The Treaty Facts: The Waitangi Tribunal and the principles of the Treaty

From 1840 until 1975 there was mounting pressure on the New Zealand government by Maori to provide a process for considering claims of breaches of the Treaty of Waitangi by the Crown.

The Treaty had been signed by the British Crown (through the agency of Captain Hobson, the British Consul) and was not binding on the New Zealand Crown. New Zealand did not exist when the Treaty was signed. The New Zealand Crown only became a separate entity from the British Crown in in 1947 when the New Zealand Parliament adopted the 1931 British Parliament's Statute of Westminster.

In 1975 Bill Rowling's Third Labour government provided a process for resolving Treaty breaches. Rather than basing Treaty claims on breaches of the actual articles of the Treaty, the Treaty of Waitangi Act 1975 invented the concept of "the principles of the Treaty". Breaches were to be based on acts or omissions of the Crown that were inconsistent with "the principles of the Treaty of Waitangi". The Waitangi Tribunal was established to consider claims for breaches of those principles.

Although the Treaty of Waitangi Act referred to the Treaty and actually set out the English and Maori version of the Treaty in Schedule 1, this was as a reference only. There was no provision in the body of the Act imposing the obligations in the Treaty on the New Zealand Crown. Instead, the Act appeared to require the New Zealand Crown not to act inconsistently with "the principles of the Treaty".

Any claims to the Tribunal must therefore be based on breaches of the principles of the Treaty. Breaches of the obligations under the actual Treaty itself are not actionable through the Tribunal.

Claims can only be made against the Crown

Under section 6, claims to the Tribunal can only be made against the new Zealand Crown. The Tribunal has no jurisdiction to consider claims for breaches of the Treaty principles against individuals, commercial entities or local authorities, or Maori.

Only Maori can make claims

Under section 6(1) only a Maori or “any group of Maoris” (sic) may make a claim to the Tribunal for the Crown's breaches of the principles of the Treaty. The Crown is clearly a party to the Treaty, but individual or groups of Maori are not. The Treaty was signed by 500 plus chiefs. Maori were certainly beneficiaries of the Treaty, but so were the settlers. That is made absolutely clear in the preamble to the Treaty, and in article 2 the Crown agreed to protect the property rights of the chiefs, the tribes and all the people of New Zealand (tangata katoa o Nu Tirani). Likewise, article 3 granted the rights of British citizenship to all the ordinary people of New Zealand.

It appears, therefore, that the Treaty of Waitangi Act granted special rights to Maori as individuals but denied the settlers the same rights.

The settlers and their descendants could argue that this part of the Act breached article 3 of the Treaty because it granted superior rights of citizenship to Maori and denied the settlers the same rights.

As a technical point, although the Court of Appeal in the Lands case emphasised the reciprocal nature of the rights and obligations of both parties arising from the Treaty, the fact is that the Crown and the non-Mäori people of New Zealand have no legal avenue to claim for breaches of the Treaty principles by Maori.

The parties to the Treaty - the Crown?

As stated above, the Treaty was signed by the British Crown through Captain Hobson as British Consul.

However, the Act states in section 3: This Act shall bind the Crown. That means the New Zealand Crown which is enacting the legislation.

The New Zealand Crown was not a party to the Treaty and is not responsible in law for any of the obligations under the Treaty because they have not been incorporated into any New Zealand Act of Parliament.

The Treaty under the Act is defined in section 2 as "the Treaty of Waitangi as set out in English and in Maori in Schedule 1". It is identified (with incorrect wording for 10 years in the Maori version), but there is no operative clause in the Act making its rights and obligations binding on any party.

Section 6 (1) defines the jurisdiction of the Tribunal to consider claims in respect of practices, policies, acts and omissions made "by or on behalf of the Crown" that took place "on or after 6 February 1840".

In addition the act or omission etc must be inconsistent with "the principles of the Treaty."

The first issue is that the New Zealand Crown did not perform most of the actions/omissions etc that come within the specified time-frame. They were mostly performed by the British Crown. The New Zealand Crown is not responsible for those actions unless those actions, and the responsibility for them, are specifically adopted by the New Zealand Crown in legislation. Although this Act is deemed to bind the New Zealand Crown there is no specific provision whereby the New Zealand Crown adopts liability for the actions of the British Crown for the period indicated.

The second issue is that the reference to the Treaty is irrelevant because claims can only be based on acts that were "inconsistent with the principles of the Treaty". Those principles are not to be found in the Treaty itself. Therefore, the Act needs to create an obligation for the New Zealand Crown to act consistently with "the principles of the Treaty". Section 3 is far too general for that purpose. The operative clause needs to state affirmatively that the (New Zealand) Crown must act consistently with the principles of the Treaty.

There is still the problem that even if the New Zealand Crown is deemed to be liable for the acts of the British Crown, this is retrospective legislation making the New Zealand Crown retrospectively liable for the actions of another party.

Further, as explained below, the principles of the Treaty did not exist when the legislation was enacted in 1975. How in law could the New Zealand Crown be responsible for the historical actions of a third party that were performed over a century earlier which were in breach of "principles" that did no exist at that time, and which the New Zealand Crown was not obliged to comply with?

The parties to the Treaty - Maori?

Only individual Maori or "any group of Maoris" (sic) can make a claim under the Act. However Maori as individuals were not signatories to the Treaty. In a way that is irrelevant because the right to claim is not in respect of rights under the Treaty itself but for acts which are inconsistent with the principles of the Treaty. There is nothing in New Zealand law that states that the New Zealand Crown owes a lability to "any Maori, or group of Maori" to act consistently with the principles of the Treaty, which, incidentally did not exist at the date of the enactment.

In summary:

The New Zealand Crown is not bound by any obligations under the Treaty itself because those obligations have not been incorporated into new Zealand legislation.
See: https://thetreatyfacts.blogspot.com/p/the-articles-of-treaty-are-not-binding.html

The New Zealand Crown is not bound by any obligations to Maori for breaches inconsistent with the principles of the Treaty of Waitangi because such an obligation has not been incorporated into New Zealand legislation.

What are the principles of the Treaty?

The principles of the Treaty are referred to in the Introduction to the Act. The wording clearly indicates (observance and confirmation) that the principles are already in existence:

An Act to provide for the observance, and confirmation, of the principles of the Treaty of Waitangi by establishing a Tribunal to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty.

Likewise with the Preamble:

And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles.

However, the principles of the Treaty are not defined in the Act (section 2). They are not defined in the Treaty itself or anywhere else. The reality is that the expression "the principles of the Treaty" was intended to be a new construct based on the Articles of the Treaty; an assessment of the events surrounding the signing of the Treaty; and the views of all those involved with the signing. But Parliament failed to supply a definition of the principles.

When the Treaty of Waitangi Act became law in 1975 there were therefore no principles of the Treaty on which any claim could be based, and there were no principles of the Treaty for the Tribunal to assess if they had been breached when considering a claim for a breach of the principles.

Failure to include an operative clause

The clear intention of the Act was that the Tribunal would have the power to identify the principles, and could then decide if there had been breaches of the principles. Unfortunately no such provision (an operative clause) was included in the Act formally authorising the Tribunal to identify the principles.

Effectively, this means that since 1975 the Tribunal has been acting ultra vires, outside its statutory powers, in identifying what it considers to be the principles of the Treaty. Clearly that has significant repercussions for claims that have been settled by the government on the basis of the Tribunal's recommendations.

The Tribunal is not a court of law

The Tribunal is a body set up to consider claims and make recommendations to the government. It is little known fact that the Waitangi Tribunal is not a court of law. It is a commission of inquiry. Clause 8 of Schedule 2 of the Act states:

8 Tribunal to be a Commission of Inquiry

(1) The Tribunal shall be deemed to be a Commission of Inquiry under the Commissions of Inquiry Act 1908….

Its role is outside the law and effectively involves terms of reference to consider claims and make recommendations concerning the principles of the Treaty. Section 6(3) states:

6(3) If the Tribunal finds that any claim submitted to it under this section is well-founded it may, if it thinks fit having regard to all the circumstances of the case, recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future.

Recommendations not binding

The conclusions reached by the Tribunal are only recommendations to the Crown. They are not binding on the Crown/government. They are not binding on Parliament. They are not binding in law.

Rules of evidence

As a commission of inquiry, the Tribunal does not have the strict rules of a court of law. Clause 6 of Schedule 2 of the Act states:

6 Evidence in proceedings before Tribunal

(1) The Tribunal may act on any testimony, sworn or unsworn, and may receive as evidence any statement, document, information, or matter which in the opinion of the Tribunal may assist it to deal effectually with the matters before it, whether the same would, apart from this section, be legally admissible evidence or not.

This means that the Tribunal’s findings and recommendations may be based on hearsay evidence going back centuries if the Tribunal considers that the evidence “may assist it to deal effectually with the matters before it”.

“Exclusive authority”

There is a provision in the Act that appears to suggest that the Tribunal has "exclusive authority" to determine points of law relating to the texts of the Treaty.

This relates to section 5(2):

5(2) In exercising any of its functions under this section the Tribunal shall have regard to the 2 texts of the Treaty set out in Schedule 1 and, for the purposes of this Act, shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between them.

This provision is poorly drafted as the Tribunal is not a court of law and does not have the statutory power to determine the meaning of the Treaty in law. An examination of the wording of section 5(2) shows that the Tribunal’s authority is limited in two ways. It can only be used “in exercising any of its functions under this section”. The functions in section 5 are limited to inquiring into and making recommendations in respect of claims.

Also, the authority is granted “for the purposes of this Act”. There is no purpose clause in the Act, but the Preamble states:

And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles.

The main purpose is the setting up of the Tribunal to consider claims, and for that purpose, to determine its meaning etc…..

In summary, the "exclusive authority" relates strictly to its status as a commission of enquiry, not a court, and the function of inquiring into and making recommendations in respect of claims. It is as though the Tribunal acts in a separate cocoon outside the ambit of the normal law of the land.

Treaty principles are not fixed

The Tribunal clearly believes that it has the statutory authority to define the principles of the Treaty. It has probably never examined the actual wording of the Act.

The Tribunal also believes that the principles of the Treaty that it defines are not fixed but are forever changing depending on the facts of each claim. In its decision on Stage 2 of the Te Raki claim the Tribunal explained the source of Treaty principles:

https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_207129138/Te%20Raki%20Vol%201W.pdf

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 time.

The use of the "P" word

Section 4 (2A) states that:

In considering the suitability of persons for appointment to the Tribunal, the Minister of Maori Affairs—

(a) shall have regard to the partnership between the 2 parties to the Treaty;

That "partnership" word again. This provision was not in the Act as enacted in 1975. Section 4(2A) was replaced, on 1 January 1989, by section 2(1) of the Treaty of Waitangi Amendment Act 1988 (1988 No 233), which included the reference to "partnership". This was no doubt as a result of the Court of Appeal's reference to that word in the Lands case of 1987.

The two parties to the Treaty were the British Crown and approximately 512 rangatira. There is no legislation in New Zealand's history that make the New Zealand Crown and Maori - as individuals or in groups - parties to the Treaty. In any case the Act revolves around breaches of the principles of the Treaty, and not the breaches of the rights and obligations under the Treaty by parties to the Treaty itself.

Section 4 (2A) relates strictly to how the Tribunal is constituted and the the suitability of the appointment of persons to the Tribunal. It is not relevant to anything else.

The final word

The final word on the legal status of the Tribunal's opinions on what constitute the principles of the Treaty is found in the document The principles of the Treaty as expressed by the Courts and the Waitangi Tribunal. The Tribunal states at page 75:

He Tirohanga o Kawa ki te Tiriti o Waitangi (waitangitribunal.govt.nz)

While the opinions of the Tribunal are considered by the Court of Appeal to be of “great value” to the Court, and are often given considerable weight in its judgments, Courts are nonetheless not obliged to give effect to Tribunal findings. The recommendations of the Tribunal have no force in law unless accepted and acted on by a Court.

This distinction was explained by President Cooke in Te Rünanga o Muriwhenua v Attorney-General (1990), who, when discussing the Tribunal’s findings on the nature of customary title, noted:

The crucial point is that the Waitangi Tribunal is not a Court and has no jurisdiction to determine issues of law or fact conclusively. Under s 6 of the 1975 [Treaty of Waitangi] Act it may make findings and recommendations on claims, but these findings and recommendations are not binding on the Crown of their own force. They may have the effect of contributing to the working out of the content of customary or Treaty rights; but if and when such rights are recognised by the law it is not because of the principles relating to the finality of litigation. Thus a Waitangi Tribunal finding might well be accepted by a Court as strong evidence of the extent of customary title; but unless accepted and acted on by a Court it has no effect in law. If accepted and acted on by the Court, it takes effect because the Court is determining the extent of legal rights in applying, for instance, the legal doctrine of customary title. The Court’s decision will operate as judicata, but not the finding of the Tribunal.

Misrepresentation of principles

The questionable validity of the Tribunal's authority to identify principles of the Treaty, and the limited validity of those principles - the latter highlighted by the Tribunal itself and the Court of Appeal (above) - have been completely ignored by successive governments. They have treated the Tribunal's principles to be as authoritative as the findings of the courts and used them both as the basis for policy decisions and documents. That even extends to the Cabinet which mistakenly pays high regard to the conclusions of the Tribunal when it is forming policy.

See for example the Cabinet Office Te Tiriti o Waitangi / Treaty of Waitangi Guidance where Rule 4 states that "the courts and Waitangi Tribunal have developed a considerable body of Treaty jurisprudence".

Rule 16 states:

"The Waitangi Tribunal plays an important role in providing advice to government on the application of Treaty principles in relation to acts or omissions of the Crown which Māori allege breach the principles of the Treaty."

As a result, the establishment in general has freely adopted the principles as defined by the Tribunal as being binding in law. Consequently, such baseless slogans as "co-governance", and "partnership" have emerged and have become battle-cries for those seeking greater power for Maori.

The Tribunal's views on what constitute the principles of the Treaty are not shown here. They only have relevance to formal Treaty claims under the Act, are recommendations only, and have no relevance to the law of New Zealand.

Defective version of te Tiriti

As an interesting footnote:

The original version of the Treaty of Waitangi Act, as enacted in 1975, included a defective version of the Maori version of the Treaty in the First Schedule. There were several fundamental omissions in Article 2. It remained in that defective format until 1985. That means that all the recommendations of the Tribunal during that period were based on a consideration of the principles of the Treaty, which were based on the only official version of the Treaty (in the Act) which was incorrectly worded.

Further details at: https://thetreatyfacts.blogspot.com/p/treaty-of-waitangi-acts-fundamental-flaw.html

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