Principles of the Treaty of Waitangi

The principles of the Treaty of Waitangi (Māori: ngā mātāpono o te tiriti) is a set of principles derived from, and interpreting, the Treaty of Waitangi, which was signed in New Zealand in 1840. The phrase "principles of the Treaty of Waitangi" was first used in the Treaty of Waitangi Act 1975, and the principles were codified in 1987. There is no final list and they are determined on a case-by-case basis. They include the three Ps – partnership, participation and protection of rangatiratanga (Māori authority).^[1] According to the law firm Chapman Tripp, the main principles are those of partnership, good faith, active protection, the need for compromise and the duty to consult.^[2]

The principles of the treaty are often mentioned in contemporary New Zealand politics.^[3]

The Treaty of Waitangi Act 1975 introduced the phrase "principles of the Treaty of Waitangi". It is found twice in the long title, in the preamble, and in Section 6(1), which provides for the Waitangi Tribunal to inquire into claims by Maori that they are prejudicially affected by Crown acts (or omissions) that are inconsistent with the principles of the treaty.^[4] The long title summarises the act as:

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.^[5]

Hayward (2012) notes that it may better to apply the intentions or principles of the treaty, as the treaty text itself is not law. Reasons given are that the English and Māori language versions "do not have exactly the same meaning", and the 1840 treaty "focuses on the issues relevant at the time it was signed". Instead, the Treaty of Waitangi Act 1975 provides for the intentions and goals of the treaty to be taken into account through the principles of the Treaty of Waitangi.^[6] The Waitangi Tribunal's key function is to evaluate Crown actions against the intentions of the parties that signed the Treaty. The Tribunal also has the specific authority to determine the meaning of the two texts of the Treaty.^[7] Hayward (2004) states:

The Tribunal's findings ... are expressed in the currency of treaty principles – which principles are applicable to the particular case, and how the Crown breached those principles, if at all.^[8]

In order to apply the Treaty of Waitangi in a way that is relevant both to the Crown and to Māori today, the Waitangi Tribunal and the courts must consider the broad sentiments, the intentions and the goals of the treaty, and then identify the relevant principles of the treaty on a case-by-case basis. ^[9] Hayward (2004) concludes that: "... each Tribunal is required to determine the principles of each claim on a case by case basis".^[8]

Where there are issues of statutory interpretation or judicial review proceedings, the courts of New Zealand follow the case law^[10] on the principles of the Treaty originating from New Zealand Maori Council v Attorney-General,^[11] This case was brought in the High Court by the New Zealand Māori Council in 1987. There was great concern at that time about the ongoing restructuring of the New Zealand economy by the then Fourth Labour Government, specifically the transfer of assets from former government departments to state-owned enterprises. Because the state-owned enterprises were essentially private firms owned by the government, there was an argument that they would prevent assets which had been given by Māori for use by the state from being returned to Māori by the Waitangi Tribunal and through treaty settlements. The Māori Council sought enforcement of section 9 of the State-Owned Enterprises Act 1986 which reads: "Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi".^[12] The Court of Appeal, in a judgment of its then President Sir Robin Cooke, decided upon the following treaty principles:

• The acquisition of sovereignty in exchange for the protection of rangatiratanga.
• The treaty established a partnership and imposed on the partners the duty to act reasonably and in good faith.
• The freedom of the Crown to govern.
• The Crown's duty of active protection.
• The duty of the Crown to remedy past breaches.
• Māori to retain rangatiratanga over their resources and taonga and have all citizenship privileges.
• Duty to consult.

In 1989, the Fourth Labour Government adopted the Principles for Crown Action on the Treaty of Waitangi. Therese Crocker has argued that Labour's publication of the principles "comprised one of a number of Crown responses to what is generally known as the 'Maori Renaissance'."^[13] Prime Minister David Lange, in an introduction to the document said of the principles that:

They [the principles] are not an attempt to rewrite the Treaty of Waitangi. These Crown principles are to help the Government make decisions about matters related to the Treaty. For instance, when the Government is considering recommendations from the Waitangi Tribunal.
I have said that the Treaty of Waitangi has the potential to be our nation's most powerful unifying symbol. I trust that these principles demonstrate that there is a place for all New Zealanders within the Treaty of Waitangi.^[14]

The principles in the 1989 publication are as follow:

This principle describes the balance between articles 1 and 2: the exchange of sovereignty by the Māori people for the protection of the Crown. It was emphasised in the context of this principle that "the Government has the right to govern and make laws".^[16] In a 1989 presentation about how the principles of The Treaty of Waitangi were intended to guide Crown action, Geoffrey Palmer noted: "The First and Second Articles of the Treaty are both strong statements which necessarily qualify one another. Kawanatanga is subject to a promise to protect rangatiratanga. Rangatiratanga is subject to an acknowledgement of kawanatanga."^[17]

The Government also recognised the Court of Appeal's description of active protection, but identified the key concept of this principle as a right for iwi to organise as iwi and, under the law, to control the resources they own.

The Treaty of Waitangi principles have been widely incorporated into legislation, thus allowing them to influence New Zealand law.^[22] The legislation includes:

• Fisheries Act 1983
• Environment Act 1986
• State Owned Enterprises Act 1986
• Conservation Act 1987
• Resource Management Act 1991
• Crown Minerals Act 1991
• Marine and Coastal Area (Takutai Moana) Act 2011

By 2021, the Treaty of Waitangi or its principles are referred to in over thirty-five Acts.^[10]

The "Principles of the Treaty of Waitangi Deletion Bill" was introduced to the New Zealand Parliament in 2005 as a member's bill by New Zealand First MP Doug Woolerton. "This bill eliminates all references to the expressions 'the principles of the Treaty', 'the principles of the Treaty of Waitangi' and the 'Treaty of Waitangi and its principles' from all New Zealand Statutes including all preambles, interpretations, schedules, regulations and other provisos included in or arising from each and every such Statute".^[23]

At the first reading of the bill, New Zealand First leader Winston Peters said:

this is not an attack on the treaty itself, but on the insertion of the term "the principles of the Treaty" into legislation.
...
This bill seeks to do three fundamental things. First, as the bill's title implies, it seeks to remove all references to the undefined and divisive term "the principles of the Treaty of Waitangi" from legislation. Second, it seeks to reverse the insidious culture of division that has grown up around the existence of these principles. It has seen Māori pitted against Māori and non-Māori, seen family members pitted against each other, and gone right to the heart of our social fabric. Finally, the bill aims to put an end to the expensive and never-ending litigious programme that has sprung up around these principles. This programme has diverted hundreds of millions of dollars into dead-end paths and away from the enlightened programmes that are the true pathway to success.^[24]

After failing to pass its first reading, the bill was reintroduced after the 2005 election, with the Labour Party promising to support the bill to select committee as part of its confidence and supply agreement with New Zealand First.^[25] This time, the Bill passed first reading 111 votes in favour (Labour, National, New Zealand First, United Future, ACT New Zealand, and Progressive), 10 votes against (Green Party, Māori Party).^[26]

That bill failed to pass its second reading in November 2007.^[27]

In a legal analysis of the bill for Chapman Tripp, David Cochrane argued that without the principles it would probably be an "impossible task" for the Waitangi Tribunal to carry out its role.^[2]

The ACT party has proposed a referendum on the Principles of the Treaty of Waitangi, something that gained media attention during the 2023 New Zealand general election campaign.^{[28][29][30][31][32]} There has been opposition to the proposed referendum by those who view it as unnecessary or divisive.^[33][34][35]

Following the 2023 election and the formation of a National-led coalition government, ACT embarked on a public information campaign in early February 2024 to promote its Treaty Principles Bill. This campaign includes the creation of a new website called "treaty.nz," which has a Questions and Answers section outlining the party's approach to the principles of the Treaty of Waitangi and a video featuring Seymour. Seymour also contested claims that the opposition was trying to rewrite or abolish the Treaty of Waitangi. The public information campaign also came after a leaked Justice Ministry memo claimed that the proposed bill clashed with the text of the Treaty.^[36]

On 14 November 2024, the Treaty Principles Bill passed its first reading despite opposition from the Labour, Māori and Green parties.^[37]

• Co-governance

• "The Treaty bill is an act of extreme bad faith", Dr Carwyn Jones, 21 July 2024, E-Tangata
• "Principles for Crown Action on the Treaty of Waitangi" - A 1989 speech by Geoffrey Palmer QC, the Deputy Prime Minister