8. Principles of the Treaty: Courts

Not satisfied with the debacle with the Waitangi Tribunal, the Fourth Labour government introduced the “principles of the Treaty” into legislation by means of  “Treaty clauses” in acts affecting the Crown.

The first was included in legislation in 1986. Such a clause requires the Crown to comply, have regard to, or similar, with the “principles of the Treaty” in respect of Crown assets. 

The Court of Appeal stepped outside its statutory role of applying or interpreting the law and proceeded to "make law" by assuming the task of defining what the relevant principles were and then deciding if the principles had been breached. 

Although the role assumed by the Court was constitutionally questionable, its decisions on the principles are still binding in law.

The important point about the principles of the Treaty is that they are creatures of statute. They are not the same as the rights and obligations in the Treaty itself, which are not part of New Zealand law.

The first case involving the principles was the Lands case in 1987. In that case, and in a series of subsequent judgments, the courts effectively elevated a simple, historic treaty into an almost spiritual compact between two races that would be “a positive force in the life of the nation and so in the government of the country”, and “because of the nature of the compact” it had “a continuing application in the life of New Zealand”.
See:  https://thetreatyfacts.blogspot.com/p/the-questionable-role-of-courts-role-in.html

https://thetreatyfacts.blogspot.com/p/treaty-clauses-and-decisions-of-courts.html

https://thetreatyfacts.blogspot.com/p/new-zealand-courts-have-totally.html

Fortunately the courts’ views on what constituted the principles of the Treaty were fairly moderate such as the duty to act reasonably, honourably, and in good faith, the duty to make informed decisions, the principle of active protection, and the principle of redress.

On the other hand the Court of Appeal's comments on partnership in the Lands case and subsequent cases were overstated and irresponsible. They have been seized on by Maori rights supporters to justify the view that the Treaty was a partnership between the Crown and Maori.  The Cabinet Manual also accepts (wrongly) that the Treaty represented a partnership. 

Unfortunately the courts also adopted some of the (non-binding) extreme views of the Waitangi Tribunal. Once accepted by the courts they became rulings by the courts and binding in law. 

The courts also accepted that the Crown’s guarantee in article 2 in respect of taonga meant “treasures” rather than the more appropriate “possessions”. In addition, the courts decided that what constituted treasures should be judged at the time of the claim and not at the date of the Treaty. That interpretation of the Treaty has cost New Zealand dearly.

The Treaty principles defined by the courts in these cases are binding in law but within narrow parameters. A court defines the principles as they relate to Crown obligations in respect of the specific Crown asset and the Crown’s actions before the court, and then decides if there has been a breach of those principles in that particular case. 

In other words there has to be:

  • A Treaty clause in legislation that affects the Crown.

  • An application to the court to rule what principles of the Treaty apply, and if the Crown has breached those principles

  • The principles of the Treaty, even if previously defined by the courts, are not of general application. They can only relate to the Crown’s obligations, as a party to the Treaty, and the court must rule that a certain principle is applicable in that set of circumstances, and that the principle has been breached.

Thus, the adoption of the principles of the Treaty by government departments and private organisations without a Treaty clause and a ruling from the courts is meaningless in law.

The situation is made worse in recent developments such as the Pae Ora (Healthy Futures) Act 2022 where the Treaty clause requires some form of compliance with the “principles of the Treaty”, but then sets out a number of provisions giving preferential health treatment to Maori. 

Those provisions have nothing to do with any defined Treaty principle and are in breach of section 19 of the New Zealand Bill of Rights Act 1990 because of discrimination based on race. Unfortunately, the provisions are valid because they are enacted by Parliament, but they are in direct conflict with New Zealand law and the Universal Declaration of Human Rights.  
https://thetreatyfacts.blogspot.com/p/ministry-of-health.html

Conclusion

In conclusion, the decisions of the courts in respect of what constitute the principles of the Treaty are only valid when considering a breach of a Treaty clause in respect of the Crown’s obligations. They are minor significance from a legal point of view.

However, the entrenchment of “bogus” principles of the Treaty throughout government department and private organisations is a major problem. While it is a gratuitous trend and has no legal basis, it completely misrepresents and confuses the law relating to the Treaty.

Treaty principles and the constitution

The “principles of the Treaty” are a completely separate legal concept to the actual Treaty itself. They can have no effect of New Zealand’s constitution.
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