Treaty of Waitangi "principles"

How a legal fiction was created

The coalition government’s intention to introduce a Treaty principles Bill has engendered much discussion. Much of it has been misinformed. Even some who agree that the principles need to be defined seem unaware of the exact history of the introduction of principles of the treaty into the legal lexicon. In short, the idea was introduced in 1975, not 1986.

In this and subsequent articles, I set the record straight. This first contribution records some legislative and related history.

The first public reference to Treaty of Waitangi “principles” appears to have been in Labour’s 1972 election policy. The Māori affairs policy for the election (held on 25 November 1972) included:

To mark the signing of the Treaty of Waitangi, a Labour Government will declare 6 February "New Zealand Day” and provide for it to be a holiday.

A Labour Government will also examine a practical means of legally acknowledging the principles set out in the Treaty or Waitangi.

[Contained in a policy advertisement — see item 7 in the appendix to GJ Booth’s 1974 master’s thesis.]

The phrase “principles of the Treaty of Waitangi” was first used legislatively in the Treaty of Waitangi Act 1975¹. The Bill was introduced and shepherded through the House by Matiu Rata, Minister of Maori Affairs. The Act was enacted 10 October 1975, shortly before the 1975 election when Labour was defeated by National.

The long title to the 1975 Act is:

An Act to provide for the observance, and confirmation, of the principles of the Treaty of Waitangi by establishing a Tribunal to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty.

The preamble states:

Whereas on 6 February 1840 a Treaty was entered into at Waitangi between Her late Majesty Queen Victoria and the Maori people of New Zealand:

And whereas the text of the Treaty in the English language differs from the text of the Treaty in the Maori language:

And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles.

In s 5, describing the Tribunal’s functions, the Tribunal was required to have regard to the English text and to the Māori text of the Treaty, both of which were scheduled to the Act², and was given exclusive authority to determine the meaning and effect of the Treaty “as embodied in the two texts and to decide issues raised by the differences between them,” but the exclusive authority was only “for the purposes of this Act.”³

Section 6 gave the Tribunal jurisdiction to consider claims that government actions and policies were “inconsistent with the principles of the Treaty.”⁴ Likewise, s 8 permitted the Tribunal, if asked to do so by the House of Representatives or a Minister, to examine proposed legislation and report “whether, in its opinion, the provisions of [a Bill before the House, a proposed regulation or an order in Council] are contrary to the principles of the Treaty.”

Parliament thus created the idea that there are “principles of the Treaty.” It didn’t say what they are.

By giving the Tribunal jurisdiction to determine the meaning and effect of the Treaty and charging it with the duty to consider whether Crown action was or would be inconsistent with, or contrary to the principles, it was left to the Tribunal to say what are the principles for the purpose of the matter before it.

The jurisdiction conferred on the Tribunal enabled it, indeed required it to say what the principles are, for the purposes of the claim it was considering.

The next significant development was the inclusion in the 1986 State Owned Enterprises legislation of s 9 stating that nothing in the Act would permit the Crown to act inconsistently with the principles of the Treaty. Geoffrey Palmer, Minister of Justice and Deputy Prime Minister was in charge of the Bill and sponsored this inclusion.

A case (the 1987 “lands” case⁵) was brought by the NZ Māori Council and its chairman the late Graham (later Sir Graham) Latimer to prevent the Crown transferring assets to the new SOEs, claiming — in reliance on s 9 — that the proposed actions were inconsistent with the principles of the Treaty. The Court of Appeal was therefore required to decide whether the intended Crown actions were inconsistent with the principles of the Treaty. This made it necessary to determine what those principles were for the purposes of the SOE Act 1986.

In a 1993 case⁶ Cooke P for the Court of Appeal, summarised what the “lands” case decided:

It was held unanimously by a Court of five Judges, each delivering a separate judgment, that the Treaty created an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other. The words of the reasons for the judgment of the five Judges differed only slightly; the foregoing is a summary of their collective tenor.

The propositions that a race could be a party to an agreement, and that descendants of Māori who were living on 6 February 1840 could succeed to whatever rights were conferred upon their ancestors by the Treaty (be they legal or moral), are questionable. Putting that to one side, acting in good faith, reasonably and honourably readily comports with what most would consider to be proper conduct. The problem is that the words “akin to a partnership,” and other perhaps wider language in the “lands” case itself, have been seized on to justify what many regard as extravagant claims about the content of the “principles.”

In the “lands” case Cooke P noted that s 9 required the Court to interpret the phrase “the principles of the Treaty of Waitangi when necessary,” and that in doing so the Court “should give much weight to the opinions of the Waitangi Tribunal expressed in reports under the Treaty of Waitangi act 1975.” He emphasised that the opinions of the Tribunal are not binding on courts in proceedings concerned with Acts other than the 1975 Act.⁷

Cooke P identified Tribunal reports from which “particular help” was obtainable. One of these was the Kaituna River report (WAI 4, 1984). He did not do other than name the reports, but no doubt, the Court may have found these Kaituna River report statements helpful:

6.1 The enactment of the Treaty of Waitangi Act 1975 gave the Treaty a new status. Before the passing of that Act it had had no legal effect. After the passing of that Act the situation was quite different.

The Tribunal then referred to s 6, and went on:

6.2 … The statute came into force on October 10, 1975. From that date onwards any Act of Parliament that comes into force and prejudicially affects a Maori confers upon that Maori the right to make a claim if it can be shown that the statute in question is in conflict with the principles embodied in the Treaty. So also with any Regulation or any Order in Council.

Earlier on, and probably more germane to the Court of Appeal’s deliberations, certainly to this article:

5.11 …. Our statutory authority is to make a finding as to whether any action of the Crown, or any statute or Order in Council is inconsistent with the principles of the Treaty. This wide power enables us to look beyond strict legalities so that we can in a proper case, identify where the spirit of the Treaty is not being given due recognition.

The Tribunal took this thinking a stage further in a 1997 report where it said:

Although the Act refers to the principles of the Treaty for assessing State action, not the Treaty’s terms, this does not mean that the terms can be negated or reduced. As Justice Somers held in the Court of Appeal, ‘a breach of a Treaty provision . . . must be a breach of the principles of the Treaty’⁸. As we see it, the ‘principles’ enlarge the terms, enabling the Treaty to be applied in situations that were not foreseen or discussed at the time.

Conversely, a focus on the terms alone would negate the Treaty’s spirit and lead to a narrow and technical approach. In illustration, to satisfy the terms of article 2 one might ask only whether the land was knowingly sold, when the principle from the Treaty as a whole is whether, in all the circumstances, any sale was fair. Similarly, based upon the Treaty’s terms, tribal rights may depend on whether article 2 is subservient to article 3, when the principle is that the reasonable expectations of two different peoples, as parties to the Treaty, must equally be respected. The Treaty cannot be read as a contract to build a house or buy a car. It was a political agreement to forge a working relationship between two peoples and it must be seen in light of the parties’ objectives. The principles of the Treaty are ventilated by both the document itself and the surrounding experience.

The next development was a change to the jurisdiction of the Waitangi Tribunal. Section 6(1) of the 1975 Act as enacted in 1975 provided:

Where any Maori claims that he or any group of Maoris of which he is a member is or is likely to be prejudicially affected

(a) By any Act, regulations, or Order in Council, for the time being in force; or

(b) By any policy or practice adopted by or on behalf of the Crown and for the time being in force or by any policy or practice proposed to be adopted by or on behalf of the Crown; or

(c) By any act which, after the commencement of this Act, is done or omitted, or is proposed to be done or omitted, by or on behalf of the Crown,—

and that the Act, regulations, or Order in Council, or the policy, practice, or act is inconsistent with the principles of the Treaty, he may submit that claim to the Tribunal under this section.

Section 6 was amended in 1985. It now reads:

Where any Maori claims that he or she, or any group of Maoris of which he or she is a member, is or is likely to be prejudicially affected—

(a) by any ordinance of the General Legislative Council of New Zealand, or any ordinance of the Provincial Legislative Council of New Munster, or any provincial ordinance, or any Act (whether or not still in force), passed at any time on or after 6 February 1840; or

(b) by any regulations, order, proclamation, notice, or other statutory instrument made, issued, or given at any time on or after 6 February 1840 under any ordinance or Act referred to in paragraph (a); or

(c) by any policy or practice (whether or not still in force) adopted by or on behalf of the Crown, or by any policy or practice proposed to be adopted by or on behalf of the Crown; or

(d) by any act done or omitted at any time on or after 6 February 1840, or proposed to be done or omitted, by or on behalf of the Crown,—

and that the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission, was or is inconsistent with the principles of the Treaty, he or she may submit that claim to the Tribunal under this section.

I have emphasized words in the 1975 Act as enacted. At that time, the Tribunal’s jurisdiction was limited to what the Crown was doing at present or proposed to do. The legislation, as it has been since 1985, permits the Tribunal to look at claims about anything alleged to have been done at any time on or after 6 February 1840.

The ability to go back to 6 February 1840 coupled with the statutory creation of principles to be derived from two texts, which have differences, has created a potent weapon for creative claimants and their lawyers.

To summarise:

• That the Treaty has principles is a Parliamentary creation

• The creation occurred in 1975. not 1986 as some assert

• In 1986, the government started inserting Treaty clauses in legislation which meant that the courts were required to say what the principles required when a case alleging inconsistency with or non-compliance with the principles came before the courts

• Legislation has opened the way for creative arguments about what the principles are.

I take the view that the Treaty does not have principles. The justification for saying it does is that there are two texts which are different. I do not agree. There is only one text, the one that was signed. I shall discuss these and other matters in later articles.

1. The Act as enacted in 1975 can be found here.

2. The scheduled text in Māori “contains in Article the Second glaring errors and omissions,” as pointed out by the Waitangi Tribunal in its WAI 6 Motunui-Waitara Report of March 1983, at p47. No doubt this is why the Schedule 1 text in Māori was replaced, on 6 January 1986, by s 4 of the Treaty of Waitangi Amendment Act 1985 (1985 No 148).

3. Section 5(2) read and still reads:

(2) In exercising any of its functions under this section the Tribunal shall have regard to the two texts of the Treaty set out in the First Schedule t6 this Act and, for the purposes of this Act, shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the two texts and to decide issues raised by the differences between them.

4. Section 6 as enacted in 1975 read:

 Jurisdiction of Tribunal to consider claims-

(1) Where any Maori claims that he or any group of Maoris of which he is a member is or is likely to be prejudicially affected-

 (a) By any Act, regulations, or Order in Council, for the time being in force; or

(b) By any policy or practice adopted by or on behalf of the Crown and for the time being in force or by any policy or practice proposed to be adopted by or on behalf of the Crown; or

(c) By any act which, after the commencement of this Act, is done or omitted, or is proposed to be done or omitted, by or on behalf of the Crown,--

and that the Act, regulations, or Order in Council, or the policy, practice, or act is inconsistent with the principles of the Treaty, he may submit that claim to the Tribunal under this section.

(2) Subject to section 7 of this Act, the Tribunal shall inquire into every claim submitted to it under this section.

(3) If the Tribunal finds that any claim submitteq, to it under this section is well-founded it may, if it thinks fit having regard to all the circumstances of the case, recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future.

(4) A recommendation under subsection (3) of this section may be in general terms or may indicate in specific terms the action which, in the opinion of the Tribunal, the Crown should take.

(5) The Tribunal shall cause a sealed copy of its findings and recommendation (if any) with regard to any claim to be served on--

 (a) The claimant:

(b) The Minister of Maori Affairs and such other Ministers of the Crown as in the opinion of the Tribunal have an interest in the claim:

 (c) Such other persons as the Tribunal thinks fit.

(6) Nothing in this section shall confer any jurisdiction on the Tribunal in respect of—

(a) Anything done or omitted before the commencement of this Act; or

(b) Any Bill that has been introduced into the House of Representatives unless the Bill has been referred to the Tribunal pursuant to section 8 of this Act.

5. New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641.

6. Te Runanga o Wharekauri Rekohu Inc v Attorney-General (Sealords case) [1993] 2 NZLR 301, 304, per Cooke P for the Court of Appeal.

7. At p 661.

8. New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, 693.