The Principles of the Treaty II:
two legal views

Introduction

Here are two brief legal views of the Principles of the Treaty. It is neither exhaustive nor authoritative.

Notes: 

• The word ‘Crown’ is shorthand for the Government of the day.
• Because phrase ‘Principles of the Treaty’ is used extensively, it has been abbreviated to POTT.

Justice Cooke (Sir Robin Cooke, Lord Thorndon)

• Made no judgement on questions about the legal status of the Treaty itself.
• In Section 9 of the SOE Act, Geoffrey Palmer had drafted the POTT vaguely, hence it was left to Cooke to take a broad, practical interpretation of the POTT. Parliament had given him little choice.
• He considered the Treaty a document relating to fundamental rights – but only as an embryo whose ideas were not fully developed. What really mattered now was the ‘spirit’ of the Treaty and any differences between the texts of the Treaty were irrelevant: it was now a ‘living document’, even though this was never the intention of those who signed the Treaty itself in 1840.
• Now as a ‘living document’, it accorded with the oral character of Maori culture and could be used to formulate the POTT.
• As a ‘living document’, the Treaty now constituted a ‘partnership’ between two cultures, although not necessarily equal.
• Because Parliament would have no intention to act contrary to the POTT, it was the duty of the Court to check the Act (as drafted) was being observed. He considered that to do otherwise would be “unhappily and unacceptably reminiscent of an attitude, now past, that the Treaty itself is of no true value to the Maori people”.
• Thus all negotiations should be based on ‘reasonableness and good faith’. These are undefined in legislation.
  The POTT also consider the Crown merely holds assets in trust for Maori and, as such, it is up to the Crown to actively protect Maori interests to the fullest extent practicable.

Justice Somers

• Sovereignty in NZ resides in Parliament. Even if Maori and Crown had different understandings in 1840, British sovereignty has been beyond dispute since Hobson proclaimed sovereignty on 21 May 1840. POTT can be no constraint on Parliamentary supremacy.
• The Treaty texts themselves are authoritative. Any differences between the Maori and English versions of the Treaty are not important as both texts cover land.
• The POTT must be same as in 1975 Treaty of Waitangi Act so the Court of Appeal’s interpretation binds the Waitangi Tribunal.
• He considered ‘Tukino’ was a correct statement of law. This refers to the case Te HeuHeu Tukino v Aotea District Maori Land Board 1941, “Treaty only recognised (i.e. enforceable) if incorporated into domestic law”

Note: these are obviously not exhaustive.

questions about the inclusion of POTT in legislation

Many questions arise about the use of the Principles of the Treaty, especially in legislation. Here are some common questions that re-occur. They are not exhaustive.

common questions

1.  Should any government include POTT in legislation?

The reference is already there See Part 1). However, its relevance and definition are being questioned today. You decide.

2.  If so, should these references be ‘Treaty’, ‘Tiriti’ or ‘Principles of the Treaty’?

'Treaty' refers to the original 1840 Treaty in English.
'Tiriti' refers to the original 1840 Treaty in Maori. This differs in some subtle ways from the 'Treaty'. 'Principles of the Treaty' refers to the statements, from the last 20 years, derived from the Treaty.

3.  If the POTT are used, should they be more closely defined by Parliament?

The POTT are referred to in legislation in one main way: as just POTT. This has meant that government agencies, local Councils, businesses and citizens have struggled for years trying to work out exactly what their compliance obligations are – and all because the actual POTT are not well defined by Parliament. 
This uncertainty carries the real risk of litigation to force the courts to take up the role that Parliament has declined. 
On the other hand, the Waitangi Tribunal usually refer explicitly to the relevant principles in its reports (e.g. partnership, protection, development etc).

You are encouraged to explore further.