We are used to hearing and reading demands based on “Treaty rights”, along with the corollary that the rest of the community owes Treaty obligations to Maori. There may be demands for partnership rights, for co-governance, or for simple karakia. They are all based on the Treaty.
It may come as a surprise, but:
FACT: The Articles of the Treaty of Waitangi in themselves have no status in New Zealand law. They are not enforceable in the courts.
The Treaty of Waitangi is an international treaty and is governed by international law. It is not part of the law of New Zealand. Therefore any claims to rights or privileges that are based on the actual Articles of the Treaty have no legal foundation and are not enforceable in court.
FACT: The Articles of the Treaty can only be made binding by including them in a New Zealand statute (act of Parliament).
The only way that the Treaty Articles can be made binding in New Zealand is by incorporating an obligation to comply with them in New Zealand legislation. That is in an act of Parliament.
Waitangi Tribunal
At page 437 the Tribunal stated:
Under New Zealand law, the treaty cannot be the basis of litigation in the courts unless it has been given effect by statute. Before the 1980s, there were only isolated statutory references to the treaty. One example was section 8 of the Fish Protection Act 1877, which provided that nothing in the Act was to affect any of the provisions of the treaty or to take away or limit any Māori rights secured by the treaty to any fishery. The Tribunal in the Report on the Muriwhenua Fishing Claim commented on that provision: It recognized the Treaty of Waitangi but the manner in which it did so illustrates a recurring theme, apparent also in Maori land laws (the Native Land Act 1862 for example) that Maori concerns for the recognition of Treaty interests could be met by mentioning the Treaty in the Act, in a general way, and although nearly everything else in the Act might be contrary to Treaty principles.
The general absence of statutory recognition of the treaty until relatively recently explains the paucity of litigation about its meaning. (The Tribunal in its 1983 Report on the Motunui–Waitara Claim, listed 14 court cases between 1847 and 1977 in which the treaty had been pleaded, all without success.) It also explains why treaty-based objections by Māori to particular New Zealand laws have most often been expressed in petitions to Parliament or, since 1975, in claims to this Tribunal.
In the case of Wi Parata v The Bishop of Wellington in 1877 Chief Justice Sir James Prendergast’s statements when delivering judgment would influence decision-making on Treaty of Waitangi issues for decades. Prendergast ruled that the courts lacked the ability to consider claims based on aboriginal or native title. The Treaty of Waitangi was ‘worthless’ because it had been signed ‘between a civilised nation and a group of savages’ who were not capable of signing a treaty. Since the treaty had not been incorporated into domestic law, it was a ‘simple nullity’.
That case has been criticised retrospectively and somewhat unfairly. The Articles of the Treaty had not been incorporated into the law by legislation, therefore the Treaty had no legal status.
Richardson J (one of the five judges of the Court of Appeal) explained the status of the Treaty in New Zealand law:
The received view of the law is that the Treaty of Waitangi does not form a part of the municipal law of New Zealand as administered by its Courts except to the extent it is made so by statute.
Richardson J continued:
This proposition is referred to by the Privy Council in Hoani Te Heuheu Tukino v. Aotea District Maori Land Board [1941] A.C. 308, where Viscount Simon L.C. delivering the judgment of the Board said –
It is well settled that any rights purporting to be conferred by such a treaty of cession cannot be enforced in the Courts, except in so far as they have been incorporated in the municipal law….So far as the appellant invokes the assistance of the court, it is clear that he cannot rest his claim on the Treaty of Waitangi, and that he must refer the court to some statutory recognition of the right claimed by him.
To the same effect is the statement by Turner J. in In re The Bed of the Wanganui River [1962] N.Z.L.R. 600, at 623 when he observed that the obligation of the Crown under the Treaty of Waitangi was akin to a treaty obligation, and was not a right enforceable at the suit of any private person as a matter, of municipal, law by virtue of the Treaty of Waitangi itself.
In other words the Articles of the Treaty in themselves are not part of the law of New Zealand. No one can claim rights or enforce obligations based on the Treaty Articles in a New Zealand court.
The Treaty
Resource Centre trc.org.nz
agrees:
“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.”
Incorporating the Treaty into New Zealand law
From 1840 until 1975 no provisions were included in New Zealand legislation making the Treaty Articles enforceable in New Zealand courts. Therefore, in the words of Chief Justice Sir James Prendergast, the Treaty remained a “simple nullity”.
The Treaty of Waitangi Act in 1975 created the Waitangi Tribunal and a claims process for Maori which led to a succession of Treaty claims and awards of compensation.
The Act included the two versions of the Treaty, but, somewhat surprisingly, none of the rights or obligations under the Treaty’s Articles were embedded into the legislation. They were replaced by a completely novel invention, “the principles of the Treaty”.
Claims lodged with the Tribunal are not based on breaches of the articles of the Treaty but on acts of the Crown inconsistent with the principles of the Treaty. As we shall see, those principles are not defined anywhere so they are difficult to establish in law.
The end result is that the Treaty itself and its much disputed Articles are still not part of New Zealand law. They are not quite the "nullity" of Sir James Prendergast but they would not support a legal claim on their own. However their amorphous off-spring – the principles of the Treaty – could support a claim in a court of law, if there was a Treaty clause in the relevant legislation, and if the claimant had deep enough pockets to risk the court having to establish breaches of principles that are as unknown and as uncertain as say… the meaning of the Articles of the Treaty.
