This was written to clarify m y think, and has been shared around. May 2024 version)
The background to this note is that by early 2024 the ‘principles of the treaty’ (i.e. Te Tiriti o Waitangi) was a political hotpoint. The most public was ACT’s proposal to have a referendum on the treaty principles.[1] The paper concludes that the treaty principles (with one exception which is explained below) restrain the New Zealand Government in its treatment of a particular minority (Māori), but that those restraints apply equally to all minorities in a liberal democracy including the minority of one person – everyone. All they do is make the restraints more explicit for Māori.
The Treaty of Waitangi Act 1975
Treaty principles were introduced into the governance of New Zealand by the Treaty of Waitangi Act 1975 whose purpose was
‘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.’
The Act’s preamble goes on that ‘a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles.’ However, the act did not state what those principles were. Subsequently, various other statutes have references to the principles – again without defining them.
The Court of Appeal
The inclusion of the principles in the State-Owned Enterprises Act 1986 led to a Court of Appeal case New Zealand Māori Council v Attorney-General (1987) (a.k.a. the ‘Lands’ case or the ‘SOE’ case). It forced the Court to define the treaty principles. The judgements do not codified their principles, but a common summary (numbered here for future reference) of their deliberations is:
‘1CA The Crown has the right to govern. The principles of the treaty ‘do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy. Indeed, to try and shackle the Government unreasonably would itself be inconsistent with those principles’.
‘2CA The Crown has a duty to act reasonably and in good faith. The relationship is ‘akin to partnership between the Crown and Māori people, and of its obligation on each side to act in good faith.’ The judgment draws parallels with ‘our partnership laws’.
‘3CA Active Crown has a duty to protect Māori interests. ‘The duty of the Crown was not just passive but extended to active protection of Māori people in the use of their lands and waters ‘to the fullest extent practicable.’
‘4CA The government should make informed decisions. The Court said that in order to act reasonably and in good faith, the government must make sure it was informed in making decisions relating to the treaty. That will ‘require some consultation’.
‘5CA The Crown should remedy past grievances. ‘If the Waitangi Tribunal finds merit in a claim and recommends redress, the Crown should grant at least some form of redress, unless there are grounds justifying a reasonable Treaty partner in withholding it – which would be only in very special circumstances, if ever.’[2]
Since 1987, other court cases have developed the application of the principles. For instance, active protection of Māori people now extends to other taonga such as te reo. It seems likely that the courts would also recognise kaitiakitanga – guardianship of the environment – rights, even if they were not in statute. Additionally, court decisions have protected Māori property rights. (They are implicit in the Court’s third and fifth principles.)
The New Zealand Government Principles
The New Zealand government set out principles in 1989 to guide its actions on matters relating to the treaty. No subsequent government has modified them, thereby implicitly endorsing them. They were:
‘6NZG The government has the right to govern and make laws. (The kāwanatanga principle)
‘7NZG Iwi have the right to organise as iwi, and, under the law, to control their resources as their own. (The rangatiratanga principle)
‘8NZG All New Zealanders are equal before the law.
‘9NZG Both the government and iwi are obliged to accord each other reasonable cooperation on major issues of common concern.
‘10NZG The government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.’[3]
The Waitangi Tribunal
The 1975 legislation establishing the Waitangi Tribunal charged it with applying the principles without stating what they were. Presumably the intention was that the Tribunal would identify them. The Tribunal has described in detail its approach in Principles of the Treaty of Waitangi. In summary:
‘11WT The principle of partnership. ‘The Court of Appeal has referred to the Treaty relationship as “akin to a partnership”, and therefore uses the concept as an analogy, emphasizing a duty on the parties to act reasonably, honourably, and in good faith. The Waitangi Tribunal has also emphasized the obligation on both parties to act reasonably, honourably, and in good faith, but derives these duties from the principle of reciprocity and the principle of mutual benefit.’
‘12WT The principle of reciprocity. ‘The Waitangi Tribunal’s understanding of the principle of reciprocity is derived from Articles I and II of the Treaty and captures the “essential bargain” or “solemn exchange” agreed to in the Treaty by Māori and the Crown: the exchange of sovereignty for the guarantee of tino rangatiratanga.’
‘13WT The principle of mutual benefit. ‘The Tribunal has found that the principle of mutual benefit or mutual advantage is a cornerstone of the Treaty partnership. An underlying premise is that both partners signed the Treaty expecting to benefit from the arrangement. This principle requires that “the needs of both cultures must be provided for and compromise may be needed in some cases to achieve this objective”.’
‘14WT The duty to act reasonably, honourably, and in good faith. ‘The Treaty signifies a partnership between the Crown and Māori people and the compact rests on the premise that each partner will act reasonably and in utmost good faith towards the other.’
‘15WT The duty to make informed decisions. ‘The Courts have found that it is inherent in the Crown’s obligation to act in good faith that it is obliged to make informed decisions on matters affecting the interests of Māori.’
‘16WT The principle of active protection. ‘The principle encompasses the Crown’s obligation to take positive steps to ensure that Māori interests are protected. The Courts have considered the principle primarily in association with the property interests guaranteed to Māori in Article II of the Treaty.’
‘17WT The principle of redress. ‘The Court of Appeal has acknowledged that it is a principle of partnership generally, and of the Treaty relationship in particular, that past wrongs give rise to a right of redress.’[4]
It will be evident that the Tribunal’s principles primarily derive from decisions by the courts. However, the courts may not necessarily agree with the Tribunal’s interpretation of the application of those principles. (The Tribunal is not a court and its findings do not have the standing of a court unless a court endorses them. On the other hand, the Tribunal must respect court decisions and legislation.)
Te Puni Kōkiri
Te Puni Kōkiri’s 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 identified the following principles:
The principle of partnership (11WT);
The principle of reciprocity (12WT);
The principle of mutual benefit (13WT);
The duty to act reasonably, honourably and in good faith (14WT, 2CA);
The duty to make informed decisions (15WT, 4CA);
The principle of active protection (16WT, 3CA);
The principle of redress (17WT).[5]
They are the same principles as the Waitangi Tribunal.
A Thought Experiment
Rather than provide a consolidation or synthesis of the above principles, consider the following thought experiment. Suppose every Māori was to disappear from New Zealand (perhaps a virus wiped out everyone with a Māori gene). Which of the principles would be abandoned or become redundant, assuming that they apply to all New Zealanders? After all, it can be argued that Article 3 of Te Tiriti applies to all New Zealanders. [6]
Surprisingly – at least to me – virtually ever principle is intrinsic to the governance of a liberal democracy. Their effect is to restrain the New Zealand Government in its treatment of a particular minority (Māori). In a liberal democracy those restraints apply equally to all minorities– including the minority of one person. They are generally not platitudes; many hardly apply in Putin’s Russia.
So, even were there no Māori, the government would still have the right to govern. (1CA, 6NZG). It would still have duty to act reasonably and in good faith (2CA, 11WT, 14WT[7]), to make informed decisions (4CA, 15WT) and to remedy past grievances (5CA, 10NZG, 17WT). All New Zealanders would remain equal before the law (8NZG).
The Tribunal principles of reciprocity (12WT) and mutual benefit (13WT) also fit into this liberal democratic framework, although that requires a little more finesse. I am not providing it here, because I would use a social contract approach but other social democrats could take a different approach to reach a similar conclusion.
Do Iwi Have Special Status?
With no living Māori, the other principles that the Crown has an active duty to protect Māori interests becomes redundant in the thought experiment. (3CA, 16WT) But the Crown surely has an equal duty to protect the interests of individual non-Māori.
However while they can be interpreted as applying to all New Zealanders not just conferring a special right to those of Māori descent, the same conclusion does not apply to‘Iwi’. (Iwi is capitalised to indicate ‘tribes’ rather than people; hapu are included.)
Do the following principles apply in similar ways to other voluntary organisations in a social democracy?
3CA ‘The duty of the Crown was not just passive but extended to active protection of Māori people in the use of their lands and waters to the fullest extent practicable.’
7NZG ‘Iwi have the right to organise as iwi, and, under the law, to control their resources as their own.’
16WT ‘The principle encompasses the Crown’s obligation to take positive steps to ensure that Māori interests are protected.’ (This combines the two and need not be considered separately.)
So perhaps Iwi are special. For instance, the Government’s Employment Contract Act 1991 deliberately undermined trade unions. No one questioned the right of Parliament to pass such legislation, although many questioned whether it should do so. Doing the same thing to Iwi would undermine a treaty principle. Similarly other organisations at a similar level in the political/social structure, including churches and local authorities, have no such guarantees. Perhaps key to the difference is that Iwi existed as political/social entities before the arrival of the New Zealand Government in 1840. All the others came after.
This gives a special status to Iwi. The Government has a particular responsibility to listen to their concerns. However, as the Court of Appeal ruled, that does not give Iwi a veto. (1CA) Principle 7NZG also suggests that the Government has a duty to ensure strong viable Iwi. That may be a reason that the treaty settlements were made with Iwi rather than with individual Māori.
What is unclear is the extent of the obligation on the Government to support a failing Iwi. It seems likely that were an Iwi’s rohe devastated by, say, an earthquake or volcano there would be a special obligation towards restoring the Iwi in the post-disaster reconstruction. But suppose the Iwi failed financially through mismanagement?
We also need to ponder what exactly an Iwi is. The distinction between Iwi and hapu was fluid in 1840, and varied by region. The Government has tended to treat hapu as Iwi in terms of treaty settlements. Moreover, new forms of Māori organisation – such as Urban Māori Authorities and the Māori Women’s Welfare League – may amount to modern Iwi. At the heart of such issues is the principle – not mentioned as a treaty one but fundamental to a modern social democratic state – of the right to Māori and others to develop.[8]
In summary, the Treaty Principles do not seem to give individual Māori any particular rights that everyone in a social democracy does not have. However, the principles seem to give special rights to Māori organisations such as Iwi, but they are limited; that does not give those organisations a veto in the governance of New Zealand.
Co-Governance
It is useful to distinguish between self-government, partnership, co-management and co-governance.
The self-government of Iwi is mentioned explicitly or implicitly in a number of treaty principles (especially 7NZG) arising from the second article of Te Tiriti. It is argued that self-government may be weakened by co-governance, although that depends on what the latter means which, as we shall see, is uncertain. Many other voluntary organisations would claim the right to self-government.
Partnership is mentioned in the Treaty Principles (2CA, 5CA, 11WT, 13WT, 14WT, 17WT). However it is clear that the Court of Appeal’s was referring to an ongoing relationship between the Crown and Māori with obligations to act reasonably and in good faith, akin to a partnership, echoing an earlier phrase, ‘the honour of the crown’.
The Court’s judgement does not require the partners to be of equal status. It certainly did not have in mind the institutional arrangement which is the basis of legal partnerships. Indeed, it explicitly rules that out with its principles of the right of the Crown to govern and the right of Māori to continue to exercise self-determination.
Of course, the Crown may enter into a legal partnership on a particular project with an Iwi, as it can with any other entity, as a pragmatic solution to a practical problem. But this does not involve any treaty principle.
Co-management arises out of the second article of Te Tiriti and is implicit in some Treaty Principles (2CA, 5CA, 9NZG, 13WT, 14WT, 16WT). It is a pragmatic solution where the status of taonga/treasures is unresolved.
For instance, the ownership of the Waikato River is complicated by Māori and English law having quite different conceptual frameworks of river ownership. Rather than litigating it was agreed that the management of the Waikato River would be assigned to a Waikato River Authority. Half the ten-member management board is appointed by the Crown and half by local Iwi in a co-management of the resource. The funding is from the Crown; the accountability of each board member is not to the institution which appointed them, but to the trust as set out in the legislation.
The essence of co-management involves management of resources in the public domain where management is shared within a trustee framework set out by legislation.
Co-governance
There is no definition of co-governance. As Prime Minister Chris Hipkins said, ‘no one understands what [co-governance] means because we’re talking about quite different things’. A March 2023 survey found that only 17 percent of respondents said that they had ‘a good grasp of the concept’; they are likely to have offered many different grasps
The notion of co-governance seems to have arisen out of an attempt to implement the 2007 UN Declaration on the Rights of Indigenous Peoples. However, the declaration does not use the word. It refers to ‘government’ on only three occasions: ‘self-government’ (Article 4); ‘intergovernmental’ (Article 41); ‘good governance’ (Article 46).
The He Puapua report, commissioned to respond to the declaration, did not define ‘co-governance’, but it recommended ‘the establishment of a high-level co-governance body comprised of equal numbers of government ministers and Māori representatives’, including that consideration should be given to the creation of an ‘upper house in Parliament that could scrutinise legislation for compliance with Te Tiriti and/or the Declaration [of Independence]. Various models for the composition of such a body could include a partnership model (with 50/50 rangatiratanga and kāwanatanga representation).’
The most prominent example of co-governance is the first ‘Three Waters’ proposal, to manage fresh-, storm- and waste-water by four entities whose boards would consist of half appointees of the Crown or district councils and half from Iwi, similar to the co-management of natural resources. This sharing of seats on the board seemed to be at the heart of the notion of co-governance.
But Three Waters is no co-management. It is not about water but the infrastructure to manage the water – up to – $200b worth of it. Water is a Second Article matter, better dealt with by Māori having a share of the water consents in an approach similar to fishing quotas. The initial Three Waters proposal would have been like requiring all holders of fishing quotas to have half their boards consisting of Māori.
Each water infrastructure entity would have been a monopoly, with an element of taxation from its powers to raise revenue by water charges and by area-based rates. Additionally, borrowing requires an underwriting of the loans in case an entity fails financially. In principle, if the governance is shared between local authority and Iwi appointees then the risk should be shared too, although it seems unlikely that Iwi could guarantee their share of the $200b. The financial accountability of the proposed co-governance entities was very unclear.
There has been no attempt to relate co-governance to the Treaty Principles nor to any reasonable historical or contemporary interpretation of Te Tiriti o Waitangi. With less caution it can be said that unlike partnership, self-government and co-management, co-governance has not been be derived from treaty principles.
ACT’s Treaty Principles Bill
ACT proposes legislation which would define the principles of the treaty as:
‘1. The New Zealand Government has the right to govern New Zealand.
‘2. The New Zealand Government will protect all New Zealanders’ authority over their land and other property.
‘3. All New Zealanders are equal under the law, with the same rights and duties.’[9]
Its Principle 2 is clearly narrower than the principles set out by the Court of Appeal, the New Zealand Government and the Waitangi Tribunal, nor does it conform to Article Two of Te Tiriti. It reflects the neoliberal account of the limited state and yet it could be said to repeal the explicit statements which restrain a majoritarian government’s treatment of minorities.
The proposed legislation is to go to a Parliamentary Select Committee for public consultation. If passed it would then go to a popular referendum. Currently no parliamentary party other than ACT supports the legislation.
New Zealand First’s Principles of the Treaty of Waitangi Deletion Bill.
In 2005, when in opposition, Doug Woolerton of NZF proposed a Principles of the Treaty of Waitangi Deletion Bill. [10] If passed, it would have deleted references to the Treaty Principles in 27 different Acts of Parliament. (There have been insertions in other legislation since.)
The proposal may not have been carefully thought through. For example, its effect would have resulted in section 8(1) of the Treaty of Waitangi Act 1975 reading:
‘The Tribunal shall examine any proposed legislation referred to it under subsection (2) and shall report whether, in its opinion, the provisions of the proposed legislation or any of them are contrary to.’ (The words ‘the principles of the Treaty’ were repealed).
At its introduction Winston Peters, the NZF leader, said that
‘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.[11]
The bill was terminated rather than sent to a select committee. NZF does not seem to have raised the issue formally since. There is no mention in the NZF 2023 election manifesto nor in its 2023 coalition agreement with National.
Even had NZF been successful with its bill and removed every reference in statute to treaty principles, the courts, had they a mind, could have drawn on earlier precedents such as in the Court of Appeal’s 1967 decision.
Conclusion
The majority of the treaty principles are hardly controversial. They are articulated in terms of how the government should treat those of Māori descent restraining its majoritarian powers. We would expect the government to treat non-Māori in a similar way. One could envisage a statute binding the Crown to these principles which applied to all New Zealanders.
The one group of principles excluded from the sentiments in the previous paragraph are those which give Iwi a special status. Such preferences occur in other liberal democracies as when there is an established church or for some families (e.g. the Windsor monarchy). It is, however, a restricted special status.
What seems to be happening is that the expression ‘treaty principles’ is about a larger debate on the direction(s) a ‘modern’ New Zealand should/might take. Focusing on the principles fails to frame this debate in helpful or creative ways.
One concern is that those of Māori descent have some constitutional rights that non-Māori do not. (I assume that membership of an Iwi is treated as a question of family.) It is a belief of some Māori – I recall one who insisted he had rights under Te Tiriti to a medical treatment which would not be provided to a non-Māori. It is also the belief of some non-Māori, often with resentment.
While it is a larger task than I can do here, one could go through all New Zealand statutes (and policies) and identify those where Māori are differentiated. One example will illustrate the issue. The Treaty of Waitangi Act 1975 establishes a tribunal which can only hear grievances against the Crown initiated by a person of Māori descent. Initially the focus was on property rights unfairly taken by the Crown from Iwi despite Article Two of Te Tiriti, but the scope of the Tribunal’s enquiries has since widened to other perceived grievances. A fair-minded non-Māori might be envious.
I shall go no further because we need the full list of the examples to have a civilised discussion. Yes, there will be instances when treating Māori differently makes sense. My favourite example is that one of the first actions of the publicly funded Māori anti-smoking agency was to recommend smoking be banned on marae. (Māori smoking rates are well above average.) No non-Māori agency nor the Government would have dared publicly advocate such a course. It makes sense to provide public services differently to meet the cultural differences of various groups – but not only Māori.
Whatever the outcome of such a review of the statutes, it probably would not address all the public concerns. At their heart is social change, which is happening perhaps faster than in any other prolonged period of human endeavour.
Much is generated offshore and from new technologies. However, there is a domestic driver: the development of an Aotearoa New Zealand distinctive from the offshore heritage and relevant to the locality – call it ‘decolonisation’. It has been going on since day one of the arrival of the proto-Māori, and is very evident in the record of the first European settlers.
An obvious part of decolonialisation is ‘indigenisation’ – drawing on the culture of the tangata whenua – something which would happen even were there no Māori genes left in the world. (A simple example. A mountain was named after the 1769 First Lord of the Admiralty who may have been a precursor of Gilbert and Sullivan’s First Lord –in HMS Pinafore – who ‘never went to sea’. The name has been changed to ‘Taranaki’.)
There is considerable resistance to such changes, even if with eventual hindsight they seem logical – understandably so, for individuals get their intellectual foundations from their early years. (Keynes famously said ‘there are not many who are influenced by new theories after they are twenty-five or thirty years of age’.) I am often struck by popular views not unlike those I learned in my childhood in the 1950s: most Māori are almost only of Māori ancestry; a treaty in in English was signed on 6 February 1840 which was unique rather that one of many Britain signed with natives; ‘we’ fought against ‘them’ in the Māori Wars of the 1860s. The nostalgia may even extend to a wish that ‘they’ would go back to the pa, despite today the majority of Māori being in urban centres. (They are good for New Zealand sport though.)
Managing social change is not easy. The temptation is inertia; sometimes it happens faster than even the majority of those with goodwill can cope with. Resistance often ends up with not very relevant symbols. Thus it seems to be with the objection to the principles of the treaty.
Endnotes
[1] The paper avoids using the term ‘racist’. It is one of those dialogue stopping terms which appear too frequently in New Zealand’s popular discourse, and which has so many meanings that is meaningless.
[2] Based upon https://teara.govt.nz/en/principles-of-the-treaty-of-waitangi-nga-matapono-o-te-tiriti-o-waitangi
[3] https://teara.govt.nz/en/principles-of-the-treaty-of-waitangi-nga-matapono-o-te-tiriti-o-waitangi.
[4] https://www.waitangitribunal.govt.nz/assets/Documents/Publications/WT-Principles-of-the-Treaty-of-Waitangi-as-expressed-by-the-Courts-and-the-Waitangi-Tribunal.pdf (2001)
[5] https://www.tpk.govt.nz/en/o-matou-mohiotanga/crownmaori-relations/he-tirohanga-o-kawa-ki-te-tiriti-o-waitangi (2001)
[6] E.g. D. Baragwanath (2024) ‘The Treaty and Essential Freshwater.’ NZ Law Journal, February, p.8.
[7] This interprets 11WT – the principle of partnership – as the Court of Appeal set out: to act reasonably and in good faith akin to a partnership.
[8] Waitangi Tribunal (1988) Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim (Wai22)
[9] https://www.act.org.nz/defining-the-treaty-principles
[10] http://www.nzlii.org/nz/legis/hist_bill/pottowdb2006661445/
[11] https://www.parliament.nz/en/pb/hansard-debates/rhr/document/47HansD_20050608_00001017/principles-of-the-treaty-of-waitangi-deletion-bill-first