The rights and obligations in the three Articles of the Treaty of Waitangi have never been incorporated into New Zealand law. That would need legislation specifically identifying those rights and obligations and making them binding on the Crown.
Instead, the Treaty of Waitangi Act 1975 gave the Waitangi Tribunal the authority to make recommendations to the Crown on breaches of "the principles of the Treaty of Waitangi", but without defining what those principles were.
In 1986 Parliament incorporated the first Treaty clause in an act of parliament creating an obligation not to act in any way inconsistent with the principles of the Treaty of Waitangi (or similar words). Surprisingly the principles were not listed or identified in any way.
Treaty clauses
The Lands case in 19887 was the first Court of Appeal case to consider a Treaty clause and offer an opinion on what constituted the principles of the Treaty. The Court resolved in that case that the Treaty itself and its rights and obligations were not part of New Zealand law because they had never been incorporated into New Zealand legislation. However the Treaty clause in the State-Owned Enterprises Act placed a statutory obligation on State-owned enterprises relating to the Treaty. Section 9 stated:
9 Treaty of Waitangi
Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.
The obligation was not to comply with the obligations under the Treaty and its articles but to comply with “the principles of the Treaty”. There were of course no principles set out in the Treaty, or, for that matter, anywhere else. The Waitangi Tribunal had been created in 1975 and had defined some principles in its various reports, but the Tribunal was only a commission of inquiry and its findings were recommendations only and limited in effect by the statutory scope of the Tribunal. Its conclusions were not binding in law.
The Court saw section 9 as an open invitation from Parliament to express its own views on what constituted “the principles of the Treaty”. It had before it, the Court assumed, a carte blanche and an invitation from Parliament to create law. It showed no hesitation in doing so. In the Lands case and in subsequent cases over the next few decades the courts applied a creative enthusiasm in identifying what it considered to be “the principles of the Treaty” and soon established an extensive jurisprudence in that area. See here.
In another post I explain the Court’s uncritical enthusiasm for the task before it. It was clearly usurping the role of Parliament in creating law. Although the Court argued that it had been invited to do so by the wording of section 9, in similar circumstances such as Maori water rights the courts had stayed silent and deferred to Parliament, arguing that making policy was outside the ambit of the courts' role.
Not only was there no hesitation, the Court showed an unbridled eagerness for the task it had undertaken, unrestrained by the normal rules of interpretation that normally apply in considering legislation. In colloquial terms, it went over the top.
In basic terms the Court was asked to identify certain principles that did not exist in any document or anywhere else, but which were (presumably) to be based on the duties and rights in a Treaty between the British Crown, as it was then, and the Maori chiefs, as they were then, signed 147 years earlier. The actual Treaty itself and its rights and obligations contained in its three short articles were not part of New Zealand law. Ironically, however, the principles of the Treaty - that were to be derived from rights and obligations that are not binding in New Zealand law - would become binding on the New Zealand Crown, which was not a party to the Treaty. (The Treaty was signed by the British Crown at a time when New Zealand did not exist as a sovereign state.) Not only that, the principles would be binding on the Sovereign in Right of New Zealand retrospectively, stretching back for over a century before the New Zealand Crown came into existence.
The legal credentials of section 9 and the other Treaty clauses were not great. The gusto with which the Court of Appeal accepted Parliament’s invitation was concerning. But what was much more alarming was the way in which the Court overreached itself in creating law in the way that it depicted the Treaty itself. Starting with the Lands case, it proceeded, to elevate an old, simple and ambiguous treaty document into something akin to a spiritual tract with almost biblical overtones.
New Zealand courts reinvent the Treaty
Much of the following information information is taken from the Waitangi Tribunal’s Guide to the Principles of the Treaty (here)
(Page references to the Guide are included.)
The courts consigned that view of the Treaty to history and re-cast it as an almost sacred document that transcended its shortcomings and its place in history in 1840. It became a spiritual representation of solemn pact between two races that stretched far into the future, and beyond any legal considerations.
The President of the Court of Appeal Cooke set the tone in the Lands case in 1987 at page 75:
The differences between the texts and the shades of meaning do not matter for the purposes of this case. What matters is the spirit. This approach accords with the oral nature of Mäori tradition and culture. It is necessary also because the relatively sophisticated society for whose needs the State-Owned Enterprises Act has been devised could not possible have been foreseen by those who participated in the making of the 1840 Treaty.
Justice Casey in the Lands case
1987 also elevated an historic Treaty with three simple provisions into “a
positive force in the life of the nation and so in the government of the
country”. (Page 80) He also added that “because of the nature of the compact” it had “a continuing application in the life of New Zealand”.
The concept of ‘spirit” replacing the
actual words was reiterated by the McKay J in the Broadcasting case
(1992):
It is the principles of the Treaty
which are to be applied, not the literal words.
The English and Mäori texts in the first schedule to the Treaty of
Waitangi Act 1975 are not translations the one of the other, and the
differences between the texts and shades of meaning are less important than the
spirit.
In Their Lordships’ opinion the
“principles” are the underlying mutual obligations and responsibilities which
the Treaty placed on the parties. They
reflected the intention of the Treaty as a whole and included, but were not
confined to, the express terms of the Treaty (bearing in mind the period of
time which elapsed since the date of the Treaty and the very different
circumstances to which it now applies, it is not surprising that the [Treaty of
Waitangi and State-Owned Enterprises] Acts do not refer to the terms of the
Treaty). With the passage of time, the
“principles” which underlie the Treaty have become much more important than its
precise terms. (Page 75)
There is a clear suggestion that the principles of the Treaty have been given a broader meaning than the limited words of the Treaty so that they can apply to future circumstances. In other words, the court has effectively rewritten the wording of the Treaty.
Although the opinions of the Waitangi Tribunal are not in any way binding in law, they have been adopted as part of the overall jurisprudence for Treaty principles and have even been adopted in Cabinet papers and in government departments’ policies. The Tribunal’s opinions on this issue are reported in the Waitangi Tribunal’s comprehensive Guide to the principles of the Treaty referred to above.
The Waitangi Tribunal has said that:
“the essence of the Treaty transcends the sum total of its component written
words and puts narrow or literal interpretation out of place”.
In the Kaituna River Report (1984) the
Tribunal explained its jurisdiction as follows:
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 true recognition.
Not only are the opinions of the Tribunal not binding in law, it looked beyond strict legalities to form its views, it examined motivation and circumstances and reached out into what was unforeseen. In its Muriwhenua Land Report (1997), the Waitangi Tribunal expressed such views at page 76:
Although the [Treaty of Waitangi] 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’. 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. 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 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 Tribunal considered that the principles reached into the future and embraced situations that were not contemplated in 1840:
Treaty principles are therefore informed by various sources, including the literal terms of both texts, the cultural meanings of words, the influences and events which gave rise to the Treaty, as far as these can be determined from historical sources, as well as contemporary explanations and legal interpretations. These principles interpret the Treaty as a whole, including its underlying meaning, intention and spirit, to provide further understanding of the expectations of signatories. In the view of the Courts and the Waitangi Tribunal, Treaty principles are not set in stone. They are constantly evolving as the Treaty is applied to particular issues and new situations. Neither the Courts nor the Waitangi Tribunal have produced a definitive list of Treaty principles. As President Cooke has said: “The Treaty obligations are ongoing. They will evolve from generation to generation as conditions change”.
In the 1992 Fisheries Settlement Report the Tribunal emphasised how the Treaty reiterated this theme:
Who can predict the future however? Circumstances change. The protection needed for today may be different for tomorrow. The essence of the Treaty is that it is all future looking. It is not about finite rules, or final pay-offs, no matter how handsome. It is about the maintenance of principle over ever-changing circumstances. Accordingly, the abrogation of the Treaty interest, and the implicit responsibility of the Crown that goes with it, is a contradiction of the Treaty’s terms.
The honour of the Crown
The Tribunal had this to say about
this topic:
Justice Casey, in the Lands case (1987), noted that the partnership implicit in the ongoing relationship established in the Treaty required the Crown to recognise and actively protect Mäori interests. In his view, to assert this was “to do no more than assert the maintenance of the ‘honour of the Crown’ underlying all its treaty relationships”. Justice Richardson agreed that an emphasis on the honour of the Crown was important especially where the focus is on the role of the Crown and the conduct of the government, but also emphasized the reciprocal nature of Treaty obligations, requiring both partners to act reasonably and in good faith. He stated that the concept of the honour of the Crown:
… captures the crucial point that the Treaty is a positive force in the life of the nation and so in the government of the country. What it does not perhaps adequately reflect is the core concept of the reciprocal obligations of the Treaty partners. In the domestic constitutional field … there is every reason for attributing to both partners that obligation to deal with each other and with their treaty obligations in good faith. That must follow from the nature of the compact and its continuing application in the life of New Zealand and from its provisions.
No fixed principles
The principles of the Treaty are not “knowable”. That means that they are not set down in any specific place. The courts only define principles when their contribution is triggered by a Treaty clause being part of litigation before them, and that has been fairly rare in recent decades. The Tribunal has defined some principles which have gained popularity especially with the current government. They are not binding in law but the government’s adoption of them gives them a persuasive de facto validity.
The Tribunal has almost made it clear that the principles that it identities are not set in stone but are forever changing. In its decision on Stage 2 of the Te Raki claim the Tribunal explained the source of Treaty principles:
The principles are not defined in any way in our governing legislation. It is left for the Tribunal itself to define the principles against which Crown actions will be tested. Each Tribunal panel, as it reports on the claims it is hearing in any given inquiry, decides which principles are appropriate for that inquiry. No Tribunal is bound by the decisions of a previous Tribunal inquiry (or the courts). A Tribunal inquiry panel may develop principles outlined in a previous inquiry, or add new principles. (Page 21)
The “principles”, therefore, are a moving concept not originating directly from the Treaty but arising from what the Tribunal thinks appropriately represents the intention of the Treaty at each enquiry, and at that point in time.
Summary
In summary the Courts and the Tribunal have depicted the principles of the Treaty being derived from the Treaty, but in name only. The principles have evolved so that they represent the spirit, the essence, and the honour of the arrangement between the two parties that transcends the shackles of the actual words of the Treaty and strict legal interpretation. Unlike the Treaty itself, which dealt with the situation in 1840, the principles of the Treaty bind the parties for generations to come, and in respect of issues which were never contemplated when the arrangement was entered into. They ensure the ongoing special treatment of Maori.
It is not surprising that the Tribunal should make such extravagant claims being a commission of inquiry, not being bound by the normal rules of evidence, and given the make-up of the Tribunal itself. However, the willingness of the courts to place undefined principles outside the limitations of the actual words of the Treaty, and beyond the ambit of the law, and elevate them to into such nebulous concepts as honour and spirit, with their effect stretching far into the future, is highly concerning. And that is especially so when those lofty ideals do not sit comfortably alongside New Zealand’s constitution and a democracy where all people are considered equal. In fact equality for all New Zealanders is one of the fundamental “principles” that is inherent in all of the Articles of the Treaty and yet it has received very little acknowledgement by the courts or the Tribunal as one of the principles of the Treaty.
Sometimes it appears as if the courts were so enamoured with the principles that they created that they failed to consider the fundamental principle of Article 3 of the Treaty that all New Zealanders were to be treated as equals. The courts did not seem to recognise that placing the Treaty on a pedestal and extending a special treatment to Maori for generations to come, based on the courts’ subjective interpretation of the spirit and honour of the Treaty, was completely contrary to the essential principle of equality that the Treaty itself promoted.
As an example, in a High Court decision concerning the Crown’s handling of the 1994 Mäori Electoral Option, Taiaroa and Others v Attorney-General, Justice McGechan took the opportunity to offer some observations about the possibility of a Crown Treaty duty to protect the Mäori Parliamentary seats, if Mäori wished to retain them:
The seats became a Treaty icon. Equally there is no doubt Treaty principles impose a positive obligation on the Crown, within constraints of the reasonable, to protect the position of Mäori under the Treaty and the expression from time to time of that position ... Mäori representation – Mäori seats – have become such an expression. Adding this together, for my own part I consider the Crown was and is under a Treaty obligation to protect and facilitate Mäori representation.
Was that really a consideration in 1840? Did Article 3 not state that all New Zealanders were to have equal rights? How did the judiciary reach the position whereby special rights were to be afforded to Maori because they were an “icon” of the Treaty?
Limitations
At times, but very rarely, the courts appear to have shown an unease about granting Maori superior rights based on Treaty principles. The Tribunal's Guide cited above states at page 79:
In Lands, President Cooke noted that: “the Mäori people have undertaken a duty of loyalty to the Queen, full acceptance of her Government through her responsible Minister, and reasonable cooperation”. He went on to explain that:
The principles of the Treaty do not authorize unreasonable restrictions on the right of a duly elected government to follow its chosen policy. Indeed to try and shackle the Government unreasonably would itself be inconsistent with those principles. The test of reasonableness is necessarily a broad one and necessarily has to be applied by the Court in the end in a realistic way. The parties owe each other cooperation.
The Tribunal’s Guide states at page 102:
In the Dams case (1994), Mäori plaintiffs sought to prevent the Minister from approving a plan for the transfer of hydroelectric dams from Crown ownership. They were concerned that the transfer would remove the dams and their electricity production from the scope of properties which might be offered to them as redress for their claims to the Wheao and Anuwhenua rivers. The Court of Appeal held that: “The Treaty of Waitangi ... could not sensibly be regarded today as meant to safeguard rights to generate electricity”. The Court went on to say:
… any negotiated redress for any Mäori grievances relating to electricity generation cannot realistically be supposed to lie in a surrender or modification of the ownership of generating assets intended to serve district or regional or wider communities as a whole. With respect, we are not convinced by a suggestion to the contrary in the Waitangi Tribunal’s Te Ika Whenua – Energy Assets Report (1993) at p 39.
Clearly,
whatever version or rendering is preferred, the first article must cover power
in the Queen in Parliament to enact comprehensive legislation for the
protection and conservation of the environment and natural
resources. The rights and interests of everyone in New Zealand,
Maori and Pakeha and all others alike, must be subject to that overriding
authority.
At page 104 Chief Judge Durie of
the Tribunal cautioned that:
“It is out of keeping with the spirit of the Treaty that it should be
seen to resolve an unfair situation for one party while creating another for
another”. In the Mangonui Sewerage
Report (1988) the Tribunal noted that it is necessary to balance Mäori concerns
with those of the wider community, of which Mäori form a part, in considering
an appropriate remedy in order not to “over-redress” a breach of the Treaty.
The Treaty Resource Centre trc.org.nz has expressed a similar limitation on the reach of the Treaty in Criminal Law:
“In some circumstances, including especially in cases concerning criminal law, the Courts have expressly stated that the Treaty is not relevant to the case at hand. These cases emphasize the application of legislation to all New Zealanders whether they are Mäori or not, and that Parliament’s law-making capacity does not derive from, nor is it limited by, the Treaty of Waitangi.”
Parliament is the supreme law maker in New Zealand, as acknowledged in the above quote. Parliament has declined to incorporate the duties and rights in the three Articles of the Treaty into New Zealand legislation. Instead, it has incorporated the “principles of the Treaty” into legislation but without stating what those principles are. It has been left to the courts to define those principles that are binding in law. That role has also been usurped by the Waitangi Tribunal. Its views on what are the principles of the Treaty are not binding in any way, but they have been adopted on a de facto basis because they suit the policies of the current government and activists who seek greater rights for Maori.
Because “the principles” are not defined officially, the concept has been opened up to interpretation by all and sundry, so that private organisations that have no link to the Treaty are now adopting their own versions of the Treaty principles. Likewise the new report on the future of local government suggests that local government identifies itself a Treaty partner. That is nonsense and a clear indication that ideology of the Treaty is out of control.
