Principles of the Treaty of Waitangi

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Depiction of the signing of the treaty on 6 February 1840 Reconstruction of the Signing of the Treaty of Waitangi, Marcus King (16044258961).jpg
Depiction of the signing of the treaty on 6 February 1840

In New Zealand law and politics, the principles of the Treaty of Waitangi (Māori : ngā mātāpono o te tiriti) is a phrase used in the Treaty of Waitangi Act 1975. It is a set of principles derived from, and interpreting, the Treaty of Waitangi. These principles were codified in 1987, partly an attempt to reconcile the different Māori and English language versions of the treaty, and allow the application of the treaty to a contemporary context. [1]

Contents

The principles of the treaty are often mentioned in contemporary New Zealand politics. [2]

The Treaty of Waitangi Act 1975

The Treaty of Waitangi Act 1975 introduced the phrase principles of the Treaty of Waitangi. It is found twice in the long title of the Act, in the preamble, and also in Section 6(1) which provides for the Waitangi Tribunal to inquire into claims by Maori that they are prejudicially affected by Crown acts (or omissions) that are inconsistent with the principles of the Treaty of Waitangi. [3]

The long title to the Treaty of Waitangi Act 1975 summarises the Act as follows:

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. [4]

Need for treaty principles

Hayward (2012) notes that it may better to apply the intentions or principles of the treaty as the treaty text itself is not law. Reasons given are that the English and Māori language versions "do not have exactly the same meaning", and the 1840 treaty "focuses on the issues relevant at the time it was signed". Instead, the Treaty of Waitangi Act 1975 provides for the intentions and goals of the treaty to be taken into account through the principles of the Treaty of Waitangi. [5] The Waitangi Tribunal's key function is to evaluate Crown actions against the intentions of the parties that signed the Treaty. The Tribunal also has the specific authority to determine the meaning of the two texts of the Treaty. [6] As Hayward (2004) states:

"The Tribunal's findings ...are expressed in the currency of treaty principles - which principles are applicable to the particular case, and how the Crown breached those principles, if at all". [7]

In order to apply the Treaty of Waitangi in a way that is relevant to the Crown and Māori in the present day, the Waitangi Tribunal and the courts must consider the broad sentiments, the intentions and the goals of the treaty, and then identify the relevant principles of the treaty on a case-by-case basis. [8] Hayward (2004) concludes that: "...each Tribunal is required to determine the principles of each claim on a case by case basis" [7] .

Origins of the principles

The principles originate from New Zealand Maori Council v Attorney-General , [9] a case brought in the High Court by the New Zealand Māori Council in 1987. There was great concern at that time about the ongoing restructuring of the New Zealand economy by the then Fourth Labour Government, specifically the transfer of assets from former government departments to state-owned enterprises. Because the state-owned enterprises were essentially private firms owned by the government, there was an argument that they would prevent assets which had been given by Māori for use by the state from being returned to Māori by the Waitangi Tribunal and through treaty settlements. The Māori Council sought enforcement of section 9 of the State-Owned Enterprises Act 1986 which reads: "Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi". [10]

The Court of Appeal, in a judgment of its then President Sir Robin Cooke, decided upon the following treaty principles:

Fourth Labour Government's principles

In 1989, the Fourth Labour Government adopted the Principles for Crown Action on the Treaty of Waitangi. Therese Crocker has argued that Labour's publication of the principles "comprised one of a number of Crown responses to what is generally known as the 'Maori Renaissance'." [11] Prime Minister David Lange, in an introduction to the document said of the principles that:

They [the principles] are not an attempt to rewrite the Treaty of Waitangi. These Crown principles are to help the Government make decisions about matters related to the Treaty. For instance, when the Government is considering recommendations from the Waitangi Tribunal.
I have said that the Treaty of Waitangi has the potential to be our nation's most powerful unifying symbol. I trust that these principles demonstrate that there is a place for all New Zealanders within the Treaty of Waitangi. [12]

The principles in the 1989 publication are as follow:

The Kawanatanga Principle – The Principle of Government

The first Article of the Treaty gives expression to the right of the Crown to make laws and its obligation to govern in accordance with constitutional process. This sovereignty is qualified by the promise to accord the Maori interests specified in the second Article an appropriate priority. [13]

This principle describes the balance between articles 1 and 2: the exchange of sovereignty by the Māori people for the protection of the Crown. It was emphasised in the context of this principle that "the Government has the right to govern and make laws". [14]

The Rangatiratanga Principle – The Principle of Self Management

The second Article of the Treaty guarantees to iwi Maori the control and enjoyment of those resources and taonga that it is their wish to retain. The preservation of a resource base, restoration of iwi self-management, and the active protection of taonga, both material and cultural, are necessary elements of the Crown's policy of recognising rangatiratanga. [15]

The Government also recognised the Court of Appeal's description of active protection, but identified the key concept of this principle as a right for iwi to organise as iwi and, under the law, to control the resources they own.

The Principle of Equality

The third Article of the Treaty constitutes a guarantee of legal equality between Maori and other citizens of New Zealand. This means that all New Zealand citizens are equal before the law. Furthermore, the common law system is selected by the Treaty as the basis for that equality although human rights accepted under international law are incorporated also.
The third Article also has an important social significance in the implicit assurance that social rights would be enjoyed equally by Maori with all New Zealand citizens of whatever origin. Special measures to attain that equal enjoyment of social benefits are allowed by international law. [16]

The Principle of Cooperation

The Treaty is regarded by the Crown as establishing a fair basis for two peoples in one country. Duality and unity are both significant. Duality implies distinctive cultural development and unity implies common purpose and community. The relationship between community and distinctive development is governed by the requirement of cooperation which is an obligation placed on both parties by the Treaty.
Reasonable cooperation can only take place if there is consultation on major issues of common concern and if good faith, balance, and common sense are shown on all sides. The outcome of reasonable cooperation will be partnership. [17]

The Principle of Redress

The Crown accepts a responsibility to provide a process for the resolution of grievances arising from the Treaty. This process may involve courts, the Waitangi Tribunal, or direct negotiation. The provision of redress, where entitlement is established, must take account of its practical impact and of the need to avoid the creation of fresh injustice. If the Crown demonstrates commitment to this process of redress then it will expect reconciliation to result. [18]

The Principles in legislation

The Treaty of Waitangi principles have been widely incorporated into legislation, thus allowing them to influence New Zealand law. [19] The legislation includes:

By 2021, the Treaty of Waitangi or its principles are referred to in over thirty-five Acts. [20]

Opposition to the Treaty Principles

The "Principles of the Treaty of Waitangi Deletion Bill" was introduced to the New Zealand Parliament in 2005 as a private member's bill by New Zealand First MP Doug Woolerton. "This bill eliminates all references to the expressions 'the principles of the Treaty', 'the principles of the Treaty of Waitangi' and the 'Treaty of Waitangi and its principles' from all New Zealand Statutes including all preambles, interpretations, schedules, regulations and other provisos included in or arising from each and every such Statute". [21]

At the first reading of the bill, New Zealand First leader Winston Peters said:

this is not an attack on the treaty itself, but on the insertion of the term "the principles of the Treaty" into legislation.
...
This bill seeks to do three fundamental things. First, as the bill's title implies, it seeks to remove all references to the undefined and divisive term "the principles of the Treaty of Waitangi" from legislation. Second, it seeks to reverse the insidious culture of division that has grown up around the existence of these principles. It has seen Māori pitted against Māori and non-Māori, seen family members pitted against each other, and gone right to the heart of our social fabric. Finally, the bill aims to put an end to the expensive and never-ending litigious programme that has sprung up around these principles. This programme has diverted hundreds of millions of dollars into dead-end paths and away from the enlightened programmes that are the true pathway to success. [22]

The bill failed to pass its second reading in November 2007. [23]

In a legal analysis of the bill for Chapman Tripp, David Cochrane argued that without the principles it would probably be an "impossible task" for the Waitangi Tribunal to carry out its role. [1]

The ACT party has proposed a referendum on the Principles of the Treaty of Waitangi, something that gained media attention during the 2023 New Zealand general election campaign. [24] [25] [26] [27] [28] There has been opposition to the proposed referendum by those who view it as unnecessary or divisive. [29] [30] [31]

Following the 2023 election and the formation of a National-led coalition government, ACT embarked on a public information campaign in early February 2024 to promote its Treaty Principles bill. This campaign includes the creation of a new website called "treaty.nz," which has a Questions and Answers section outlining the party's approach to the principles of the Treaty of Waitangi and a video featuring Seymour. Seymour also contested claims that the opposition was trying to rewrite or abolish the Treaty of Waitangi. The public information campaign also came after a leaked Justice Ministry memo claimed that the proposed bill clashed with the text of the Treaty. [32]

See also

Related Research Articles

<span class="mw-page-title-main">Treaty of Waitangi</span> 1840 treaty between British Crown and people of New Zealand

The Treaty of Waitangi, sometimes referred to as Te Tiriti, is a document of central importance to the history of New Zealand, its constitution, and its national mythos. It has played a major role in the treatment of the Māori people in New Zealand by successive governments and the wider population, something that has been especially prominent from the late 20th century. The treaty document is an agreement, not a treaty as recognised in international law, and has no independent legal status, being legally effective only to the extent it is recognised in various statutes. It was first signed on 6 February 1840 by Captain William Hobson as consul for the British Crown and by Māori chiefs from the North Island of New Zealand.

<i>Tino rangatiratanga</i> Māori language term

Tino rangatiratanga is a Māori language term that translates literally to 'highest chieftainship' or 'unqualified chieftainship', but is also translated as "self-determination", "sovereignty" and "absolute sovereignty". The very translation of tino rangatiratanga is important to New Zealand politics, as it is used in the Māori version of the Treaty of Waitangi to express "full exclusive and undisturbed possession" over Māori-owned lands and property, but different translations have drastically different implications for the relationship between the 1840 signatories: the British Crown and the Māori chiefs (rangatira).

Taonga or taoka is a Māori-language word that refers to a treasured possession in Māori culture. It lacks a direct translation into English, making its use in the Treaty of Waitangi significant. The current definition differs from the historical one, noted by Hongi Hika as "property procured by the spear" [one could understand this as war booty or defended property] and is now interpreted to mean a wide range of both tangible and intangible possessions, especially items of historical cultural significance.

<span class="mw-page-title-main">Declaration of the Independence of New Zealand</span> 1835 proclamation of New Zealands sovereignty by a confederation of Māori chiefs

The Declaration of the Independence of New Zealand, signed by a number of Māori chiefs in 1835, proclaimed the sovereign independence of New Zealand prior to the signing of the Treaty of Waitangi in 1840.

<span class="mw-page-title-main">Waitangi Tribunal</span> Permanent commission of inquiry in New Zealand

The Waitangi Tribunal is a New Zealand permanent commission of inquiry established under the Treaty of Waitangi Act 1975. It is charged with investigating and making recommendations on claims brought by Māori relating to actions or omissions of the Crown, in the period largely since 1840, that breach the promises made in the Treaty of Waitangi. The Tribunal is not a court of law; therefore, the Tribunal's recommendations and findings are not binding on the Crown. They are sometimes not acted on, for instance in the foreshore and seabed dispute.

<span class="mw-page-title-main">Ngāpuhi</span> Māori iwi in New Zealand

Ngāpuhi is a Māori iwi associated with the Northland regions of New Zealand centred in the Hokianga, the Bay of Islands, and Whangārei.

<span class="mw-page-title-main">Māori politics</span> Politics of the Māori people

Māori politics is the politics of the Māori people, who were the original inhabitants of New Zealand and who are now the country's largest minority. Before the arrival of Pākehā (Europeans) in New Zealand, Māori society was based largely around tribal units, and chiefs provided political leadership. With the British settlers of the 19th century came a new British-style government. From the outset, Māori sought representation within this government, seeing it as a vital way to promote their people's rights and improve living standards. Modern Māori politics can be seen as a subset of New Zealand politics in general, but has a number of distinguishing features, including advocacy for indigenous rights and Māori sovereignty. Many Māori politicians are members of major, historically European-dominated political parties, while others have formed separate Māori parties. For example, Te Pāti Māori, holding six of seven Māori electorates, is one such party.

<span class="mw-page-title-main">Constitution of New Zealand</span> Uncodified national constitution

The constitution of New Zealand is the sum of laws and principles that determine the political governance of New Zealand. Unlike many other nations, New Zealand has no single constitutional document. It is an uncodified constitution, sometimes referred to as an "unwritten constitution", although the New Zealand constitution is in fact an amalgamation of written and unwritten sources. The Constitution Act 1986 has a central role, alongside a collection of other statutes, orders in Council, letters patent, decisions of the courts, principles of the Treaty of Waitangi, and unwritten traditions and conventions. There is no technical difference between ordinary statutes and law considered "constitutional law"; no law is accorded higher status. In most cases the New Zealand Parliament can perform "constitutional reform" simply by passing acts of Parliament, and thus has the power to change or abolish elements of the constitution. There are some exceptions to this though – the Electoral Act 1993 requires certain provisions can only be amended following a referendum.

Claims and settlements under the Treaty of Waitangi have been a significant feature of New Zealand politics since the Treaty of Waitangi Act 1975 and the Waitangi Tribunal that was established by that act to hear claims. Successive governments have increasingly provided formal legal and political opportunity for Māori to seek redress for what are seen as breaches by the Crown of guarantees set out in the Treaty of Waitangi. While it has resulted in putting to rest a number of significant longstanding grievances, the process has been subject to criticisms including those who believe that the redress is insufficient to compensate for Māori losses. The settlements are typically seen as part of a broader Māori Renaissance.

<span class="mw-page-title-main">United Tribes of New Zealand</span> Māori confederation in northern New Zealand from 1835 to 1840

The United Tribes of New Zealand was a confederation of Māori tribes based in the north of the North Island, existing legally from 1835 to 1840. It received diplomatic recognition from the United Kingdom, which shortly thereafter annexed it under the Treaty of Waitangi, an event that has largely shaped relations between the government of New Zealand and the Māori people since the 1960s.

The Māori protest movement is a broad indigenous rights movement in New Zealand. While there was a range of conflicts between Māori and European immigrants prior to the signing of the Treaty of Waitangi in 1840, the signing provided one reason for protesting. Disagreements in the decades following the signing sometimes included war.

The law of New Zealand uses the English common law system, inherited from being a part of the British Empire.

The New Zealand Māori Council is a body that represents and consults the Māori people of New Zealand. As one of the oldest Māori representative groups, the council exerts pressure on New Zealand governments to protect Treaty of Waitangi rights.

<span class="mw-page-title-main">Judiciary of New Zealand</span> National court system

The judiciary of New Zealand is responsible for the system of courts that interprets and applies the laws of New Zealand. It has four primary functions: to provide a mechanism for dispute resolution; to deliver authoritative rulings on the meaning and application of legislation; to develop case law; and to uphold the rule of law, personal liberty and human rights. The judiciary is supported in its work by an executive department, the Ministry of Justice.

<i>New Zealand Maori Council v Attorney-General</i>

New Zealand Maori Council v Attorney-General, also known as the "Lands" case or "SOE" case, was a seminal New Zealand legal decision marking the beginning of the common law development of the principles of the Treaty of Waitangi.

<span class="mw-page-title-main">National Māori flag</span> Flag representing the Māori people of New Zealand

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Hobson's Pledge is a right-wing lobby group in New Zealand that was formed in late September 2016 to oppose affirmative action for Māori people. It is led by conservative politician Don Brash. The group aims to nullify the partnership between the Crown and Māori, remove the Māori electorates, abolish the Waitangi Tribunal, restrict tribal powers and "remove all references in law and in Government policy to Treaty 'partnership' and 'principles'".

Janine Alyth Deaker Hayward is a New Zealand politics academic. She is currently a full professor at the University of Otago.

Mana motuhake is a phrase in the Māori language that means self determination, with the principle being autonomy and control. It is sometimes translated to the concept of sovereignty.

Co-governance in New Zealand consists of various negotiated arrangements where Māori people and the Crown share decision-making, or Māori exercise a form of self-determination through a devolution of state power. Notable examples include the co-management of natural resources as part of the provision of Māori social services by Māori-focused entities, and statutory Māori representation in local government bodies. In addition Treaty of Waitangi settlements from 2008 often had co-governance agreements where the iwi involved worked with significant rivers, watersheds, coastlines and landmarks.

References

  1. 1 2 Cochrane, David (5 May 2005). "What are the principles of the Treaty of Waitangi? What should the law do about them?". Chapman Tripp. Archived from the original on 6 February 2015. Retrieved 16 February 2015.
  2. He Tirohanga ō Kawa ki te Tiriti o Waitangi: a guide to the principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal (PDF). Te Puni Kokiri. 2001. ISBN   0-478-09193-1. Archived from the original (PDF) on 18 February 2013. Retrieved 12 August 2012.
  3. "Section 6(1) of the Treaty_of_Waitangi_Act_1975".
  4. "Long Title".
  5. Hayward, Janine (16 January 2023). "Story: Principles of the Treaty of Waitangi – ngā mātāpono o te Tiriti o Waitangi". Te Ara – the Encyclopedia of New Zealand . Retrieved 24 November 2023.
  6. Melvin, Geoff (2004). "The Jurisdiction of the Waitangi Tribunal". In Hayward, Janine; Wheen, Nicola (eds.). In The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi. Wellington: Bridget Williams Books. ISBN   1-877242-32-2.
  7. 1 2 Hayward, Janine (2004). "Flowing from the Treaty's words: the principles of the Treaty of Waitangi". In Hayward, Janine; Wheen, Nicola (eds.). In The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi. Wellington: Bridget Williams Books. ISBN   1-877242-32-2.
  8. Hayward, Janine (16 January 2023). "Principles of the Treaty of Waitangi – ngā mātāpono o te Tiriti o Waitangi - What are the treaty principles?". Te Ara – the Encyclopedia of New Zealand . Retrieved 3 March 2024.
  9. New Zealand Māori Council v. Attorney-General [1987] 1 NZLR 641.
  10. "State-Owned Enterprises Act 1986". Parliamentary Counsel Office. Retrieved 12 August 2012.
  11. Crocker, Therese, "Introduction" in Principles of the Treaty for Crown Action, p 5
  12. Principles of the Treaty for Crown Action, p 1
  13. Principles of the Treaty for Crown Action, p 9
  14. Principles of the Treaty for Crown Action, p 7
  15. Principles of the Treaty for Crown Action, p 10
  16. Principles of the Treaty for Crown Action, p 12
  17. Principles of the Treaty for Crown Action, p 14
  18. Principles of the Treaty for Crown Action, p 15
  19. Hickford, Mark (1 January 2015). "Story: Law of the foreshore and seabed". Te Ara – the Encyclopedia of New Zealand . Retrieved 24 November 2023.
  20. Dame Helen Winkelmann (2 December 2020). "Picking up the threads : the story of the common law in Aotearoa New Zealand". Robin Cooke Lecture. Te Herenga Waka–Victoria University of Wellington.
  21. "Doug Woolerton's Principles of the Treaty of Waitangi Deletion Bill". New Zealand First. Archived from the original on 1 July 2007. Retrieved 13 June 2007.
  22. "Principles of the Treaty of Waitangi Deletion Bill – First Reading". New Zealand Parliament. Retrieved 6 February 2015.
  23. "New Zealand Parliament – Principles of the Treaty of Waitangi Deletion Bill". Parliament.nz. 7 November 2007. Retrieved 1 November 2011.
  24. "Seymour holds firm on treaty referendum demand". Te Ao Māori News. Retrieved 4 November 2023.
  25. "Election 2023: ACT hammers home treaty referendum pledge at campaign launch". Newshub. Retrieved 4 November 2023.
  26. "NZ could hold referendum on Treaty of Waitangi". skynews. 16 October 2023. Retrieved 4 November 2023.
  27. "What stands in the way of the ACT Party plan for a referendum on the Treaty of Waitangi". RNZ. 2 November 2023. Retrieved 4 November 2023.
  28. "Majority would support Treaty referendum, although unsure if they want to vote on it". NZ Herald. 5 November 2023. Retrieved 4 November 2023.
  29. Witton, Bridie (15 October 2023). "'It could lead to violence': James Shaw's warning about ACT's Treaty of Waitangi referendum". Stuff.
  30. "Labour MP Willie Jackson warns of Māori uprising over ACT's proposed Treaty referendum". Newshub via www.newshub.co.nz.
  31. "Former PM Jim Bolger on ACT's Treaty referendum plan - 'It won't and shouldn't happen'". RNZ. 8 November 2023.
  32. "ACT launches Treaty Principles Bill information campaign". Radio New Zealand . 7 February 2024. Archived from the original on 7 February 2024. Retrieved 7 February 2024.