Reconciling the Principles

The Treaty and the Bill

Introduction

This article demonstrates that the principles that are set out in Clause 6 of the Principles of the Treaty of Waitangi Bill (the Bill) introduced to Parliament on 14 November 2024 can be reconciled with and are not contradictory of the principles of the Treaty of Waitangi (the Treaty) that have been developed by the Courts.

I shall start briefly with a background to the issue. I shall then very briefly outline the “principles” of the Treaty that have been defined by the Courts.

I shall then demonstrate how the principles as stated in Clause 6 in fact can be reconciled with the existing principles. Although they are expressed in a simple way, the meaning behind them is consistent with the existing understanding of the common law principles.

I shall conclude by suggesting that the angst that has developed regarding the introduction of the Bill is unnecessary. The description of the Bill as simplistic is based on a misunderstanding of its purpose and substantive content. Rather than supplant or replace the Treaty is enhances its meaning as a guiding document for the proper governance of New Zealand.

Background

The Treaty signed in 1840 was a simple document. It contained three substantive clauses. It did not have an interpretation section. It did not contain any principles.

It was, as Shane Te Pou describes it, a contract – “what is Te Tiriti but the founding contract of our nation?” he says in an article in the Herald on 17 November 2024. Quite correct. And the problem is that the contract was breached. Its terms were not fulfilled. And that led to the enactment of the Treaty of Waitangi Act 1975 which was designed to set up a means by which Maori could be compensated for the breaches that had taken place.

The long title of the 1975 Act reads 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”

The 1975 Act set up the Waitangi Tribunal which was 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.

The problem is that the principles are not defined in the legislation.

The Development of the Principles

And so the matter stood until the enactment of the State Owned Enterprises Act 1986. Section 9 of that Act stated

“Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”

But once again the principles were not defined. In 1987 was the first attempt to define the principles in the case of New Zealand Maori Council v Attorney General [1987] 1 NZLR 643 (The Lands Case)

In this case the New Zealand Māori Council asked the Court of Appeal whether the government’s plans to transfer land to state-owned enterprises breached the principles of the Treaty of Waitangi. The President of the Court of Appeal, Sir Robin Cooke, identified the basic principle as being one akin to a partnership.

The principles identified in the Lands Case were as follows:

1.   The treaty signified a partnership requiring Māori and the Crown ‘to act towards the other reasonably and with the utmost good faith

2.   Active Crown protection of Maori interests in the use of their lands and waters to the fullest extent practicable

3.   Informed decisions in that the Government must ensure it was informed in decisions relating to the Treaty – good faith

4.   Remedy of past grievances and redress

5.   The Crown has a right to govern -  the Crown should provide laws and make related decisions for the community as a whole having regard to the economic and other needs of the day’

Since the enactment of the State-Owned Enterprises Act there have been a number of other statutes that have referred to Treaty Principles – the Environment Act 1986, the Conservation Act 1987, the Resource Management Act 1991, the Crown Minerals Act 1991 to name a few.

In 1989 the Government articulated the principles which should guide its actions on matters relating to the treaty

They were:

1.   The government has the right to govern and make laws.

2.   Iwi have the right to organise as iwi, and, under the law, to control their resources as their own.

3.   All New Zealanders are equal before the law.

4.   Both the government and iwi are obliged to accord each other reasonable cooperation on major issues of common concern.

5.   The government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.

The Waitangi Tribunal has also developed and articulated some of the principles of the Treaty. Many of these reiterate what was stated in the Lands Case.

Interestingly in 1991 the Tribunal found that there was a cession of sovereignty to the Crown in return for the protection of Rangatiratanga.

It reiterated the essence of partnership and good faith, the active crown protection of Maori interests and that the Crown must act positively to protect Treaty rights in order to honor the Treaty.

There was a fiduciary duty owed by the Crown, arising from being in a more powerful position in the partnership to protect Maori interests.

The treaty protected traditional Māori rights and also gave Māori the rights of British subjects. As a result, Māori have the option to operate in one or other world, or to ‘walk in two worlds’.

The Crown had a duty to consult Maori as an element of the partnership principle.

The Tribunal also extended the scope of Maori Treaty claims to include resources and technologies that were unknown to the treaty partners in 1840. In 1993 the tribunal said that Māori interests in resources could not be constrained to traditional or pre-treaty technology, but included the right to develop resources for economic benefit.

But the tribunal set limits to the development principle in 1995 with the kiwifruit claim, saying, ‘It would, in our view, be an unjustified straining of Treaty principles to hold that the right to develop … a treasure could extend all the way to the modern kiwifruit export trade.

In essence it seems that the principles can be simply stated as follows:

1.   Partnership

2.   Active Protection of Treaty rights by the Crown

3.   Recompense for wrongs done

4.   Equity and good faith dealing by the Crown

5.   The Crown has a right to Govern

In many respects items 2 – 4 are not principles per se but vehicles to ensure the performance of the Crown in terms of the partnership principle.

Elements of the partnership principle also include the duty to co-operate and to accept that Maori may walk in two worlds, could organize and control their resources as their own. It may be thought that this is an element of any society which values property rights but it seemed necessary to articulate it.

It should be noted that in 2014 the Waitangi Tribunal seems to have walked back on its finding that the Treaty ceded sovereignty. Why it should adopt a revisionist approach is baffling and by “back-sliding” damages its own credibility.

The way in which the principles have been developed makes it clear that the Crown has the right to govern. To suggest otherwise would make a mockery of everything else including the obligations that have developed as part and parcel of the principles. If the Crown had no legitimacy everything else falls by the wayside. So I put the sovereignty argument to one side for this discussion.

Reconciling the Principles and the Bill

Section 6 of the Bill provides as follows:

The principles of the Treaty of Waitangi are as follows:

Principle 1

The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws,—

(a)          in the best interests of everyone; and

(b)          in accordance with the rule of law and the maintenance of a free and democratic society.

Principle 2

(1)          The Crown recognises, and will respect and protect, the rights that hapū and iwi Māori had under the Treaty of Waitangi/te Tiriti o Waitangi at the time they signed it.

(2)          However, if those rights differ from the rights of everyone, subclause (1) applies only if those rights are agreed in the settlement of a historical treaty claim under the Treaty of Waitangi Act 1975.

Principle 3

(1)          Everyone is equal before the law.

(2)          Everyone is entitled, without discrimination, to—

(a)          the equal protection and equal benefit of the law; and

(b)          the equal enjoyment of the same fundamental human rights.

Principles 1 and 3 are statements that would apply to any liberal democracy and represent Enlightenment thinking. John Locke, Thomas Jefferson and John Stuart Mill would instantly recognize them for what they are.

I shall now proceed to consider whether the Bill’s Principles can be reconciled with those described above.

Principle 1 of the Bill

Let us start with Principle 1.

Firstly it directly reflects the principle of the Crown’s right to govern that was stated in the Lands Case and was rearticulated in 1989 by the Labour Government’s statement of the principles. Thus, the Bill’s first principle can be reconciled with the principles already developed.

But in fact the Bill’s first principle goes beyond the Crown’s right to govern. It encompasses the principle of partnership.

My reasons for saying that are these.

1.   Government in a liberal democracy involves the Government on the one hand and the governed on the other.

2.   Government in a liberal democracy governs with the consent of the governed.

3.   The consent of the governed legitimizes Government expressed by regular plebiscites.

4.   The consent of the governed may be withdrawn by a plebiscite in which case a new Government governs with the consent of the governed.

5.   These arrangements are in the nature of a partnership between the Government and the governed.

6.   An element of that partnership is that the Government will govern in the best interests of everyone. That includes groups of the governed and naturally includes Maori.

For those reasons the partnership principle is implicit in principle 1 of the Bill.

I earlier suggested that some of the other principles are vehicles to ensure the partnership principle.

Therefore the active protection principle is inextricably tied up with the partnership principle as reflected in principle given that Maori are a constituent part of “everyone” and the active protection principle ensures the protection of their interests.

To suggest that “everyone” excludes Maori means that the balancing of competing interests involving other groups would be sidelined. Such exclusionary discrimination could not be intended. In such a situation I would suggest that the “consent of the governed” would be rapidly withdrawn if everyone were lumped into an amorphous mass. Were that to be the approach it would be more akin with a socialist approach riddled as it is with stereotyping and generalized solution for all.

Implicit in the partnership principle and the active protection principle is the equity and good faith principle. Active protection and overall partnership obligations cannot be fulfilled in the absence of good faith between the parties. If a government excludes good faith, it will rapidly fall as was the case with the Ardern\Hipkins Government which did demonstrate an absence of good faith as well as blatant discrimination against its citizens.

If it is accepted that partnership is implicit in Principle 1 of the Bill as an aspect of the Government’s power to govern in a liberal democracy, it logically follows that equity and good faith are foundation stones of that partnership as well as active protection.

Active protection, of course, is not reserved only to Maori. It is part of the duty of Government to ensure that all citizens receive the active protection of their property, civil, legal, political and human rights.

Principle 2 of the Bill

I now turn to Principle 2.

This principle clearly reflects the Crown’s obligation to provide recompense for wrongs done – the remedy principle as stated in the Lands Case.

There may be some concern about this because the wording is a bit obscure. It ensures that the rights of hapu and iwi under the Treaty are protected and guaranteed. As the principle is worded it would seem that those rights are crystallised as at the time the Treaty was signed. The rights may differ from the rights of “everyone” if they are agreed in a settlement of an historical claim under the Treaty.

The problem with this Principle is that it does not recognize that there may be ongoing and future claims in respect of elements or interests that did not exist in 1840. But even the Waitangi Tribunal recognized that the development of technologies is not unlimited in nature.

But Principle 2 in the Bill is in the form of a limitation on the scope of future claims.

Nevertheless, as an aspect of the partnership principle in Principle 1 there could well be an expectation on the part of Maori to benefit from future technologies and elements unknown in 1840 as an aspect of active protection and a recognition of the interests of groups that make up “everyone”.

So as matters stand the principles of partnership, active protection, equity and fair dealing and remedies for wrongs are included in Principles 1 and 2 of the Bill.

Principle 3 of the Bill

Principle 3 in the Bill reflects an unarticulated principle in the way in which the principles have developed over the years.

In fact Principle 3 is a restatement of the Third Article of the Treaty.

1.   Everyone is equal under the law.

2.   Everyone may claim the benefits and protections of the law.

3.   Everyone enjoys the same human rights.

Items 1 and 3 do not appear in the language of Article 3. But equality before the law is a given in a liberal democracy as is the equal enjoyment of human rights.

Item 2 restates in modern language what was understood by the protections and benefits of law.

Observations

Given that the provisions of Clause 6 of the Bill encompass all of the principles that have been developed since the Lands Case it seems curious that there is such strident opposition to the Bill.

One wonders whether or not there has been any detailed consideration or thought given to the way in which the provisions of the Bill reflect the existing principles that have been articulated.

I put to one side the performance politics of Hana-Rawhiti Maipi-Clarke in Parliament on 14 November 2024. Clearly that outburst had nothing to do with the Bill. It was obviously staged and well thought out. It was not a spontaneous demonstration as evidenced by the way that she was supported by the co-leaders of Te Pati Maori and a sizable and very vocal contingent in the public gallery. It was an exercise in political theatre that seems to me to demonstrate that Te Pati Maori can advance no coherent argument beyond intimidating the member who introduced the Bill.

Hopefully members of Te Pati Maori will read the Bill and offer a slightly more coherent argument against it.

Similarly the Te Pati Maori organized “hikoi” or protest march that symbolically commenced at North Cape and then used transport to move to various destinations where a ceremonial and symbolic walk took place is another example of political theatre, yet it is doubtful if those marching have read the Bill or understand its wider implications.

Because the Bill addresses issues surrounding the Treaty and attempts to crystallise elements of it (although those elements are, as I have demonstrated, consistent with the common law principles as they have been articulated), it is as if one were interfering with Holy Writ – attempting to rewrite the Beatitudes or the Ten Commandments.

The commentariat has been flooded with statements from the Great and Good, along with 42 Kings Counsel whom I do not exclude from that group, but one must question whether there has been any really deep thinking about what is proposed or whether the critique is in the nature of a knee-jerk response to the proposition that someone is interfering with the Scripture of 1840 or the articulated theories of the Court of Appeal and the Waitangi Tribunal.

The Maori Law Society has suggested that

“It is an act of bad faith and deep dishonour that the Crown is seeking to unilaterally amend how the Treaty is interpreted in all laws without the free, prior and informed consent of Māori.”

But this does not change the Treaty nor the way that it is interpreted. The Treaty has been interpreted and its principles articulated by the Courts without the prior free and informed consent of Maori.

Perhaps a close reading of the Bill and a reconciliation of what it says with the common law principles would result in a better understanding of what it actually does. Then consent may follow.

But they have a point about the lack of prior consultation which I shall discuss shortly.

Forty-two King’s Counsel called for the abandonment of the Treaty Principles Bill. In a lengthy and well footnoted letter to the Prime Minister and the Attorney General they argued strongly and carefully for such an outcome. The text of the letter can be found here.

The letter sets out some of the background to the nature of the Treaty and the common law development of the principles which they regard as settled law. They go on to suggest:

“The coalition government’s Treaty Principles Bill seeks to redefine in law the meaning of te Tiriti, by replacing the existing “Treaty Principles” with new Treaty Principles which are said to reflect the three articles of te Tiriti. The problem is that they do not. By imposing a contested definition of the three articles, the Bill seeks to rewrite the Treaty itself.”

This is incorrect and overlooks Clause 9 of the Bill and the way in which the common law principles are a part of the principles in the Bill. The writers of the letter clearly overstate the scope of the Bill and overlook the deeper aspects of it which I have outlined in this article.

This premise – that the Bill rewrites the Treaty and which I argue is incorrect -  then forms the basis for much of the following opposition to the Bill.

Some of the other common law principles that have been developed and their origins are discussed and reference is made to the Waitangi Tribunal finding which holds that the Bill is a breach of the Treaty discriminates against Māori and abrogates their rights, will damage the Māori-Crown relationship and “risk undermining social cohesion”. (Waitangi Tribunal, Ngā Mātāpono: The Principles (2024), at xvii-xviii; letter of transmittal to new Chapter 6 released on 5 November 2024, at 5.)

What is interesting is that this statement predated the introduction of the Bill and clearly has not considered some of the issues that the wording raises and which I have discussed in this article. In essence the Tribunal jumped the gun.

One extraordinary suggestion is made at paragraph 7 of the KC’s letter and represents a potential challenge to the supremacy of Parliament.

“Even if Parliament can legislate in this way (which is uncertain), it should not do so because it is not for the government of the day to retrospectively and unilaterally reinterpret constitutional treaties. This would offend the basic principles which underpin New Zealand’s representative democracy.” (my italics)

In fact the Bill, as I have argued in this article, brings together fundamental aspects of a representative democracy and incorporates the principles that have been decided and articulated.

One matter which the King’s Counsel raise is that there has been a failure to engage meaningfully and in good faith at the policy development stated with Maori.

That is a correct statement and echoes a misgiving that I have about the introduction of the Bill. Maori can correctly claim, as they do, that “we were not consulted”.

That is correct. But Maori were well aware of what was coming and there will be a six month Select Committee process to enable their voices along with many others to be heard. There will be more than ample opportunity for consultation together with a clear statement from the National Party and New Zealand First that the Bill will fail at a Second Reading. But even were National and New Zealand First to alter their position, the Select Committee process enables consultation and possible changes to the Bill.

Anne Salmond suggests that the Bill is extremely provocative and misleading, a “crude, misleading bill on a key constitutional issue” but again one wonders whether any thought has been given to the substance of the Bill rather than suggesting it is misleading whereas in fact it clarifies and contains implicit within it decades of common law attempts to identify the principles of the Treaty and incorporated within it.

Helmut Modlik, chief executive officer of Te Rūnanga o Toa Rangatira, stated:

“Seymour’s Bill seeks to redefine Treaty principles long-established by our courts to three new ones: the Government has the power to govern, everyone is equal before the law, and hapū and iwi are afforded different rights only if agreed through Treaty settlements.

First, Te Tiriti o Waitangi, like all treaties, is between more than one party. Seymour wants to change its provisions without both parties’ agreement. His response is to say it’s up to New Zealanders to decide. I’m sure that wouldn’t be his answer if he bought a house and after cashing the cheque, the vendor decided to keep the money and still live in the house. Would Seymour say, “let’s have a vote?” I don’t think so.

Second, his principles only bear a passing resemblance to the actual words in Te Tiriti, while missing key bits. Now don’t get me wrong, it’s not that I don’t like his proposed principles, it’s just that they don’t reflect what the Treaty actually says.”

Mr Modlik overlooks a few important points. First, the Bill does not set out to rewrite the Treaty. Secondly the Bill does not add three new principles to those existing. As I have demonstrated the principles developed by the common law fit comfortably within the Bill. Thirdly, as I have noted, the principles came after the Treaty and are not a part of it.

The principles – either those of the common law or those in the Bill (which incorporate the common law principles) are aids to interpretation for the future. They do not propose to replace the Treaty and if Mr Modlik had read the Bill he would be familiar with the provisions of Clause 9 which states

“Nothing in this Act amends the text of the Treaty of Waitangi/te Tiriti o Waitangi.”

Or maybe he didn’t get that far.

A former Prime Minister, Jenny Shipley, recalls the positive way that the Treaty has been used in the past to further race relations in New Zealand and deplores the Bill, suggesting:

“While there have been principles leaked into individual statutes, we have never attempted to – in a formal sense – put principles in or over top of the Treaty as a collective. And I caution New Zealand – the minute you put the Treaty into a political framework in its totality, you are inviting civil war.

“I would fight against it. Māori have every reason to fight against it.”

One wonders if Ms. Shipley has read the Bill. If so, perhaps she has overlooked the fact that the Bill proposes the three principles that should be put to a referendum. If the Bill were to pass it would not legislate the principles as part of the law of New Zealand – merely a referendum.

Perhaps that is what Ms Shipley fears. Perhaps there would be majority support for the principles in the same way that Australia refused to adopt the “Yes” vote.

Even the Prime Minister has weighed in.

“You do not go negate, with a single stroke of a pen, 184 years of debate and discussion, with a bill that I think is very simplistic.”

The PM has read the Bill because he is chair of the Cabinet Committee that approved it for its First Reading. What is concerning is that his opposition was clear right from the start. He sees the Bill as a political hot potato that he would rather not hold. And so, as per the Coalition Agreement, it will be consigned to oblivion after the Select Committee process.

Yet to suggest it negates debate, to suggest it is simplistic is to ignore the fact that it actually encapsulates the principles that have been worked out not since 1840 but since 1975 when the concept of Treaty Principles was first incorporated in legislation.

Perhaps the Prime Minister needs to look more closely at his history as well as the way in which the Bill could work rather than be so dismissive of it. Rather I would suggest that the Prime Minister by his criticism of the Bill is being simplistic and wants to avoid a principled (forgive the pun) discussion of the matter.

It seems to me that there has been little attempt to reconcile the Bill on the one hand with what has gone before. As I have demonstrated, the two are reconcilable and complementary.

Conclusion

I suggest that the angst that has developed regarding the introduction of the Bill is unnecessary. The description of the Bill as simplistic is based on a misunderstanding of its purpose and substantive content. Rather than supplant or replace the Treaty is enhances its meaning as a guiding document for the proper governance of New Zealand.

The Bill by implication incorporates all the existing principles that have been developed and articulated. Whether it should go further is a matter for the Select Committee and for the people and ultimately their elected servants (representatives) in Parliament. The issues are whether or not the Loudest Voices in the Room will override perhaps softer tones, whether or not political theatre will override sweet reason and whether or not people have read the Bill and understand some of its implications and subtext.

For this last issue I trust that this article has been of assistance.