Treaty of Waitangi
The Treaty of Waitangi was signed in February 1840 by (eventually) over 500 Maori rangatira (chiefs) and by Captain Hobson as British Consul on behalf of the British Crown.
New Zealand did not exist as a sovereign state prior to the agreement being signed. Following the signing of the Treaty New Zealand became part of the colony of New South Wales and therefore part of the British Empire.
The British Crown was therefore responsible for any obligations under the Treaty.
Assertions of sovereignty by the
British Crown
In May 1840 Captain Hobson asserted sovereignty on behalf of the British Crown over the whole of New Zealand which resulted in New Zealand becoming part of the colony of New South Wales. A few months later Captain Hobson again asserted British sovereignty over New Zealand, this time as a colony of Britain in its own right.
Both of these assertions of sovereignty by the British Crown have been accepted as being binding in law. The new colony of New Zealand became part of the British Empire.
Note: These assertions of sovereignty by the British Crown have either been overlooked or ignored over the succeeding years, presumably because they are inconvenient truths. Modern legal opinion suggests that the subsequent assertions of sovereignty by the British Crown rendered the Treaty, and its obligations, a nullity in law.
See: https://thetreatyfacts.blogspot.com/p/hobsons-assertions-of-sovereignty.html
New Zealand
becomes an independent state
In 1931, the British Parliament passed the Statute of Westminster, which effectively placed the self-governing Dominions (e.g. Canada, Australia, New Zealand etc) on the same constitutional footing as the United Kingdom. From that point on, the British Parliament could only legislate for those countries if invited to do so by the Dominions themselves. It also meant that the Crowns in each of the Dominions became legally distinct entities. In other words New Zealand’s new ruler was the New Zealand Crown as a separate legal entity to the British Crown, even though they were embodied in the same Monarch.
The New Zealand government took no action to adopt the Treaty obligations under the Treaty or to incorporate them into New Zealand law.
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 [New Zealand] law.
This was
confirmed in a High Court case in 1962.
At that stage Maori had no claim in law for Treaty breaches because the Treaty was not part of New Zealand law. In addition, the legal status of the Treaty was not clear given that it was superseded by two unconditional assertions of sovereignty that contained no obligations on the British Crown.
Waitangi Tribunal 1975
In 1975 the Treaty of Waitangi Act set up the Waitangi Tribunal to inquire into and make recommendations upon Maori claims against the New Zealand Crown for actions inconsistent with the “principles of the Treaty of Waitangi”.
This was landmark legislation in that the New Zealand Crown for the first time accepted responsibility for breaches of Treaty obligations going back to 1840 (under subsequent amending legislation).
It was a bizarre piece of legislation as the Tribunal is not a court of law, does not follow the normal rules of evidence of a court, and its decisions and recommendation are not binding on itself, on the courts, on the government, or in law. It has a narrow jurisdiction outside the law as a commission of inquiry with its own limited terms of reference.
The most important feature of the Act was that it did not make the New Zealand Crown responsible for the obligations under the Treaty and it Articles but for breaches of a totally new concept, the “principles of the Treaty of Waitangi”. The principles are a complete fiction and did not exist in the Treaty or anywhere else in 1975. The expression had no meaning.
It seems that the Third Labour government realised that it would be impossible to require compliance with the actual terms of the Treaty and its Articles when there were so many fundamental differences between the Maori and the English versions.
The government was probably also aware that the Treaty and its Articles had been superseded in law by the subsequent assertion of sovereignty by the British Crown. Both of those assertions of sovereignty were unconditional with no obligations on the Crown.
It is likely that the “principles of the Treaty” was a means of conveying the essential understandings of the Treaty that were not binding in law but were binding in “honour”. It was therefore appropriate that the Crown’s liability for breaching obligations of honour should be resolved by an informal body acting outside the parameters of the law.
Treaty clauses
These arose because of the pressure on the government to provide an avenue for pursuing breaches of the Treaty by the New Zealand Crown through the courts. The Fourth Labour government responded by including Treaty clauses in legislation that affected state entities that owned assets that could be the subject of Maori challenge under the Treaty. The first Treaty clause was included in the State-Owned Enterprises Act 1986. Section 9 states:
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 Crown referred to was the New Zealand Crown - now known as the Sovereign in Right of New Zealand. Rather than making the Crown liable for breaches of the Treaty and its Articles, the government stole the wording and concepts from the Treaty of Waitangi Act. The Crown became responsible for acts that were inconsistent with the “principles of the Treaty”.
The wording of this Treaty clause, and the many others that followed, is open to many objections from the point of view of drafting and the requirements of “good law”.
Somewhat surprisingly the courts ignored the blatant shortcomings of the legislation and accepted the invitation in the Lands case to define the “principles of the Treaty” and to rule on what constituted breaches of those principles. In subsequent cases the courts have established a whole set of “principles of the Treaty” which have become binding in law, as precedents of the Court of Appeal, even though they were not part of the Treaty.
The courts have also made it clear that any principles of the Treaty established by the Waitangi Tribunal may be helpful but they are only recommendations to the government within the Waitangi Tribunal framework, and are not binding in law.
Current legal situation
- As it stands at present, the actual Treaty and its Articles are not binding in New Zealand law because the obligations in the actual Treaty have not been incorporated into New Zealand statute law.
- The “principles of the Treaty” as defined by the Waitangi Tribunal are not binding in law in any way.
- The “principles of the Treaty” as defined by the courts, following consideration of Treaty clauses, are binding in law but only on the Crown.
Current issues
There has to be considerable concern that the current Labour government has used the Treaty clause device as a means of:
- Imposing obligations on Crown entities that go way beyond any obligations found in the Treaty. https://thetreatyfacts.blogspot.com/p/ministry-of-health.html
- Imposing obligations arising from so-called Treaty principles on people, organisations etc that are not linked to the Treaty in any way.
- Imposing obligations arising from so-called principles of the Treaty that are fundamentally racist in nature.
https://thetreatyfacts.blogspot.com/p/the-2023-census-racist-document.html
