Principles of the Treaty
The Waitangi Tribunal and Treaty principles
When inquiring into Māori Treaty claims, the Waitangi Tribunal must determine whether any Crown act or omission was or is inconsistent with the principles of the Treaty. Each Tribunal panel must determine not only whether the Crown has acted in breach of Treaty principles, but also which principles should apply to the claims before it.
For this reason, the Waitangi Tribunal does not have a single set of Treaty principles that are to be applied in assessing each claim. Over the years, however, some core principles have emerged from Tribunal reports, which have been applied to the varying circumstances raised by the claims.
These principles are often derived not just from the strict terms of the Treaty’s two texts, but also from the surrounding circumstances in which the Treaty agreement was entered into.
The approach of the Te Tau Ihu Tribunal
By way of example, in its 2008 report, the Tribunal inquiring into the historical claims of the Te Tau Ihu district (the northern South Island) provided the following account of the Treaty principles it considered were appropriate to the inquiry. We stress that these were the principles that the Te Tau Ihu Tribunal thought were appropriate to that inquiry and may differ from those in other inquiries.
In the words of the president of the Court of Appeal, ‘the Treaty signified a partnership between the races’ and each partner had to act towards the other ‘with the utmost good faith which is the characteristic obligation of partnership’. The obligations of partnership included the duty to consult Māori and to obtain the full, free, and informed consent of the correct right holders in any transaction for their land.
Above all, the partnership is a reciprocal one, involving fundamental exchanges for mutual advantage and benefits. Māori ceded to the Crown the kawanatanga (governance) of the country in return for a guarantee that their tino rangatiratanga (full authority) over their land, people, and taonga would be protected. Māori also ceded the right of pre-emption over their lands on the basis that this would be exercised in a protective manner and in their own interests, so that the settlement of the country could proceed in a fair and mutually advantageous manner.
As part of the mutual recognition of kawanatanga and tino rangatiratanga, the Crown guaranteed to protect Māori autonomy, which the Turanga Tribunal defined as ‘the ability of tribal communities to govern themselves as they had for centuries, to determine their own internal political, economic, and social rights and objectives, and to act collectively in accordance with those determinants’. Inherent in Māori autonomy and tino rangatiratanga is the right to retain their own customary law and institutions and the right to determine their own decision makers and land entitlements.
The Crown’s duty to protect Māori rights and interests arises from the plain meaning of the Treaty, the promises that were made at the time (and since) to secure the Treaty’s acceptance, and the principles of partnership and reciprocity. The duty is, in the view of the Court of Appeal, ‘not merely passive but extends to active protection of Māori people in the use of their lands and waters to the fullest extent practicable’, and the Crown’s responsibilities are ‘analagous to fiduciary duties’. Active protection requires honourable conduct by, and fair processes from, the Crown, and full consultation with – and, where appropriate, decision-making by – those whose interests are to be protected.
The Treaty envisaged a place in New Zealand for two peoples with their own laws and customs, in which the interface was governed by partnership and mutual respect. Inherent in the Treaty relationship was that Māori, whose laws and autonomy were guaranteed and protected, would have options when settlement and the new society developed. They could choose to continue their tikanga and way of life largely as it was, to assimilate to the new society and economy, or to combine elements of both and walk in two worlds. Their choices were to be free and unconstrained.
When the Treaty was signed, both settlers and Māori were expected to obtain or retain the resources necessary for them to develop and prosper in the new, shared nation state. As we shall see, Lord Normanby’s instructions (and those of the New Zealand Company to its agent) stated that the true payment for Māori who parted with land would be the rise in value of what they retained, which would enable them to participate fully in the benefits of settlement. The colonisation of New Zealand was thus to be for the mutual benefit of both Māori and settlers, and the retention of sufficient Māori land and resources was acknowledged as a critical factor in achieving that.
The obligations arising from kawanatanga, partnership, reciprocity, and active protection required the Crown to act fairly to both settlers and Māori – the interests of settlers could not be prioritised to the disadvantage of Māori. Where Māori have been disadvantaged, the principle of equity – in conjunction with the principles of active protection and redress – requires that active measures be taken to restore the balance.
The principles of partnership, reciprocity, autonomy, and active protection required the Crown to act fairly as between Māori groups – it could not unfairly advantage one group over another if their circumstances, rights, and interests were broadly the same.
The Tribunal, in its Report on the Crown’s Foreshore and Seabed Policy, found:
Where the Crown has acted in breach of the principles of the Treaty, and Māori have suffered prejudice as a result, we consider that the Crown has a clear duty to set matters right. This is the principle of redress, where the Crown is required to act so as to ‘restore the honour and integrity of the Crown and the mana and status of Māori’. Generally, the principle of redress has been considered in connection with historical claims. It is not an ‘eye for an eye’ approach, but one in which the Crown needs to restore a tribal base and tribal mana, and provide sufficient remedy to resolve the grievance. It will involve compromise on both sides, and, as the Tarawera Forest Tribunal noted, it should not create fresh injustices for others.
We note that, where well-founded grievances have been drawn to the Crown’s attention in the past, and it has acknowledged those grievances and attempted remedies …we will assess such remedies in light of the principle of redress. In the view of the Privy Council, where the Crown’s own actions have contributed to the precarious state of a taonga, there is an even greater obligation for it the Crown to provide generous redress as circumstances permit.
- Janine Hayward, ‘"Flowing from the Treaty’s Words": The Principles of the Treaty of Waitangi’, in The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi, ed Janine Hayward and Nicola R Wheen (Bridget Williams Books: Wellington, 2004), pp29-40
- Te Puni Kōkiri, 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 (Te Puni Kōkiri: Wellington, 2002)
- A Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal [PDF, 190 KB]
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