The “principles of the Treaty” are the source of most of the slogans relating to the Treaty.
Over a century after the Treaty was signed in 1840 the Third Labour government responded to pressure to provide a process for considering claims for breaches of the Treaty. The Waitangi Tribunal was set up by the Act to consider such claims based on breaches of the “principles of the Treaty” rather than breaches of the Treaty articles.
It is presumed that breaches could not be a based on the articles of the Treaty itself as there was so much dispute about the interpretation and meaning of its various versions.
The “principles of the Treaty” turned out to be a completely flawed concept. The principles were supposed to represent the meaning and intention of the Treaty, but the meaning of the Treaty has been disputed since it was signed.
Ironically, the much disputed rights and obligation in the Treaty itself were replaced by Treaty principles which did not exist, but were to be based on the meaning of Treaty articles that conflicted or were disputed, and which had no status in New Zealand law. Not a good start, and it was downhill from there.
See: https://thetreatyfacts.blogspot.com/p/treaty-of-waitangi-acts-fundamental-flaw.html
The Tribunal was assigned the role of considering claims by Maori (not non-Maori) against the Crown for breaches of the principles of the Treaty of Waitangi. The principles of the Treaty did not exist in 1975 so the Tribunal assumed the role of identifying what it believed to be the principles of the Treaty. It then considered the claim, decided if there were breaches of the principles, and then made recommendations to the Crown. The Crown could ignore the recommendations or proceed to a Treaty settlement.
Here are some facts:
- The concept of the principles of the Treaty is confined to the very narrow role of the Tribunal and is not part of the general law of New Zealand. The concept is limited to the Tribunal and only for considering Treaty claims informally outside the jurisdiction of the courts.
The Tribunal is not a court of law. It is a commission of inquiry. (clause 8 Schedule 2 of the Act)
The Tribunal has very informal requirements in respect of evidence and can accept hearsay. (clause 6 of Schedule 2 of the Act)
The Tribunal's findings in respect of “principles of the Treaty” are not binding in law, on parliament, on the courts, or even on itself. It can change its views on the principles in each claim that it considers.
- The Tribunal's view on what constitute the principles of the Treaty have resulted in some extreme Treaty claims based on the Tribunal's highly questionable interpretation of some parts of the Treaty. Some of the extreme interpretations of the Tribunal have also been adopted by the courts.
Government acceptance of the principles of the Treaty
https://www.dpmc.govt.nz/publications/co-19-5-te-tiriti-o-waitangi-treaty-waitangi-guidance#te-tiriti-o-waitangi-the-treaty-of-waitangi
As a result the principles of the Treaty as defined by the Tribunal have been embedded in virtually every government department and agency, local government, the health system, the education system, and they are even being adopted by private organisations such as the Law Society.
This de facto adoption of the views of the Tribunal has no status in law and should be completely ignored. Hopefully all reference in legislation to the principles of the Treaty and the Waitangi Tribunal will be repealed by the new government.
See a full discussion of these issues here: https://thetreatyfacts.blogspot.com/p/the-treaty-of-waitangi-act-1975.htmlNext: 8. Principles of the Treaty: Courts
https://thetreatyfacts.blogspot.com/p/8-principles-of-treaty-courts.html
[Ma1]
