 1987 that the Crown should act reasonably, honourably and in good faith in dealing with Treaty claims was also something which could be readily accepted. The problem is that the concept of a partnership between races, used as a metaphor to seek an answer to the problem of how s 9 of the State-Owned Enterprises Act should be interpreted, has been misused. It has been made up to be a partnership between the Crown and some of the subjects of the Crown and is now being subjected to further abuse by radicals who do not accept the canons of a free and democratic society, nor that New Zealand is committed to the rule of law and the sovereignty of Parliament.

29. The existence of the undefined “principles” of the Treaty provides a fake way of justifying unacceptable excesses. This has been developing over the last 30 years or so and is now a corrosion within our society which must be addressed.