The Principles of the Treaty of Waitangi Deletion Bill
The rationale for the Bill is simple. According to Mr Peters, the principles are at the core of all disquiet surrounding the Treaty of Waitangi (the Treaty).
The explanatory note to the Bill sets out four reasons for why this is so:
- The principles were inserted by Parliament, not at the request of Māori.
- Parliament has never actually defined the principles, meaning the task has fallen to judges, who have taken an increasingly activist, liberal and broad licence in providing a form of definition. However, the principles still remain largely undefined and ambiguous.
- The principles are a source of ongoing litigation regarding their relevance and meaning.
- The principles have become a diversion from the true pathway to success for both Māori and non-Māori.
The intention behind the Bill is to see the Treaty take its rightful place as an historical document which will bind New Zealand, not divide it.
Time to consider the Bill
The Bill has been drawn in the Member’s Bills ballot, but is yet to have its first reading in the House, so there is ample time to consider if there is a problem, and if there is, whether this Bill is the solution.
Whether the Bill is right or wrong, good or bad, is not really the point. Either way, it does give New Zealanders a framework in which to consider the issues in an analytical rather than emotive way.
As one of New Zealand’s leading public law practices, we make no apology for our contribution to the debate, being an analysis from a legal perspective. Perhaps unusually for lawyers, we do not claim to have the answers, but we do think we can help frame the questions.
This Counsel aims to provide the reader with an analysis from a legal perspective when considering these issues.
Is there a problem that needs fixing?
Mr Peters has stated there is no consensus as to what the principles of the Treaty mean or how they ought to be implemented. This, he has said, is a problem. Is he right on either or both counts?
It has become good political sport to try to get ministers to identify and define the principles, and it is true that no definitive answer is usually given. But does this mean the principles are largely undefined and ambiguous?
As Dr Wayne Mapp has observed in the House,1 Government relies on the views of the Court of Appeal.
In 1987, one of our foremost jurists, Richardson J, asserted in New Zealand Maori Council v Attorney General2 that it could not be said that there was broad general agreement as to what the principles of the Treaty were. Have we moved on from then?
According to the Te Puni Kōkiri website there are five sources from which the Treaty principles can be derived. These are:
- the literal terms in the texts of the Treaty
- cultural meanings of words
- influences and events which gave rise to the Treaty
- contemporary explanations
- legal interpretations.
In particular, in 2005, there are a number of legal interpretations that provide guidance as to what are the Treaty principles.
There is also a series of Waitangi Tribunal reports which identify a number of principles that arise from the Treaty’s literal words (the role of the Tribunal is described below and the texts of the Treaty are set out on the attached flyer).
The Waitangi Tribunal: what the principles are
- The Treaty established a partnership, and imposes on both partners the duty to act reasonably, honestly and in the utmost good faith.3
- The needs of both Māori and the wider community must be met, which will require compromise on both sides.4
- The principle of mutual benefit or mutual advantage is a cornerstone of the Treaty partnership.5
- The granting of the right of pre-emption to the Crown implies a reciprocal duty for the Crown to ensure that the tangata whenua retain sufficient endowment for their foreseen needs.6
- The exchange of the right to make laws for the obligation to protect Māori interests “to accord the Māori interest an appropriate priority”.7
- Tino rangatiratanga includes management of resources and other taonga according to Māori cultural preferences.8
- Tino rangatiratanga includes the tribal right of self-regulation.9
- The Crown has an obligation to actively protect Māori Treaty rights.10
- Consultation should occur early in the process.11
- The principle of choice/options: Māori, Pākehā and bicultural options.12
- The Treaty provided an option for Māori to develop along customary lines and from a traditional base, or to assimilate into a new way. Inferentially it also offered a third alternative: “to walk in two worlds”.13
- The Crown cannot evade its obligations under the Treaty by conferring authority on some other body.14
- The Treaty is an agreement that can be adapted to meet new circumstances – the principle of development.15
In summary, the main principles that are stressed are those of partnership, good faith, active protection, the need for compromise and the duty to consult.
The Tribunal has taken the position that the provisions of the Treaty itself are not to be supplanted by the principles which emerge from it, but that they are, however, inter-related.
Most significantly, throughout, the Tribunal has assumed that the Treaty is a living document that should be interpreted in a contemporary context. Successive Tribunals have not confined themselves to analysis of the written text of the Treaty. They have attempted to read the Treaty in the light of present changes and challenges. In particular, there is an emphasis on the spirit of the Treaty and its status as a developing social contract. Because of this, the Tribunal’s view is that new principles are always emerging and existing ones will need to be modified.
A comparison of the principles propounded by the Tribunal with those formulated by the Court of Appeal is interesting. As the Tribunal developed the principles set out, there were simultaneous legal interpretations being developed by the Courts.
Aside from the Treaty of Waitangi Tribunal Act 1975, the first references to the principles of the Treaty occurred in late 1986, with the Environment Act and the State-Owned Enterprises Act. In neither case was the term “principles of the Treaty” defined. This meant that the Courts had to determine what it meant when the Crown had to ensure that it did not “act in a manner that is inconsistent with the principles of the Treaty of Waitangi” at much the same time as when the Tribunal was considering the principles.
The Courts: What the principles are
- The Treaty established a partnership, and imposes on both partners the duty to act reasonably, honestly and in the utmost good faith.16
- The spirit of partnership is “at the heart of the principles of the Treaty of Waitangi”.17
- Partnership does not mean that every asset or resource in which Māori have some justifiable claim to share must be divided equally.18
- The freedom of the Crown to govern and make laws.19
- The acquisition of sovereignty in exchange for the protection of rangatiratanga.20
- “Foremost amongst [the] principles are the obligations which the Crown undertook of protecting and preserving Māori property, including the Māori language as part of taonga, in return for being recognised as the legitimate government of the whole nation by Māori”.21
- Māori to retain rangatiratanga over their resources and taonga and to have all the rights and privileges of citizenship.22
- The Crown’s duty of active protection “of Māori people in the use of their lands and waters to the fullest extent practicable”.23
- Active protection of Māori interests, which is not restricted to consultation.24
- The Crown has a positive obligation “within constraints of the reasonable, to protect the position of Māori under the Treaty”.25
- The Crown has a duty to consult, although it is noted that “exactly who should be consulted before any particular legislative or administrative step [is taken] which might affect some Māoris, … would be difficult or impossible to lay down”.26
- Crown duty to remedy past breaches.27
In summary, the Courts have talked of the Treaty partnership, the Crown’s fiduciary duty and of the need to adhere to the principles of the Treaty, rather than any literal reading of the text.
The Courts have, therefore, developed a similar approach to the Tribunal; the principles are seen as important and developing.
It may be that the Courts and the Tribunal have interpreted the principles in an increasingly activist, liberal and broad way. However, both are comfortable with the concept of the “principles” of the Treaty and have taken similar views on what the fundamental principles are and, more importantly, how those principles should be developed.
No, there is no consensus as to what the principles of the Treaty mean; but this is because the Treaty is seen as developing, so the “principles” of it are not constant and cannot be exhaustively identified.
Can it, therefore, be said that the principles of the Treaty are undefined and ambiguous? If so, is there a problem that needs fixing? The principles are not, by their nature, capable of fixed definition and certainty; should they therefore be denied the status of giving rise to enforceable rights?
Does the Bill achieve its seemingly simple fix?
Assuming there is a problem or at least a debate worth having, one question is whether or not removing the references to the principles of the Treaty is a solution.
Five factors seem to require consideration before this question can be answered:
- The continued existence of the Tribunal
- The existence of statutory law interpretations that co-exist alongside Tribunal recommendations
- The continued existence of obligations in legislation to consult with Māori
- The continued extistance of obligations in legislation to make special provision to improve the capacity of Māori
- The goal of having the Treaty apply to all New Zealanders either as between each other in their daily dealings, or as a more classic model, in their group (or individual?) relationships with the Crown.
The Waitangi Tribunal
The Tribunal was established in 1975 by the Treaty of Waitangi Act 1975 (TOWA). It is a permanent Commission of Inquiry whose role includes inquiring into and making recommendations upon any claim brought by Māori in relation to actions or omissions of the Crown, which breached the promises made in the Treaty.
According to the preamble of the TOWA, the Tribunal is to determine whether certain matters are inconsistent with the principles of the Treaty. The Tribunal’s functions therefore include deciding issues raised by the differences between the texts of the Treaty (set out in the attached flyer).
The existence of this Tribunal and the paramount importance that the TOWA places on the principles of the Treaty is not addressed by the Bill.
The references to the Treaty principles in the TOWA would be removed by the Bill in the same manner as they would be removed from every other Act. However, the TOWA is not just any other Act; the references to the principles may not be able to be removed this simply.
The concept of the principles of the Treaty is intricately related to the purpose of the TOWA and the rationale for establishing the Tribunal. Reconciling the texts of the Treaty may be an impossible task without the concept of the principles of the Treaty.
The fundamental role of the Tribunal under the TOWA may therefore not be able to be carried out without the Treaty principles being relevant. The impact on the Tribunal is an issue that has to be addressed if the Bill is to proceed.
Existing interpretations and recommendations
The Bill purports to remove the references to the principles of the Treaty from legislation. It is significant that the Bill will not be able to remove the existing interpretations. The considerable body of Tribunal reports and Court decisions dealing with the principles of the Treaty will not disappear.
As discussed below, the principles are likely to be relevant so long as the Treaty has a place in New Zealand, and Māori are consulted as Māori on matters of public relevance. The increasingly activist, liberal and broad legal interpretations may not therefore diminish in importance.
Requirements to consult Māori
The numerous statutory requirements to consult Māori would not be removed under the Bill. This creates uncertainty about whether Mr Peters will effectively achieve his goal; will the “disquiet” about the Treaty disappear?
For example, section 82(2) of the Local Government Act 2002 requires local authorities to have in place processes for consulting with Māori when the Act requires that consultation about any decision or other matter be undertaken. This consultation may have to be carried out in accordance with the special consultative procedure, which requires that the relevant consulting bodies ensure that Māori are able to be heard in a manner and format they are comfortable with.
It does not seem far fetched to presume that in complying with this requirement, consulting bodies may be obliged to consider the principles of the Treaty; or Māori may not feel comfortable being consulted in a manner that does not recognise (or even denies) the relevance of the principles of the Treaty.
It seems probable that the principles of the Treaty, in particular those of partnership and good faith, have the potential to impact on whether Māori are being heard in a manner and format they are comfortable with. The Tribunal, for example, will often sit on a marae and hear submissions in accordance with traditional Māori custom. Māori might well request the same from bodies required by statute to consult with them. So far the issue has not been tested in a case where a consulting body has refused to meet on a marae, so whether the refusal is an actionable breach of a right is not known.
Māori also have consultation rights in other capacities, e.g. as affected residents, along with other affected residents. So, a specific requirement to consult Māori might easily be construed as requiring particular attention to Māori dimensions.
Requirements to develop Māori capacity to participate
Some very important legislation such as the Local Government Act 2002 imposes positive obligations to develop processes to give Māori opportunities to contribute to decision making, and consider ways to foster development of Māori capacity to contribute to decision making. More recent legislation states that this does not limit the ability to take similar action for any other “population group”.
Those provisions are not removed by Mr Peters’ Bill. Perhaps they are Parliamentary expressions of the principles of the Treaty, even though not explicitly stated to be?
The continued existence of statutory requirements to consult, involve and foster involvement of Māori as Māori may mean that the Bill is too simple a fix.
The Treaty binding New Zealanders
The stated intention of the Bill is to see the Treaty take its rightful place as an historical document which will bind New Zealanders.
The question raised is, therefore, whether or not this can occur without the principles of the Treaty being recognised? Can they be recognised without being identified, even if not exhaustively?
What does “binding” mean? To lawyers, it usually means:
- consequences like damages or injunctions are available for breaches.
The principles of the Treaty have been developed partly as a result of the two texts of the Treaty leading to different understandings, and because of circumstances and issues that could not be foreseen in 1840. There are significant differences between the “official” English version of the Treaty, and a modern translation of Tiriti and the Māori language document actually signed at Waitangi on February 6th 1840. Do the principles of the Treaty really help resolve them?
Is the term “principles” used mainly because having two literal versions is inconvenient? Is it rather like saying “comply with the spirit of a law, not the letter of that law”, because the “letter of the law” doesn’t help?
A full understanding of the Treaty which will equip Māori and non-Māori New Zealanders to create a future as one nation may not be possible without the principles. The Tribunal is likely to see achieving its goal as being dependent on developing the principles of the Treaty.
It is therefore reasonable to debate whether or not removing the references to the principles will obtain the objective that Mr Peters seeks to achieve, i.e. reduction in the “disquiet” about the Treaty. The Treaty will always be part of our history, and while it remains part of our current law, it is part of our present as well. That may necessitate recognition that the principles of the Treaty are also a part of our lives.
It may well be that removing the references to its principles from our law will still mean we have to live with those principles, whatever they are; and whatever consequences, good or bad, those principles may have.
Mr Peters’ Bill might not get a First Reading before the election, but if it does then we can expect a lively debate in the House and hopefully in the wider community about the principles of the Treaty.
If this Counsel helps to focus that debate, then it has served its purpose. Mr Peters’ Bill may well not pass, but the issues will not go away.