It is accepted by the courts of New Zealand that the Treaty and its Articles are not part of New Zealand law. (See the post: The Treaty Articles are not binding in New Zealand law.) The obligations arising from the Treaty and its Articles are not imbedded in any legislation in New Zealand, therefore they cannot be enforced in the courts of law.
This has probably come about because of the fundamental differences in the texts of the English and Maori versions of the Treaty, and the even greater differences in the interpretation of the Articles. Legislation is required to be clear, unambiguous and easily understood. An obligation to comply with Treaty Articles included in two versions in different languages that have fundamental differences would not make good law.
Imbedding the principles of the Treaty in New Zealand law
There are two types of Treaty clauses. There is the operative/general form – which requires those exercising functions or making decisions under an Act to consider or act in accordance with the Treaty principles, for example: “In achieving the purpose of this Act, all persons exercising functions and powers under it shall take into account the principles of the Treaty of Waitangi".
Many years ago Sir Sir Geoffrey Palmer criticised the former version of the clause as being far too general. He commented:
This problem has led to calls for Parliament to be explicit in working out in precise terms how it wants to protect Maori interests in legislative schemes rather than using a general formula similar to section 9 (in the SOE Act). There are some notable statutes where that was done: the Resource Management Act 1991, the New Zealand Public Health and Disability Act 2000 and the Local Government Act 2002.
Prior to 1985
Waitangi Tribunal
The Treaty of Waitangi Act 1975 created the Waitangi Tribunal and a claims process which enabled Maori (but no others) to make a claim against the Crown (but no others) if they had been prejudiced by a breach of the "principles of the Treaty". Those principles were not defined in the Treaty, in the Act, or anywhere else. Whilst the Tribunal was authorised to inquire into claims and and make recommendations on acts of the Crown that were inconsistent with the principles of the Treaty, it was not authorised in the Act to define what those principles were. Despite that, the Tribunal has assumed the power to define the principles since 1975 to the present day. There has not been a single objection to its ultra vires actions.
Any conclusions of the Tribunal on what constitute the principles of the Treaty, and whether the Crown acted inconsistently with those principles, are, according to the Act, only recommendations to the government. They are not binding on the government, or on Parliament. As the Tribunal is only a commission of inquiry, not a court of law, with informal rules of procedure, its findings are not binding on the courts, or in law generally.
Unfortunately, the findings of the Tribunal have been treated by the courts as persuasive, if not binding, and have been adopted by the current Labour government as part of the jurisprudence of the principles of the Treaty.
See: https://thetreatyfacts.blogspot.com/p/the-treaty-of-waitangi-act-1975.html
The Treaty itself was signed by the Crown and Maori chiefs. However, the concept of the principles of the Treaty has been extended, by the Act, to individual Maori who were not party to the Treaty, and, informally, to any individual or group that has decided to adopt the principles as a sort of basis for ethical conduct.
Labour government 1989
- The Kawanatanga Principle recognises the right of the Government to govern and to make laws.
- The Rangatiratanga Principle recognises the right of iwi to organise as iwi and, under law, to control the resources they own.
- The Principle of Equality recognises that all New Zealanders are equal before the law.
- The Principle of Reasonable Co-operation recognises that both government and iwi are obliged to accord each other reasonable co-operation on major issues of common concern.
- The Principle of Redress acknowledges that the Government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur
These principles were intended as guidance only and are not binding in law.
The courts' definitions of the principles of the Treaty
In reading what follows the reader should bear in mind the comments in the post The questionable role of the courts in defining the principles of the Treaty.
In cases that came before the courts involving legislation that included a Treaty clause, the courts took the view that they were being given a carte blanche by parliament to decide on what constituted the principles of the Treaty.
The courts definitions of the principles of the Treaty
The principles of the Treaty as decided by the courts are listed by the Ministry of Maori Development: He Tirohanga o Kawa ke te Tiriti o Waitangi.pdf
- The duty to act reasonably, honourably, and in good faith
- The duty to make informed decisions
- The principle of active protection
- The principle of redress
Considerations
Before reading the commentary on these principles I would like to make the following points:
- These are what are considered by the Ministry of Maori development to be the principles of the Treaty as established by the courts.
- They are set out at length because they include a detailed summary of the case law on the matter.
- I have not included any of the principles as defined by the Waitangi Tribunal because they are not binding in law and therefore only relevant when making recommendations on claims to the Tribunal. However, it should be noted that the courts gave considerable weight to the conclusions of the Waitangi Tribunal when they defined the principles.
- There is no principle that an equal partnership amounting to co-governance was established between the Crown and Maori chiefs. Although the courts employed misleading words at time, it is absolutely clear that the courts acknowledged that the Crown became sovereign in 1840 and a partnership was not possible.
- The interpretation of tino rangatiratanga and kawanatanga adopted by the Waitangi Tribunal and the courts has created some difficulties. However, the fact that the Crown acquired sovereignty in 1840 one way or another resolves most of those issues in Article 1. The Crown is indisputably sovereign. As Cooke P put it in the Lands case: "In brief the basic terms of the bargain were that the Queen was to govern and the Maoris were to be her subjects."
- The Crown’s and Tribunals interpretation of taonga has caused ongoing issues. Rather than treating Article 2 as guaranteeing rights in respect of land, dwellings and personal property (taonga), taonga has been given the meaning of "treasures" by the courts. This has given rise to an endless list of treasures not contemplated in 1840 which have been the source of many Treaty claims and court cases Not only that, the Crown’s guarantee in respect of the land and possessions has been extended to embrace the Maori people as well. As a result the courts have decided that there is an ongoing relationship between the Crown and Maori in respect of land and possessions listed under Article 2. The principles of the Treaty apply strictly to this relationship.
There is an awful lot written about the principles of the Treaty in the following pages. They are rather overwhelming and one gets the impression that they dictate almost every aspect of life in New Zealand. But there are some important facts that we need to have foremost in our minds:
The principles are only binding in law if they are included in a Treaty clause in relevant legislation. Parliament decides if a Treaty clause is to be included in legislation. Treaty clauses are generally only included in legislation dealing with Crown assets.
- The Crown is only bound by a principle of the Treaty if it is included in a Treaty clause in the legislation relating to the alleged breach of the principle.
- Otherwise the principles of the Treaty create no legal obligations on the Crown or anyone else and are are not legally enforceable in New Zealand.
- There is no general obligation in law for the Crown or any other body or any individual to comply with a principle of the Treaty.
This commentary is taken verbatim from the Ministry of Maori Development's Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal. However I have not included the decisions of he Waitangi Tribunal as they are not binding in law.
The commentary contains several references to a partnership between the Treaty parties. The courts have held that the relationship between the parties has the qualities of a partnership such as honest and good faith etc. However, the relationship only exists in respect of the Crown's guarantee under Article 2 - to protect Maori property and taonga. Remember that sovereignty was ceded to the Crown in Article 1. That gave it absolute power to rule. Article 3 gave Maori the equal (not superior) rights of British citizenship, with the proviso that there was a Crown guarantee in respect of Maori lands and taonga.
The following is taken verbatim from the report.
The duty to act reasonably, honourably, and in good faith (Page 77)The Court of Appeal has discussed partnership at length, including the rights and obligations flowing from it, but as with other Treaty principles, no exhaustive definition of this principle has been attempted. The Court has commented that the Treaty established a relationship akin to a partnership, which imposes on the partners the duty to act reasonably, honourably, and in good faith.
In the Lands case (1987), the Court of Appeal unanimously held that:
The Treaty signified a partnership between races, and it is in this concept that the answer to the present case has to be found … In this context the issue becomes what steps should have been taken by the Crown, as a partner acting towards the Mäori partner with the utmost good faith which is the characteristic obligation of partnership …
In Te Rünanga o Wharekauri Rekohu v Attorney-General (1993) the then President of the Court of Appeal, Cooke, summarised the views of the judges in the Lands case in respect of partnership:
It was held unanimously by a Court of five judges, each delivering a separate judgment, that the Treaty created an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably, and honourably towards the other. The words of the reasons for the judgment of the five judges differed only slightly; the foregoing is a summary of their collective tenor.
The Court has drawn on principles of good faith inherent in partnerships in civil law to aid its interpretation of Treaty principles. In the Lands case (1987), Justice Somers observed that: “Each party in my view owed to the other a duty of good faith. It is the kind of duty which in civil law partners owe to each other”. It is important to note, however, that the Court of Appeal did not perceive partnership to mean “equal shares” between the partners nor was the analogy intended to import the law applying to business partnerships.
In the Forests case (1989), the Court of Appeal commented that: “Each party in my view owed to the other a duty of good faith. It is the kind of duty which in civil law partners owe to each other”. It is important to note, however, that the Court of Appeal did not perceive partnership to mean “equal shares” between the partners nor was the analogy intended to import the law applying to business partnerships.
In the Forests case (1989), the Court of Appeal commented that:
Partnership certainly does not mean that every asset or resource in which Mäori have some justifiable claim to share must be divided equally. There may be national assets or resources as regards which, even if Mäori have some fair claim, other initiatives have still the greater contribution.
The then President of the Court, Cooke, explains elsewhere that the judges did not apply the term partnership in the sense of the parties “embarking on a business in common with a view to profit” but rather recognised that ‘shares’ in partnerships vary, as they do in many legal practices. The Court found the analogy of partnership useful “because of the connotation of a continuing relationship between parties working together and owing each other duties of reasonable conduct and good faith”.
In the Lands case (1987), President Cooke described the duty to act reasonably, honourably, and in good faith as “infinitely more than a formality”. He explained that the term “reasonably” was used in the sense of what any reasonable person would decide in such circumstances, that is:
… in the ordinary sense of, in accordance with or within the limits of reason. The distinction between on the one hand what a reasonable person could do or decide, and on the other hand what would be irrational or capricious or misdirected.
He further observed that Treaty principles impose a requirement for reasonable cooperation on both Treaty partners.
In the Coal case (1989), President Cooke commented that the principles of the Treaty require the partners to make a genuine effort to work out agreements over issues arising between them, and that “judicial resolution should be very much a last resort”. Similarly, 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 Privy Council, in considering the Broadcasting Assets case (1994) agreed with the Court of Appeal that the relationship envisaged in the Treaty was one “founded on reasonableness, mutual cooperation and trust.” The nature of this relationship requires the Crown in carrying out its Treaty obligations to take “such action as is reasonable in prevailing circumstances”. The Court of Appeal further asserted in the Mäori Electoral Option case (1995) “that the test is reasonableness, not perfection”.
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.
The duty to make informed decisions (Page 85)
The Courts have found that it is inherent in the Crown’s obligation to act in good faith that it is obliged to make informed decisions on matters affecting the interests of Mäori. This obligation will in some circumstances require the Crown to consult with Mäori, depending on the importance of the issue in question. The duty to make informed decisions is a legal obligation on the Crown, where the Crown is exercising a discretion under legislation containing an appropriately worded Treaty clause. In the Lands case (1987), Justice Richardson observed that:
The responsibility of one Treaty partner to act in good faith fairly and reasonably towards the other puts the onus on a partner, here the Crown, when acting within its sphere to make an informed decision, that is a decision where it is sufficiently informed as to the relevant facts and law to be able to say it had proper regard to the impact of the principles of the Treaty.
The onus on the Crown to be sufficiently informed in its decision making on matters affecting its Treaty partner does not, however, extend to an absolute duty to consult. Justice Richardson earlier observed that:
What is involved in the application of that fundamental good faith principle of the Treaty must depend upon the circumstances of the case … In truth the notion of an absolute open-ended and formless duty to consult is incapable of practical fulfilment and cannot be regarded as implicit in the Treaty.
President Cooke added that the duty to consult:
… in any detailed or unqualified sense is elusive and unworkable. Exactly who should be consulted before any particular legislative or administrative step which might affect some Mäoris, it would be difficult or impossible to lay down. Moreover, wide-ranging consultations could hold up the processes of Government in a way contrary to the principles of the Treaty.
While the Court of Appeal did not regard the duty to consult as an absolute duty, it nonetheless recognised that it is an obvious way for the Crown to demonstrate good faith as a Treaty partner. Justice Somers observed in the same case that “while each side is entitled to the fullest good faith by the other I would not go so far as to hold that each must consult with the other. Good faith does not require consultation although it is an obvious way of demonstrating its existence”. The Court recognised that in some cases the fulfilment of the obligation of good faith may require extensive consultation, in others the Crown may argue that it is already in possession of sufficient information “for it to act consistently with the principles of the Treaty without any specific consultation”. In a later case, the Environment Court noted that: “The question of consultation is to be approached in a holistic manner, not as an end to itself, but in order to take the relevant Treaty principles into account”.
Good faith implies, however, that sometimes the importance of the issue at stake will mean that the Crown cannot be regarded as sufficiently informed in the absence of consultation. In the Forests case (1989), the Court of Appeal observed: “We think it right to say that the good faith owed to each other by the parties to the Treaty must extend to consultation on truly major issues. That is really clearly beyond argument”.
Regarding Crown commercial forestry assets, the Court ruled that it would be “inconsistent with the principles [of the Treaty] to reach a decision as to whether there should be a sale without consultation”. The Court further observed that where consultation is required, presenting Mäori with a fait accompli, that is, a proposal that has already been decided that you cannot correct, “assuredly would not represent the spirit of partnership which is at the heart of the principles of the Treaty of Waitangi referred to in s9 of the State-Owned Enterprises Act.
A 1993 Court of Appeal case, Wellington International Airport Ltd v Air New Zealand, gives some direction as to the required attributes of a valid consultation exercise, although this case was not related to Treaty principles. Discussing a statutory requirement on the Wellington International Airport Authority to consult with airlines and airport users on the setting of landing fees, the Courts of Appeal held that:
The word “consultation” did not require that there be agreement as to the (fees) nor did it necessarily involve negotiations towards an agreement, although this might occur particularly as the tendency in consultation was at least to seek consensus. It clearly required more than mere prior notification. If a party having the power to make a decision after consultation held meetings with the parties it was required to consult, provided those parties with relevant information and with such further information as they requested, entered the meetings with an open mind, took due notice of what was said and waited until they had had their say before making a decision: then the decision was properly described as having been made after consultation.
In other areas not directly related to the Treaty, the Courts have further elaborated their understanding of the attributes of genuine consultation. They have stated that consultation does not mean agreement nor necessarily negotiation and is meaningful when parties are provided with sufficient information to enable them to make “intelligent and useful responses” and is undertaken with an open mind.
Where the Crown is to give effect to the principles of the Treaty under relevant legislation, the Court has found that consultation alone cannot satisfy its obligation to actively protect the interests of Mäori. In Whales (1995), concerning the application of section four of the Conservation Act 1987,374 the Court held that it is not permissible for the Crown to try to limit the principles of the Treaty to mere consultation, when its obligation included the principle of active protection. President Cooke stated:
“Since the Lands case … it has been established that the principles [of the Treaty] require active protection of Mäori interests. To restrict this to consultation would be hollow”.
Regarding the quality of the consultation conducted, President Cooke held that “an empty obligation to consult” by the Crown is unacceptable. President Cooke considered, in this case, that the Crown’s approach lacked “any recognition of the value to Ngäi Tahu of the right to be consulted” and reflected “an absence and even a repudiation of any suggestion that Ngäi Tahu’s representations could materially affect the decision”.
The Court also rejected the proposition that Ngäi Tahu had a veto over the allocation of new whale-watching permits under the Marine Mammals Protection Regulations 1992.376 In a later case, Watercare Services v Minhinnick (1998), the Court of Appeal held that:s 8 [of the Resource Management Act 1991] in its reference to the principles of the Treaty did not give any individual the right to veto any proposal ... It is an argument which serves only to reduce the effectiveness of the principles of the Treaty rather than to enhance them.
The Environment Court has produced a significant volume of findings on the obligations to Mäori of local government (not considered to be “the Crown”) and has placed emphasis on a duty to consult as an aspect of section eight of the Resource Management Act 1991 (the RMA).
The Environment Court has confirmed that the duty to consult entails a decision maker being fully informed. Where this standard has been met, the decision maker’s decision has been supported by the Court as an appropriate exercise of their role. In other cases, such as Te Rünanga o Tauramere v Northland Regional Council (1996), consultation with Mäori did not reach the standard required by section eight. In this case, the Environment Court (the then Planning Tribunal) identified a principle of consultation and held that: “[Treaty principles] … deserve more than lip-service but are intended by Parliament to affect the outcome of resource management in appropriate cases”.
The Environment Court has rejected the proposition that the duty to consult under section eight of the RMA “is no more than procedural or deliberative”. In Hanton v Auckland City Council (1994), the Environment Court considered that a consent authority was not obliged to consult tangata whenua when processing a resource consent application. The Court noted in its discussion that: “Because of its place in Part II of the Act, and because of its subject matter, section [eight] is an important provision, to be given fair, large and liberal construction, and not read down”, and that: “Consent authorities receiving and processing resource consent applications ... are bound to take into account the principles of the Treaty”.
The Court found, however, that where the consent authority is not the Crown, section eight does not include “any imposition on consent authorities of the obligations of the Crown under the Treaty or its principles”.
The Environment Court has found that in respect of consultation, a shared duty exists. In Rural Management Limited v Banks Peninsula District Council (1994), the Court noted that “the Treaty of Waitangi requires a partnership between the peoples of New Zealand. The highest Courts of the lands have held that this partnership requires consultancy between Mäori and European”. The Court went on to explain that:
... consultancy is a two-way process, particularly within the partnership concept. If one party is actively facilitating a consultative process and the other party chooses to withdraw as happened in the present case then the party who chooses to with[1]draw without giving any reasons for that withdrawal cannot, in our opinion, be later heard to complain that the principles of the Treaty have been infringed.
In Ngäti Kahu v Tauranga District Council (1994), the Environment Court found that consultation need not result in consensus:The council is not bound to consult [local hapu] for however long it takes to reach a consensus. It must consult for a reasonable time in a spirit of goodwill and open-mindedness, so that all reasonable (as distinct from fanciful) planning options are carefully considered and explored. If after this process the parties are in a position of ultimate disagreement, this must be accepted as the outcome. If consensus is reached, the council can provide no guarantee of inalterability.
The principle of active protection (Page 93)
The Crown’s duty of active protection is a central Treaty principle, which was first raised by the Waitangi Tribunal in its early reports, and affirmed by the Court of Appeal in 1987, in the Lands case. The Tribunal further elaborated the principle in its post-1987 reports. The principle encompasses the Crown’s obligation to take positive steps to ensure that Mäori interests are protected. The Courts have considered the principle primarily in association with the property interests guaranteed to Mäori in Article II of the Treaty. The Waitangi Tribunal has also emphasized the Crown’s stated aims in the preamble of the Treaty and in Article III.
The Preamble records the Queen’s desire to “protect the chiefs and subtribes of New Zealand” (in the English translation of the Mäori text) and to “protect [tribal] just rights and property and to secure to them the enjoyment of Peace and Good Order” (in the English text). By Article III of the English text, the Queen extends her “royal protection to the Natives of New Zealand”, and in the translation of the Mäori text, the Queen promises to “protect all the ordinary people of New Zealand”. The Tribunal has elaborated the principle of protection as part of its understanding of the exchange of sovereignty for the protection of rangatiratanga, and has explicitly referred to the Crown’s obligation to protect Mäori capacity to retain tribal authority over tribal affairs, and to live according to their cultural preferences. Later Tribunal reports also place emphasis on the Crown’s duty to protect Mäori as a people, and as individuals, in addition to protecting their property and culture.
In the Lands case (1987), the Court of Appeal accepted earlier Tribunal findings that the Crown had a positive duty to protect Mäori property interests, saying that:
... the duty of the Crown is not merely passive but extends to active protection of Mäori people in the use of their lands and waters to the fullest extent practicable. There are passages in the Waitangi Tribunal’s Te Atiawa, Manukau and Te Reo Mäori reports that support that proposition and are undoubtedly well founded.
The Crown’s duty to actively protect te reo Mäori as a taonga was discussed by Justice Hardie Boys of the Court of Appeal in the Broadcasting case (1992):
It was not disputed either that the prime objective of the Treaty was to ensure a proper place in the land for the two peoples on whose behalf it was signed. Nothing could be further from that objective than the obliteration of the culture of one of them or its absorption into that of the other. Thus protection of the Mäori language, an essential element of Mäori culture, was and is a fundamental Treaty commitment on the part of the Crown.
In the subsequent appeal to the Privy Council, the duty of active protection was further elaborated.
The Broadcasting Assets case (1994) contains an important and detailed analysis of the scope of the Crown’s duty of active protection under the Treaty. The Council advised that the Crown’s duty was not an absolute one, but was an obligation which could change in accordance with the extent of the Crown’s other responsibilities and the vulnerability of the taonga in question. The Council also referred to the need for Mäori to take steps to ensure the survival of the language in partnership with the Crown: “Under the Treaty the obligation is shared. Mäori are also required to take reasonable action, in particular action in the home, for the language’s preservation”. The Council linked the duty to actively protect Mäori interests with the concept of reasonableness:
Foremost among [Treaty] “principles” are the obligations which the Crown undertook of protecting and preserving Mäori property, including the Mäori language as part of taonga, in return for being recognised as the legitimate government of the whole nation by Mäori … It does not however mean that the obligation is unqualified. This would be inconsistent with the Crown’s other responsibilities as the government of New Zealand and the relationship between Mäori and the Crown. The relationship the Treaty envisages should be founded on reasonableness, mutual cooperation and trust. It is therefore accepted by both parties that that the Crown in carrying out its obligations is not required in protecting taonga to go beyond taking such action as is reasonable in the prevailing circumstances. While the obligation of the Crown is constant, the protective steps which it is reasonable for the Crown to take change depending on the situation which exists at any particular time. For example in times of recession the Crown may be regarded as acting reasonably in not becoming involved in heavy expenditure in order to fulfil its obligations although this would not be accept[1]able at a time when the economy was buoyant.
The Privy Council noted that the duty of active protection requires vigorous action where a taonga is threatened, especially where its vulnerability can be traced to earlier breaches of the Treaty:
… if as is the case with the Mäori language at the present time, a taonga is in a vulnerable state, this has to be taken into account by the Crown in deciding the action it should take to fulfil its obligations. This may well require the Crown to take especially vigorous action for its protection. This may arise, for example, if the vulnerable state can be attributed to past breaches of the Crown of its obligations, and may extend to the situation where those breaches are due to legislative action.
In the Whales case (1995), the Court of Appeal considered that where the Crown is directed to give effect to Treaty principles, this included the duty of active protection, and the duty could not be limited to consultation or mere matters of procedure.
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.
The principle of redress (Page 100)
The Courts The Court of Appeal has acknowledged that it is a principle of partnership generally, and of the Treaty relationship in particular, that past wrongs give rise to a right of redress. This acknowledgment is in keeping with the fiduciary obligations inherent in the Treaty partnership. In the Lands case (1987), President Cooke accepted that the Treaty gave rise to an obligation on the Crown to remedy past breaches. He further observed that:
… if the Waitangi Tribunal finds merit in a claim and recommends redress, the Crown should grant at least some form of redress, unless there are grounds justifying a reasonable Treaty partner in withholding it – which would be only in very special circumstances, if ever. As mentioned earlier, I prefer to keep open the question whether the Crown ought ordinarily to grant any precise form of redress that may be indicated by the Tribunal.
Justice Somers, in the same case, considered that where breaches of the Treaty had occurred, then a fair and reasonable recognition of and recompense for the wrongdoing was required:
The obligations of the parties to the Treaty to comply with its terms is implicit, just as the obligations of parties to a contract to keep their promises. So is the right of redress for a breach which may fairly be described as a principle, and was in my view intended by Parliament to be embraced by the terms it used in s 9 [of the State-Owned Enterprises Act 1986]. As in the law of partnership a breach by one party of his duty to the other gives rise to a right of redress so I think a breach of the terms of the Treaty by one of its parties gives rise to a right of redress by the other – a fair and reasonable recognition of, and recompense for, the wrong that has occurred. That right is not justiciable ie in the Courts but the claim to it can be submitted to the Waitangi Tribunal.
Justice Richardson, in the same case, considered that the Crown has a responsibility to take positive steps to remedy Treaty grievances, recognising the significance of land to Mäori people:
… the protection accorded to land rights is a positive “guarantee” on the part of the Crown. This means that where grievances are established, the State for its part is required to take positive steps in reparation … [recognising] that [for Mäori] possession of land and the rights to land are not measured sim[1]ply in terms of economic utility and immediately commercial values.
Justice Bisson likewise noted that in some cases monetary compensation will not satisfy the Crown’s Treaty obligation to remedy breaches of the Treaty, suggesting that other forms of redress may be required:
Regard must be had for the special relationship of the Mäori people to their land, so that compensation in money terms is not a satisfactory recompense in the case of some grievances.
In this case the Court ruled that the Crown was obliged to ensure that in the transfer of lands from Crown control to state-owned enterprises, the Mäori partner’s right of redress was not prejudiced.In the Coal case (1989) President Cooke emphasized the Crown’s duty to fully honour its Treaty obligation to remedy past breaches and not to foreclose in advance available means of redress without the agreement of its Treaty partner. He states:
It is obvious that, from the point of view of the future of our country, non-Mäori have to adjust to an understanding that does not come easily to all: reparation has to be made to the Mäori people for past and continuing breaches of the Treaty by which they agreed to yield government. Lip service disclaimers of racial prejudice and token acknowledgements that the Treaty has not been honoured cannot be enough. An obligation has to be seen to be honoured ... What is clear in my opinion is that any attempt to shut out in advance any Tainui claim to be awarded some interest in the coal and surplus lands in issue in this case is not consistent with the Treaty. Unchallenged violations of the principles of the Treaty cannot be ignored. Available means of redress cannot be foreclosed without agreement.
President Cooke, in a later case, summarised the view of the Court of Appeal on the Crown’s obligation to redress past breaches. In the Broadcasting case (1992) he commented:
It was recognised by this court in New Zealand Mäori Council v Attorney-General (1987) 1 NZLR 641 (the Lands case) that Treaty principles extend to requiring active and positive steps to redress past breaches.
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 39.443
In the Radio NZ case (1996), concerning the Crown’s action in selling commercial radio to private enterprise, the Court of Appeal considered the Crown’s fiduciary duties arising from the relationship established in the Treaty and the implications for redress. The Court considered that the obligation to act reasonably and in good faith....
… cannot be divorced from past breaches [and] … on the basis of established [legal] authority, therefore, it is open to Mäori to argue that any such breaches, whether historical or recent, require affirmative action to be redressed. The fact that a sale of commercial radio may have been completed does not mean that Mäori are without a remedy. Nor does it mean that the Crown has met the standard required pursuant to its fiduciary obligations, or that Mäori may not have a real interest in establishing the Crown’s default.
Remember
These principles are only binding on the Crown only if there is a Treaty clause in legislation requiring the Crown to comply with the principles of the Treaty either generally of specifically.
Otherwise the principles are not binding in law.
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