The three Articles of the Treaty should sit comfortably together as a balanced package. As Cooke P summed up the situation in the Lands case in the Court of Appeal:
In brief the basic terms of the bargain were that the Queen was to govern and the Maoris were to be her subjects; in return their chieftainships and possessions were to be protected, but sales of land to the Crown could be negotiated.
In fact in the great revision Articles 1 and 3 have been read down and minimised while Article 2 has been enhanced and elevated to go beyond anything that the signatories to the Treaty would have contemplated in 1840.
The ceding of sovereignty to the Crown in Article 1 has been reduced to governorship (kawanatanga), even though it is well-established in New Zealand law that sovereignty was acquired by the Crown in 1840.
Article 3 has been largely ignored because it states quite simply that all New Zealanders will have equal right of citizenship. Even then there is pressure to change "equality" for Maori to "equity" for Maori.
However, the simple clause in Article 2 whereby the Crown agrees to "protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship (ownership?) over their lands, villages and all their taonga", has become a nightmare of complicated legal relationships. Taonga has become treasures, and not just the treasures of 1840 but any so-called treasures that may come to light in the future. And the relationship between the parties has grown from a simple agreement to protect fundamental property rights into a partnership/co-governance type of arrangement that has spawned an endless number of Crown obligations classified as principles of the Treaty, along with a demand for shared governance of the country.
The elevated interpretation of Article 3 cannot sit alongside Articles 1 and 3. No matter how kawanatanga in Article 1 is construed it is an undeniable fact that the Crown has exercised sovereignty over New Zealand since 1840. Given that the Crown is undisputedly the sovereign then there can be no relationship with Maori that conflicts with the absolute right of sovereignty. Partnership and co-governance on a governmental level are simply not possible.
Similarly, if all New Zealanders have equal rights of citizenship under Article 3 then there can be no contemplation of any shared governance arrangement that gives preferential treatment or power to Maori whether based on the Treaty or based on race.
Transitional arrangement
It needs to be emphasised the Treaty was in most respects a transitional arrangement. Once sovereignty was ceded to the Crown in Article 1, that Article had no further purpose.
Likewise with Article 3. It gave Maori and settlers living in New Zealand at that time British citizenship. But subsequently all residents became British subjects by birth through the law of the new country, not the Treaty.
Article 2 should have been a transitional arrangement. It was meant to ensure that the possessions of Maori and settlers would be honoured and protected. That did not mean forever. Once the new government was established the rule of law, including property law, would apply to all citizens equally. That is what happened in most cases. Clearly there were breaches of trust in respect of some assets and there is no dispute that they should be remedied and that is happening. But to elevate the relationship under Article 2 to a governance level where it negates the effects of Articles 1 and 3 makes the Treaty a contradiction.
This fundamental conflict between, on the one hand, the pressure for equal rights of governance in Article 2, and on the other hand, the clear and simple ceding of sovereignty in Article 1 and the simple statement of equality for all New Zealanders in Article 3, has been ignored, presumably because it is an inconvenient fact and does not fit in with the narrative of those who wish to rewrite the Treaty
Bruce Mason comments in the The Principle of ‘Partnership’and the Treaty of Waitangi
The
‘partnership’ myth: The concept of a ‘Treaty partnership’ arises from a
perceived need for the sharing and re-distribution of power and resources with
Maori, rather than from the words of the Treaty itself.
The
proponents of a ‘partnership’ view assume the concept to be the most
appropriate strategy to achieve biculturalism in New Zealand. In common parlance, ‘Treaty partnership’ is
ill-defined, confused, and misleading— dangerously so in regard to the Crown’s
obligations to all citizens and the potential for detriment to the majority of
New Zealanders.
There is an inherent and inescapable connotation
of equality between the ‘partners’ that make the use of the term inappropriate
in the full context of the Treaty. As a metaphor, ‘partnership’ raises
impossible, and unfair, expectations. In
relation to the Treaty, ‘partnership’ between races, or between the Crown and
Maori, is no less than a myth— more so is the notion of ‘equal partnership’
Conflict with equal rights
Bruce Mason continues:
At an
individual citizen level there is an irreconcilable conflict between
‘partnership’ and ‘equal citizenship’ views of the Treaty. The former has no basis in the Treaty—it is a
creature of social engineers, the judiciary, and a bureaucracy captured by a
‘politically correct’ Treaty orthodoxy.
The latter has direct expression in the usually preferentially quoted
Maori version of the Treaty—all New Zealanders have the same rights and duties
of citizenship.
The ‘partnership’ model is now well established within many institutions of Government. Because the Court of Appeal introduced the model into the common law it now tends to be uncritically accepted and advanced as the only valid approach towards Treaty principles.
Legal challenges
Treaty clauses that require compliance with, or giving effect to, the principles of the Treaty should not be limited to Maori claiming breaches of Article 2, they should be open to anyone who might wish to claim that the Crown's sovereignty has been impugned, in breach of Article 1. Or, that the preferential treatment of Maori in some recent legislation is a fundamental breach of Article 3 of the Treaty which guarantees equal rights for all New Zealanders.
Bruce Mason considers that issue in relation to the Treaty clause in DOC legislation, and the intention or effect of that clause:
However, if applied as a means of divesting or sharing control, management, or ownership of the public conservation estate, ‘partnership’ between DOC and particular classes of citizens, as represented by iwi, hapu, or individuals of Maori descent, will create inequalities of opportunity and benefit between individual citizens.
This raises the possibility of legal challenges of decisions thought to be contrary to Article Three, in the context of “giving effect to the principles of the Treaty of Waitangi” as required by section 4 of the Conservation Act.
Approximately 13 percent of the population is of Maori descent and potential beneficiaries of transferred ownership or control over a substantial public estate. If a ‘partnership’ model is applied by way of preferential allocations to bodies or persons with unproven or invalid claims under the Treaty, where does this leave the other 87 percent who have lost rights of publicly accountable control, and possibly use, over a shared heritage?
Inequalities that are likely to arise will not just be between Pakeha and Maori. There will result major disparities between Maori claimants as shown by recent disagreement over allocation of sea fisheries.
There is also the question—why are Crown agencies seeking to forge ‘partnerships’ only with iwi? The Crown’s obligations arising from the Treaty and constitutional law extend to every citizen, of Maori as well as non-Maori descent.
The Department of Conservation, as the central custodian of the public estate, is limited by statute to preserving natural resources for their own intrinsic worth and allowing public uses consistent with that objective. Fundamental changes to this founding ‘preservation-with-use’ philosophy and to public rights of access and enjoyment are at issue.
There is a major gulf between the existing legislative purposes for Crown protected areas and the variously expressed ‘conservation-for-utilisation’ preferences of many iwi. This conflict of objectives should be fully debated before any consideration is given to handing ownership or control of public lands to private interests. The ‘partnership’ course is to change the essential character of public lands and who the intended beneficiaries are, by a confused and undemocratic application of the Treaty.
How to challenge racial preference?
How could someone challenge the Crown's breach of, say, Article 3 of the Treaty on the grounds that the Crown has granted superior rights of citizenship to Maori in some recent legislation?
Waitangi Tribunal
The doors of the Waitangi Tribunal are closed by the Act itself. Under section 6 of the Treaty of Waitangi Act any "Maori or any group of Maoris (sic)" may submit a claim for breach of the Treaty principles. All other New Zealanders are denied that right.
It is ironic that Article 3 of the Treaty guarantees all New Zealanders equal rights of citizenship, and yet the Treaty of Waitangi Act grants Maori the right to claim against any breach of the Treaty, but non-Maori are denied that fundamental right. That in itself is a breach of the Treaty.
The settlers and those who followed them, who do not have any Maori heritage, are badly dealt to by the current interpretation of the Treaty. They have no rights at all. The parties to the Treaty were the Crown and the rangatira - the Maori chiefs. However individual Maori can submit claims to the Waitangi Tribunal even though they were not parties to the Treaty (as individuals), but non-Maori cannot.
We have the bizarre situation where some provisions of the Treaty of Waitangi Act blatantly breach the Articles of the Treaty.
The courts
What of the "principles" of the Treaty? Surely the principle of equality has been breached by some of the recent legislation that mandates special treatment for Maori through a Treaty clause. Could that be challenged through the courts as being in breach of Article 3?
That depends on how the Treaty clause is drafted. The early Treaty clauses were broadly drafted simply requiring compliance (or similar) with the principles of the Treaty. As the principles were undefined it gave the courts the opportunity to intervene to define the principles relevant to the case before them and decide if there had been a breach of those principles.
In later years Treaty clauses have simply recited the responsibility of the Crown to give effect to the principals and then, in the operative part, the specific obligations are listed. An example is the Pae Ora (Healthy Futures) Act 2022 (replacing the New Zealand Public Health and Disability Act 2000) which gives preferential treatment to Maori in breach of Article 3 of the Treaty. The Act has a Treaty clause in section 6:
Te Tiriti o Waitangi (the Treaty of Waitangi)
In order to provide for the Crown’s intention to give effect to the
principles of te Tiriti o Waitangi (the Treaty of Waitangi), this
Act—
(a) requires .........
It then goes on to list 13 obligations for the specific treatment of Maori. Theses are set out below to show the extent for preferential treatment for Maori.
In order to provide for the Crown’s intention to give effect to the principles of te Tiriti o Waitangi (the Treaty of Waitangi), this Act—
(a)
requires the Minister, the Ministry, and all health entities to be guided by the health sector principles, which, among other things, are aimed at improving the health sector for Māori and improving hauora Māori outcomes; and
(b)
establishes the Māori Health Authority and sets out its objectives and functions; and
(c)
requires the Minister—
(i)
to establish a permanent committee, the Hauora Māori Advisory Committee, to advise the Minister; and
(ii)
to seek that committee’s advice before exercising certain powers; and
(d)
requires the Minister to have regard to any advice of the Māori Health Authority when determining a health strategy; and
(e)
requires the Hauora Māori Strategy to be jointly prepared by the Māori Health Authority and the Ministry; and
(f)
provides for iwi-Māori partnership boards to enable Māori to have a meaningful role in the planning and design of local services; and
(g)
requires the Government Policy Statement to contain priorities for hauora Māori; and
(h)
requires Health New Zealand and the Māori Health Authority to engage with iwi-Māori partnership boards; and
(i)
requires Health New Zealand and the Māori Health Authority to jointly develop and implement a New Zealand Health Plan and to work together in the performance of specified functions of Health New Zealand; and
(j)
includes, as criteria for appointment to the board of the Māori Health Authority, that the board collectively has knowledge of, and experience and expertise in relation to, te Tiriti o Waitangi (the Treaty of Waitangi), tikanga Māori, mātauranga Māori, kaupapa Māori services, and cultural safety and responsiveness of services; and
(k)
includes, as criteria for appointment to the board of Health New Zealand, that the board collectively has knowledge of, and experience and expertise in relation to, te Tiriti o Waitangi (the Treaty of Waitangi) and tikanga Māori; and
(l)
requires the board of Health New Zealand to maintain systems and processes to ensure that Health New Zealand has the capacity and capability to understand te Tiriti o Waitangi (the Treaty of Waitangi), mātauranga Māori, and Māori perspectives of services; and
(m)
requires the Māori Health Authority—
(i)
to have systems in place for the purpose of engaging with Māori and enabling responses from that engagement to inform the performance of its functions; and
(ii)
to support and engage with iwi-Māori partnership boards; and
(n)
requires the Māori Health Authority to report back to Māori on how the engagement under section 20 has informed the performance of its functions.
Given that there is an acute shortage of funds in the health services, the obligations to provide special services for Maori, based on race and not need, necessarily means that health services for all other New Zealanders will be reduced.
Section 4 of the Data and Statistics Act is the in the same format:
4 Te Tiriti o Waitangi/Treaty of WaitangiIn order to recognise and respect the Crown’s responsibility to give effect to the principles of te Tiriti o Waitangi/the Treaty of Waitangi,this Act—
(a)
imposes ........
It then lists seven obligations in respect of special treatment for Maori.
The problem is that in both cases the legislation sets out in detail what the obligations are that arise from the Treaty principles. Parliament has expressed its wishes clearly. There is no ambiguity which would entitle the court to intervene. A challenge on that basis is therefore not available.
A possible avenue would be to apply to the High Court for a declaration to the effect that such preferential clauses in statutes were in breach of the Article 3 of the Treaty. For good measure one could also argue that they were also in breach of NZBORA, the Human Rights Act and various international treaties on equality and discrimination.
I wouldn't hold out too much hope. The dismally drafted Treaty of Waitangi Act escaped the critical scrutiny of many of our top academic lawyers.
The decision to include Treaty clauses in legislation was made by top lawyers in the government. Those clauses required compliance with a set of the principles that didn't exist, and which related to a Treaty which had no legal standing in New Zealand, and to boot, had two contradictory versions. It was perhaps one of the worst examples of "bad law" one could ever find. Yet it was lauded by the Court of Appeal in the Lands case and subsequent Treaty clause cases. Our top judges enthusiastically accepted the opportunity given them to opine on the principles of the Treaty without even a sideward glance at the absurdity of the concept.
Principles of the Treaty
The concept of Treaty principles was invented in 1975 in the Treaty of Waitangi Act as part of the Waitangi process to expedite claims for breaches of the Treaty. It was a legal nonsense in that the principles did not exist but were supposed to represent "the spirit" of the Treaty rather than the text. It has gone down hill from there. The Waitangi Tribunal was allowed to define principles as it saw fit and make recommendations to the Crown. It had a very narrow jurisdiction, it was not a court of law, and its findings were not binding on the courts, the Crown, or parliament. Despite that, government agencies considered that the findings of the Tribunal were part of the "jurisprudence" of the Treaty. As a result government policy in the Cabinet Manual and beyond has relied on the findings of the Tribunal (and the courts) to formulate government Treaty policy.
The idea to introduce Treaty clauses into legislation in 1987 was another fundamental breach of the rule of law. The rule of law as stated famously by Lord Bingham requires:
The law should be accessible and so far as possible, intelligible, clear and predictable.
A provision requiring a Crown agency to comply with the principles of the Treaty of Waitangi when the Treaty did no exist in New Zealand law and there was no such thing as the "principles of the Treaty", would not have passed Lord Bingham's test.
The principles of the Treaty have proved to be a Trojan horse that has allowed successive governments to introduce racially based legislation which is in breach of the articles of the Treaty.
The original intention was that Treaty clauses would only be included in legislation that affected the obligations of the Crown (as the guaranteeing party under the Treaty) and Crown agencies. They would only relate to land and taonga under Article 2.
That has changed incrementally. Today Treaty clauses are being inserted into legislation that:
- Affect organisations that are not Crown agencies and which have no Treaty obligations.
- Relate to matters that are completely outside the scope of the Crown's guarantee in Article 2.
The real concern is that today's version of a Treaty clause includes a recital that sets out the responsibility of the Crown to give affect to the principles etc. That is the key that opens the door. The clause then goes on to set down in detail obligations that have nothing to do with the Treaty or its Articles, that are in breach of the Treaty and its Articles, and that have nothing to do with any of the principles of the Treaty that have been defined by the courts.
In other words the concept of the Treaty principles is being used as a cover to enable the government to introduce racially based legislation which is blatantly in breach of the Treaty Articles.
