The Principles of the Treaty I:
what they are and how they evolved
Introduction
This is a brief summary of the history and how the Principles of the Treaty (POTT) of Waitangi arose. It is not exhaustive
nor authoritative and many different opinions are held.
At the end of this are some links from which this information has been
obtained but again, they are not exhaustive. Use Google to find more
entries.
Notes:
- The word ‘Crown’ is shorthand for the Government of the day.
- Because the phrase ‘Principles of the Treaty’ is used extensively, it has been abbreviated to POTT for convenience.
Overview
- The Treaty of Waitangi, considered as a founding document, occupies a unique place in New Zealand's legal history.
- But
as with all treaties, the Treaty is only directly relevant to New
Zealand law to the extent that it is incorporated into legal statute.
Although the Treaty is part of New Zealand constitutional law, it has
never been adopted in any New Zealand statute despite increasing
statutory reference to the Treaty or the POTT.
- Derived from the original Treaty are the POTT. Over the past decade, these have been referred to (but never specifically defined) in many legal statutes.
- The
POTT have been formulated by various institutions such as the Waitangi
Tribunal, the Courts, the Government Executive and others. They have
never been publicly debated.
- First the deliberations
of the Waitangi Tribunal, then a series of important Court of Appeal
judgements, led by Sir Robin Cooke (Court of Appeal judge) in the late
1980s, formed the basis of the POTT. Since then the courts and the
Waitangi Tribunal have expanded the POTT and how they are to be applied
in the implementation of legislation.
- The phrasing of
the POTT in a particular Act, and the general purpose of that Act, mean
that the POTT requiring consideration in one Act may be different in
another Act. The POTT also differ depending on the institution
discussing them.
- The POTT are now required in new legislation. As the current Cabinet Manual for Executive compliance states:
“Ministers must confirm compliance with legal principles or obligations
in a number of areas when bids are made for Bills to be included in the
programme and priorities are awarded. In particular, Ministers must
draw attention to any aspects that have implications for, or may be
affected by (i) the principles of the Treaty of Waitangi, [followed by
various others]” - It
is generally considered that the provisions of the original Treaty
should not be supplanted by any POTT emerging from it today or in the
future.
- It is important to understand that Maori rights are frequently asserted on the basis of the POTT, not the original Treaty.
Court cases and the Waitangi Tribunal are constantly testing, extending
and expanding the meanings of these POTT.
Also, the Waitangi Tribunal uses different sets of POTT for different situations (see Waitangi Tribunal link below).
Government statements of the Principles of the Treaty (POTT)
Note: The ‘Articles’ refer to those in the original Treaty of
Waitangi (either language version).
- Article 1. The principle of government or the kawanatanga principle|
Article
1 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 Article 2 an appropriate priority. This principle
describes the balance between Articles 1 and 2: the exchange of
sovereignty by the Maori 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’. It also means that ‘Maori
sovereignty’ is not a choice.
- Article 2. The principle of self-management or the rangatiratanga
principle
Article
2 guarantees to Maori (but iwi only) 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.
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.
- Article 3. The principle of equality
Article
3 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. In the Treaty this was never an issue.
Furthermore, the common law system is selected by the Treaty as the
basis for that equality, although human rights accepted under
international law are now also incorporated.
Article 3 has an important social significance in the implicit
assurance that social rights would be enjoyed equally by Maori with
other New Zealand citizens.
Special measures to attain that equal enjoyment of social benefits are allowed by international law.
- The principle of reasonable cooperation
The
Treaty is now regarded by the Crown as establishing a fair basis for
two peoples in one country – with distinctive cultural development and
a 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
consultation on major issues of common concern and if good faith,
balance, and common sense are shown on all sides.
It is considered that the outcome of reasonable cooperation is ‘partnership’.
- 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, it will expect reconciliation to result.
The POTT – a brief summary
- The
acquisition of British sovereignty includes the right to govern and
make laws that apply to all. This is in exchange for protection of
rangatiratanga (chieftainship implying authority and control) over
resources, taonga (‘treasures’), plus all the natural rights of
citizenship.
- This implies a ‘partnership’ with a mutual duty to act in good faith and be reasonable.
- The duty of the Crown is to:
- Actively protect Maori interests, make informed decisions and consult where there is a need for more information.
- Develop a process to remedy past breaches.
- The duty of Maori is to:
- Recognise the NZ government as sovereign.
- Give reasonable cooperation in all Treaty matters.
Why the POTT can be so different from the Treaty itself
- It’s simple. It’s because the Treaty was declared a ‘living document’
in 1987.
- In a seminal case in 1987, Justice Cooke P declared that the Treaty is a ‘living document’.
- This ‘living document’ assertion allows new POTT to constantly emerge from the Treaty and existing ones to be modified
at any time. However, these changing POTT are only able to be declared
by the courts, the Waitangi Tribunal, the Government and its SOEs and agencies. It has
never been subject to open public debate, for obvious reasons.
- In the words of Justice Richardson in the 1987 case:
“… much of the contemporary focus is on the spirit rather than the
letter of the Treaty, on adherence to the principles rather than the
terms of the Treaty. Regrettably, but reflecting the limited dialogue
there has been on the Treaty, it cannot yet be said that there is broad
general agreement as to what those principles are.” [New Zealand Maori
Council v Attorney-General [1987] 1 NZLR 641, 672–673] - Professor
Gordon Orr of the Waitangi Tribunal has observed that it may never be
possible to formulate a comprehensive or complete set of principles
because the Tribunal has dealt with only a limited range of cases and
has not speculated about principles relevant to all possible cases yet
to be heard. This means the POTT are fully open-ended.
How the POTT evolved
- 1975:
the Treaty of Waitangi Act established the Waitangi Tribunal as a
commission of inquiry to consider claims by Maori against the Crown
regarding breaches of the Treaty and to make recommendations to the
Crown.
This Act required that such claims brought to the Tribunal
relate to actions and policies by the Crown that were or are
inconsistent with the ‘Principles of the Treaty of Waitangi’.
Just what these principles were was left up to the Tribunal to formulate as it was considered by some
in the Tribunal that the text of the original Treaty was deemed too contradictory to help resolve claims. - 1984:
As the new Labour Government began to implement its economic ‘reforms’,
Maori expressed concern that the Government might divest itself of
resources that could be used as redress for potential Treaty breaches.
- 1985: The Labour Government extended the Tribunal’s jurisdiction to cover all Crown ‘acts and omissions’ dating back to 1840.
- 1986:
The Labour Government, with David Lange as PM, enacted the State-Owned
Enterprises (SOE) Act. This included section nine (s.9) which required
that the Act be implemented in accordance with the Treaty itself:
“Nothing in this Act shall permit the Crown to act in a manner
inconsistent with the Treaty of Waitangi”. This was much argued against
at the time because of its lack of definition.
- 1987:
Court of Appeal decision in the case of New Zealand Maori Council v
Attorney-General. [1987] 1 NZLR 641 (the Lands case). This cemented the
legal case for the POTT.
This was the first major Court of Appeal case heralding a new era’ of Treaty jurisprudence and judicial activism. - 1989:
Geoffrey Palmer of the Labour Government, while Acting Prime Minister,
announced the POTT by which it would act when dealing with issues
arising from the Treaty of Waitangi. He took the few principles that
existed while anticipating the creation of extras in the future. Palmer
was PM from August 1989 until September 1990.
- 1991: The National Government, with Jim Bolger as PM, enact
the RMA. Sect. 9 which specifically referred to the POTT.
- 1992 – 2003: A number of court cases extend the meaning of POTT.
- 2004:
The Labour Government indicates that the POTT shall be included in all
new legislation. It also foreshadows that the POTT shall be included in
any new constitutional arrangement -- such as a moves to establish New
Zealand as a republic.
- July 2006: Calls by the opposition National Party to remove
POTT from legislation. It was eventually defeated.
- 2008: National Party takes office but will need the vote of the newly-formed Maori party for controversial climate change legislation. It now rejects calls to remove POTT from legislation.
Some links
Note: these links are obviously not exhaustive, and move or disappear
quickly. You are encouraged to explore further.
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