“Contestation is the treaty’s only consistent companion,” writes Justice Sir Joe Williams (Ngati Pūkenga, Waitaha and Tapuika), in a foreword to Ned Fletcher’s book The English Text of the Treaty of Waitangi. As a site of political, cultural, legal and historical controversy since its signing in 1840, the treaty is constantly debated “because it matters so much to so many”.

And how true are his words. In the eyes of some to whom LawNews has spoken, the lack of any definitive list of principles of the treaty means they simply must not exist. Their “invention” lacks democratic authority and has racially divided the country and the government is breaching the treaty in conferring “special” rights and privileges on Māori.

n the eyes of others, however, the principles must drive the Crown “to do more, do better” for Māori. They must evolve – sometimes subtly – to meet newer challenges, and respecting the property rights of tangata whenua is crucial to better race relations.

In the second of our three-part series, LawNews has asked a wide range of people how the principles might play out in everyday life and whether they remain relevant to 21st-century Aotearoa New Zealand.

‘I’ve lived it’

For those of us who live in the real world, says former AttorneyGeneral Chris Finlayson KC, certain fundamental principles have not been honoured. “If there had been greater respect for the property rights of tangata whenua, many of which are not fully understood, then this country would be a much different – and I would say happier – country.

As National’s most recent Treaty Negotiations Minister for nine years from 2008, Finlayson saw the principles up close across nearly 60 settlements – an unprecedented achievement. He’s seen where things have gone wrong and where his approach to the principles might have made a difference. “I’m a practical sort of sod…so I address it in that way rather than in ethereal concepts,” he says, and as with any good legal practitioner, an example is given: Parliament’s effort to protect the Ka Mate haka for Ngāti Toa.

The Haka Ka Mate Attribution Act 2014, which gives effect to provisions in the deed of settlement between the iwi and the Crown, recognises:

• Ngāti Toa rangatira Te Rauparaha as the composer of the famous haka;
• the haka is a taonga of the iwi; and
• the iwi has a right of attribution to the haka: Ngāti Toa must be identified if the haka is used for commercial gain. The iwi can enforce the right, but only through seeking declaratory relief.

While the haka is the “intellectual creation” of Te Rauparaha, its composition drew upon matauranga Māori, the iwi says in a statement scheduled to the Act. “In Māori thinking, such a composition does not ‘belong’ to the composer per se, but instead is a taonga of the iwi to which the composer affiliates. It is they who give life and form to the words…As long as [the taonga] continues to exist, Ngāti Toa Rangatira obligations will continue.”

Some people would dispute property rights as a principle, Finlayson says, to which he responds: “I’ve lived it, and I would say it’s an extremely important principle. I would say that’s the one that’s been breached the most.”

‘Do more, do better’

The purpose of the principles is to guide the Crown’s conduct in its dealings with Māori, says Aroha Harris (Te Rarawa and Ngāpuhi), an Associate Professor of History at Auckland University and former Waitangi Tribunal member.

Kāwanatanga, or the Crown’s right to govern, must be balanced with rangatiratanga, or what existed in 1840, to the extent that tangata whenua want to retain it, Harris says of the principles, which also include cooperation (or partnership), redress, active protection and equity.

Take the “multi-layered” principle of equity, for example. The World Health Organisation defines it as “the absence of avoidable or remediable differences among groups of people”. Not only are differences in health status unfair and unjust, but they are the result of differential access to the resources necessary for people to lead healthy lives, she says.

Compared with non-Māori, tangata whenua have what has been described as “the most pervasive and long-standing health inequities”: lower life expectancy; higher death rates at nearly all ages; an unequal health status across almost all chronic and infectious diseases, plus injuries, including suicide; poorer overall health outcomes and less of an inclination to access services.

When seen against article three of te Tiriti, which confirms Māori have all the rights and privileges of British subjects, equity is the guarantee through which Māori and all other citizens of New Zealand are assured equitable treatment from the Crown, the Waitangi Tribunal says in its Hauora WAI 2575 report. Equity also means the Crown, in order to actively pursue equitable outcomes for Māori, must provide health services that Māori need. These services must not only treat patients equitably but be equitably accessible and funded, the tribunal says.

Equitable services, access and outcomes, as Harris describes it. Put another way, everybody might be able to go to school in Aotearoa New Zealand, given there are 2,500 of them nationwide. But simply providing a school doesn’t guarantee tamariki the outcome of a good-quality education. Nor does the existence of a school guarantee that tamariki can access it every day. “It’s really [about] driving the Crown to do more, do better, think about every element and not just the fact that you’re providing the service,” Harris says.

Abandoning equality

Barrister Gary Judd KC says Parliament was wrong to introduce the phrase “the principles of the treaty” into the legislative lexicon. But given the impossibility of removing them, they must be defined in plain English, “by reference to the actual meaning of the treaty”.

Judd, a member of the Act Party, disagrees with the view that the principles should be the bedrock of the country’s constitutional system. While the treaty’s actual meaning is important, “the rule of law is the bedrock of New Zealand’s constitution. The most important aspect of the treaty is that it is the way the rule of law came to New Zealand.”

Judd is critical of the Labour government’s radical moves toward “separatism” – or what others describe as “cogovernance”. Much controversy has surfaced in the past three years as a result of Labour’s Three Waters reforms, where 50/50 representation of mana whenua and councils would be established on the bodies overseeing the boards of the amalgamated water entities managing the country’s water infrastructure. The creation of Te Aka Whai Ora, the Māori Health Authority, tasked with “indigenising” the health system to better meet the needs of tangata whenua, has also ignited claims of separatism.

But co-governance is not new – it has been a feature of treaty settlements too. Take the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, which set up the Waikato River Authority, a body tasked with looking after and cleaning up the Waikato River. Half of its 10 board members are iwi appointees, selected by Māori from the five iwi bordering the awa. The remaining half are Crown appointees. There exist other co-governance arrangements: Tūpuna Maunga Authority, comprised of equal iwi/Auckland Council membership, manages Auckland’s volcanic cones, including Ōwairaka/Mt Albert.

“There has never been any rational basis for making distinctions based on something which no one can do anything about. It has taken humankind centuries to realise this, but it has been understood in civilised societies for several hundred years and it is quite astounding that New Zealand in the 21st century should be sanguine about attempts to turn the clock back.”

When meaning is absent

The principles are nothing more than an invention, says Auckland University education professor Elizabeth Rata. The fact that MPs didn’t know what the principles of the Treaty of Waitangi meant when they were inserted into statutes from 1975 is a “monumental political failure” in her eyes. “At the very least, a democracy requires words to have an agreed meaning, otherwise rational communication is impossible.

Two versions of the treaty exist: the 1840 treaty containing the actual articles and what Rata names “the principles treaty”, she says. While the meaning of the 1840 treaty is in its articles, the “inventors” of the principles treaty have, “after decades of uncertainty”, settled on the so-called core principles of partnership, active protection and redress – despite these words not appearing in the treaty articles.

MPs’ failure to define these core principles raises serious questions of legitimacy, Rata says. “In a democracy, parliamentarians represent us, the people. Yet does this authority have legitimacy when, first, our representatives did not know what the principles meant? Second, can the source of parliamentarian authority be said to be based in the final authority of the people when meaning is absent?”

Continuing to insert the principles doesn’t make up for the “astonishing” failure of political representation, she says, the consequence of which is a racially divided country. Continuing to do so only makes the failure worse. Until New Zealanders are given the final say, the principles will remain empty words, devoid of the democratic authority claimed for them. Rata says: “The discussion about whether we want treaty principles may be four decades late, but it must happen for the sake of New Zealand democracy.”

‘Specious in the extreme’

Finding an explicit, definitive list of the principles is proving challenging, Sandra Goudie says. The ex-Thames mayor and former National MP for Coromandel says she has been “impelled” to take more decisive action because of the Labour government’s drive to make it harder for local government to comply with te Tiriti.

“Treaty legislation has changed from ‘have regard to’ to ‘have regard and give effect to’ and now it’s ‘give effect and provide for’. Someone has to pay for whatever entity – usually a regional and local authority – decides what it will do to ‘give effect and provide for’,” she explains. “And, of course, the onus falls largely on the hard-working mums and dads of New Zealand who own property, paying for local and regional rates that escalate accordingly.”

The controversial local politician, who declined to take the Pfizer covid-19 vaccine (although voted for its rollout in her region) and refused to confirm whether she believed in climate change, asked Environment Minister and AttorneyGeneral David Parker for a copy of the principles in relation to the Natural and Built Environment Act 2023, one of the latest statutes to include a “give effect to” treaty clause.

Goudie says while his response was “specious in the extreme”, she was told there is no authorised copy of the principles. “He took pains to assure me the principles have been ‘explored’ and ‘discussed’ by the courts and the Waitangi Tribunal. Sorry to say, but as Attorney-General, he should know that exploration and discussion does not a principle make.

She was further unimpressed when Parker and the Electoral Review Panel offered to give her guidelines on the principles, describing the move as disingenuous. “How can anyone have a guide or guidelines for something that does not exist? No authoritative copy means that as at this point, they – the treaty principles – do not and have never existed.”

Nothing more to add

LawNews asked Parker about the principles, whether better definition would remove their ambiguity and whether they should be the bedrock of our constitutional system. The Attorney-General’s responses refer LawNews to a raft of Acts containing treaty clauses (such as the Urban Development Act 2020, the Local Government Act 2002, and the Crown Minerals Act 1991), the High Court decision of Ngāti Whātua Ōrākei v Attorney-General [2022] NZHC 843 (which discusses the principles), and Te Puni Kōkiri’s He Tirohanga o Kawa principles guidebook. Parker gave no indication of his views.

On whether he accepts that some New Zealanders are worried the principles are being foisted upon them without their permission, Parker says the courts and the Waitangi Tribunal have “articulated how they apply in particular situations” and lists those widely accepted as core principles: partnership, active protection and redress. Invited to reconsider his answers, Parker said he had nothing more to add.

A foundation stone

Harris acknowledges other counter-arguments exist: that the principles don’t go nearly far enough, they aren’t so important when you can reconcile the two texts of te Tiriti and that the Māori text is the more significant version.

But some kind of guidance is still necessary. “Even if we magically agreed that we need only to work with the te reo Māori text and therefore we don’t need any other explanation, you’ve still got to balance article one and two using only the Māori text,” she says. “I think you still need some kind of guidance – whether it’s principles or some other guidance – because you have to implement it. You have to make it real for people.

“For example, what does the justice system look like when you have kāwanatanga and rangatiratanga co-existing? Let’s imagine that north of the Brynderwyn Hills is entirely Māori territory. If, say, somebody from Auckland goes and commits a crime there, do they have to go to that local justice system or do they get extradited to Auckland? I still think we would have needed some guidance to work out that.”

Do all New Zealanders need to know about the principles and understand what they mean? In the interests of New Zealand’s democracy, it would help if they did, says Harris. But it’s not up to them to bring the principles to life. That responsibility must rest with the Crown.

“Te Tiriti wasn’t the destination. It was maybe a foundation stone, a platform, but we still had things to work out after that. That’s especially so, given the tribal nature of the Māori world. The treaty wasn’t the beginning or the end of everything,” she says. “It was a broader, high-level agreement and we had to get to the detail and the detail had to be worked out, I think, locally, with hapū.”

No idea of the treaty

Wellington lawyer David Cochrane echoes Harris in saying the starting point of any discussion is that “the treaty is a treaty with the Crown”. The former Chapman Tripp partner was a member of the Waitangi Tribunal between 2014 and 2022. In his experience as a panel member hearing claims about the Trans-Pacific Partnership Agreement (TPPA), the Crown “had no idea of the treaty”, he says.

Beginning in June 2015, claims were lodged out of concern that New Zealand’s entry into the TPPA, a free-trade agreement between New Zealand, the US, Japan and nine other Pacific Rim countries, would diminish the Crown’s capacity to fulfil its obligations to Māori under te Tiriti. While a clause in the agreement allowed the Crown to give Māori more favourable treatment, the claimants didn’t believe it would adequately protect Māori interests. They also claimed the Crown’s consultation process fell far short of its partnership obligations.

The tribunal in 2016 found the clause should have reasonably protected Māori interests, but was critical of the Crown for not seeking or giving Māori, as the partner to te Tiriti, a realistic opportunity to identify their interests in the TPPA. This difficulty was compounded by the secrecy with which the Crown developed its policy and negotiating position – a likely factor in the low levels of engagement between the Crown and Māori before the claims were lodged.

The tribunal was also concerned that lines of advice to the government on Māori interests affected by the TPPA appeared limited. “It is not clear what role TPK [Te Puni Kōkiri] played in Crown engagement or policy during the negotiation of the TPPA. We only heard from MFAT witnesses,” the tribunal said. “We did not see any contemporary evidence of consultation between MFAT and TPK on the nature of the Māori interest in the TPPA or engagement with Māori on the TPPA.”

Consultation then engagement

One must read between the lines, “but MFAT basically said, ‘we’re not interested. That’s Te Puni Kōkiri’s problem, they can work it out’,” Cochrane says.

“That was the attitude: ‘We’ve all got our specialities and that’s our speciality. Of course, the Crown as a whole does comply with its duties because there’s an indivisible Crown so the limb that is Te Puni Kōkiri does the Māori bit, and we do the foreign bit and we don’t expect Te Puni Kōkiri to go overseas and negotiate with the Germans or the French or whomever and we don’t poke our nose into how they handle the Māori aspect’.”

This explanation doesn’t sound so offensive, “but it is”. Cochrane says the tribunal concluded the Crown was “very good at dealing with its obligations under international treaties with treaty partners, but not so good at dealing with the domestic treaty partner”.

He raises a subtle shift in the tribunal’s language. Five years before the TPPA WAI 2522 inquiry, the tribunal released its WAI 262 report Ko Aotearoa Tēnei, which recommended wide-ranging reforms to laws and policies affecting Māori culture and identity while calling for the Crown-Māori relationship to move beyond grievance to a new era based on partnership. Cochrane says the WAI 262 report is all about “consultation”. But, five years later, the language in the tribunal’s TPPA report reflects something different – “engagement” – a word the TPPA itself uses.

Where consultation legally means, “we’ve looked at this issue and there are two or three ways of doing it, here’s the one we prefer, what do you think?”, engagement must occur much earlier, Cochrane explains. Engagement means: “‘We want to do this, what do you think about it? What bits of it interest you? How do you think we should proceed? We may not do it the way you say, but we want to know what you think about what we should do rather than here’s what we’ve decided to do’.”

This linguistic shift might be subtle, but “it’s a major mind shift”, he says. Five years after the claims were first lodged, the tribunal found the Crown’s process for engagement over particular issues had been consistent with its Tiriti obligations to Māori.

Expire or expand

However, the tribunal left for the final stages of its inquiry some residual issues of engagement and the secrecy of the government’s negotiations with other countries; the claimants still believed the Māori perspective was, as the tribunal’s stage two report puts it, “at the margins, always required to react as best as it can to an agenda and timeframes set by the Crown (and others)”. Those issues were later settled through mediation, which meant the tribunal didn’t end up addressing them.

The tribunal’s 2023 Comprehensive and Progressive Agreement for Trans-Pacific Partnership report records MFAT, under the mediation agreement, would “engage with authenticity and integrity” to build a mutually beneficial relationship with the claimants. From there, the parties would set up Ngā Toki Whakarururanga, a by-Māori, for-Māori body advancing and protecting Māori interests in trade. MFAT would ensure the body is “fully engaged with, and has meaningful influence over” trade policy. Ngā Toki Whakarururanga would also, among other things, commission independent Tiriti impact assessments and identify Māori matters that potentially affect relationships with taonga and Tiriti rights.

Cochrane doesn’t think the principles have passed their use-by date; to say otherwise is to accept that New Zealand must start over again with how it tries to apply a 183-year-old treaty in 2023. Yet starting over again is too-far-gone an option for the country, he says.

“The treaty gets more important as it goes along. Most treaties don’t. Most treaties get less significant as time passes. Treaties either expire or expand because they meet new situations and you have to sit there and say ‘does it cover this or not?’” ■

Next week: how can lawyers ‘give effect’ to te Tiriti and what does the treaty’s constitutional future look like? ■