Imagine this: some time has passed since New Zealand went to the polls. With a bare majority, and barring a loss of confidence in the House, a National-Act coalition government is leading Aotearoa New Zealand for the next three years.

In the run-up to the election, Act has announced a bottom line in any post-election coalition negotiation: a new statute defining for the first time the principles of te Tiriti o Waitangi, subject to voters approving it in a referendum. New Prime Minister Christopher Luxon’s response? “That is something that’s not our policy and we don’t support it.”

Except National ends up agreeing to it. The new government’s coalition agreement reveals National will help pass Act’s Treaty Principles Bill. Act leader David Seymour, in comments echoing the party’s race relations policy document, says an open debate about the treaty and its place in “our constitutional future” will be legitimised. With his trademark chief executive enthusiasm, Luxon states the obvious: the New Zealand people will decide.

With just over a week left in the 2023 election campaign, this hypothetical is a strong possibility if National and Act can form the next government. What does this mean for Aotearoa New Zealand? Much like Australia is grappling with the significance of constitutionally guaranteeing an Aboriginal and Torres Strait Islander voice to the Commonwealth government, New Zealand could find itself wrestling with the significance of its foundational constitutional document.

The principles of the treaty might exist but there are different levels of understanding among New Zealanders. Some don’t know their meaning and are confused by their relevance; others know them off-by-heart. Some express concern that co-governance arrangements with Māori conflict with and undermine New Zealand’s “one person, one vote” democracy, while some are less worried about abstract principles when faced with rising mortgage repayments and food prices.

In this three-part series, LawNews will aim to answer basic questions about the principles of the treaty, such as what are they? Where can they be found? What do they mean? What purpose do they serve and are they still relevant today? The series will also set out a wide range of views on the way forward for everyday New Zealanders, the legal profession and our nation.

In less than 20 years, our country will reach the 200th anniversary of the treaty’s signing. Will the country be able to appreciate and celebrate this milestone in our relatively young history? Will the national conversation have evolved into something more mature, respectful and constructive? What will New Zealand look like in 2040? And where will the treaty fit in with our constitution?

These questions are best answered by looking at where the principles come from.

An election promise

The phrase “the principles of the Treaty of Waitangi” first appeared in legislation with the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal, the permanent commission of inquiry that makes recommendations on claims brought by Māori about Crown actions that breach the treaty principles.

The statute’s preamble emphasises Parliament’s desire for a tribunal to recommend how best to apply 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 statute does not define the principles.

Norman Kirk’s Labour Party appears to have inadvertently kickstarted the principles controversy. In The Constitution of New Zealand: A Contextual Analysis, Justice Matthew Palmer and Professor Dean Knight recount how the Act came into being. In November 1972, Labour was elected and one of its four Māori seat MPs, Matiu Rata, as Māori Affairs Minister, was asked by Cabinet to consider how to make good the party’s election promise to “examine a practical means of legally acknowledging the principles” set out in the treaty

Rata did so by chairing the government’s caucus committee on Māori Affairs. Its first report recommended setting up a permanent standing committee of the House of Representatives to consider alleged treaty breaches. However, Cabinet preferred a legislative solution, which resulted in the committee’s second report. Cabinet effectively adopted the revised proposal, accepting in principle a preliminary draft Treaty of Waitangi Bill – subject to amending the operative clause to refer to “the principles” of the treaty, which reflected Labour’s election manifesto commitment. The Bill received royal assent on 10 October 1975.

The tribunal’s early days were fraught, Palmer and Knight write. Elected in 1975, National didn’t set up the tribunal until the end of 1976 and seems to have acted only because of legal risk and once a complaint had been received by the tribunal. Its early reports were “conservative and legalistic”. But from 1980, under the leadership of Sir Edward Taihakurei Durie (Rangitāne, Ngāti Kauwhata and Ngāti Raukawa), the tribunal developed “an inquisitorial, non-legalistic, relational approach, responsive to both Māori and Pākehā concerns and aiming to find pragmatic solutions”.

‘The most dramatic case’

The tribunal issued four seminal reports in the mid-1980s that interpreted the meaning of te Tiriti in a contemporary context: a “comforting relational compromise”, Palmer and Knight say. While careful, the four reports were “increasingly assertive” in formulating an approach to interpreting te Tiriti. For the first decade of its existence, the tribunal was limited to making recommendations on contemporary breaches. But a re-elected Labour government in 1985 changed that, retrospectively extending the tribunal’s jurisdiction to examine alleged historical breaches.

At the same time, the government was working on embedding an understanding of the treaty within the public service. Sir Geoffrey Palmer, in his memoir Reform, writes that Cabinet in June 1986 agreed that all future legislation should draw attention to any implications for the recognition of the treaty. “It was quite a battle to get officials to stop ignoring the treaty. The whole culture of the public service had to be sensitised to Māori and treaty issues, and our position was that they could not be left only to the Ministry of Māori Affairs,” Sir Geoffrey writes.

Consequently, Labour started including treaty clauses in legislation, such as s 4 of the Conservation Act 1987, which states the statute’s interpretation and administration will “give effect to” the principles. Of the most consequence was s 9 of the State-Owned Enterprises Act 1986: “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”

The fourth Labour government’s policy agenda was radical. One was a fundamental restructuring of the organisation of government over forestry, electricity generation, mines, tracts of Crown land and the post office. In an urgent interim report on the government’s plans to transfer resources from the Crown to separate state-owned enterprises (SOEs), the tribunal suggested the honour of the Crown was at stake and recommended the Crown shouldn’t dispose of lands that were the subject of tribunal claims.

With some help, Sir Geoffrey devised what became s 9 of the SOE Act. Section 27 was also amended to explicitly protect tribunal claims filed before the Act received royal assent and recognise any tribunal recommendations after that date. After the SOE Act was passed, but before land was transferred to SOEs, the New Zealand Māori Council – a statutory body that represents and consults Māori – and its chair, Sir Graham Latimer (Ngāti Kahu), brought proceedings for a declaration to stop the transfer until arrangements were made to deal with Māori claims of those assets.

What followed has been described by Sir Geoffrey as “the most dramatic case on Māori issues ever decided by a New Zealand court up to that point”; by Palmer and Knight as “simply the most constitutionally significant court judgment in New Zealand’s history” and by Professor Jacinta Ruru as a landmark, unanimous decision comparable in its “ground-breaking aura” to other breakthrough indigenous rights decisions in Australia and Canada.

Tribunal influence

The significance of the 1987 case of New Zealand Māori Council v Attorney-General, commonly known as the Lands case, wasn’t lost on the Court of Appeal. Its president, Justice Robin Cooke (later Lord Cooke of Thorndon), was explicit: “This case is perhaps as important for the future of our country as any that has come before a New Zealand court.”

Echoing those words, Justice Ivor Richardson said the case was “of the greatest public importance” in its social impact on race relations. Together with Justices Edward Somers, Maurice Casey and Gordon Bisson, the court handed down a unanimous decision expressed in five judgments: transferring the assets to SOEs would be unlawful, on the basis of s 9, without a system to consider whether the transfer would be inconsistent with the treaty principles.

What were those principles in 1987? Given the lack of a legislated definition, the authority to interpret te Tiriti was given to the courts, which were empowered by the “prompt for litigation” contained in s 9, Palmer and Knight write. In doing so, Cooke P said the court should give “much weight” to the tribunal’s four cornerstone reports issued from 1983 to 1986. While the reports were not binding, they were “of great value”. In the 1983 Motunui-Waitara report, the tribunal described the treaty as representing “the gift of the right to make laws in return for the promise to do so as to acknowledge and protect the interests of the indigenous inhabitants”.

Two years later, in response to the Manukau claim, the tribunal for the first time described “an interest in partnership” that iwi had in the harbour: “Certainly something more than that of a minority section of the general public, more than just a particular interest in particular fishing grounds, but less than that of exclusive ownership. It is in the nature of an interest in partnership the precise terms of which have yet to be worked out.”

By 1986, a year before the Lands decision, the tribunal made a broad observation in the WAI 11 claim that recommended te reo Māori should be made an official language of New Zealand: “In its widest sense, the treaty promotes a partnership in the development of the country and a sharing of all resources.”

The treaty partnership

Cooke P summarised the principles as requiring “the Pākehā and Māori treaty partners to act towards each other reasonably and with the utmost good faith. That duty is no light one. It is infinitely more than a formality. If a breach of the duty is demonstrated at any time, the duty of the court will be to insist that it be honoured.”

The principles were to be applied, not the literal words of the treaty. As was well known, the two texts were not translations of one another and didn’t necessarily convey precisely the same meaning, Cooke P said. Their differences and the shades of meaning didn’t matter for the purposes of the case. “What matters is the spirit…The treaty has to be seen as an embryo rather than a fully developed integrated set of ideas. The treaty signified a partnership between the races, and it is in this concept that the answer to the present case has to be found.”

Later, Cooke P describes the partnership as creating responsibilities “analogous to fiduciary duties”. The duty to act reasonably and in the utmost good faith is not one-sided, he said, as Māori had sworn a duty of loyalty to the Queen, fully accepted her government and agreed to cooperate reasonably.

Justice Somers said te Tiriti must be viewed as a “solemn compact” between the Crown and Māori, and Casey J said inferring “something in the nature of a partnership” between the Crown and Māori in 1840 wasn’t difficult. Justice Bisson described the principles as “the foundation for the future relationship between the Crown and the Māori race”.

However, the court recognised that putting “such broad propositions into more concrete forms” was challenging. The New Zealand Māori Council advocated for 10 principles implicit in the terms of the treaty, including the duty to actively protect the Māori interest to the fullest extent practicable, the duty to consult, the duty to make good past breaches and the honour of the Crown.

The Attorney-General rejected the concept of implied principles and identified five of his own, including that the Crown should exercise the power of government, which also included the power to legislate for all matters relating to peace and good order and that Māori “chieftainship” over their lands, forests, fisheries and other treasures was not extinguished and would be protected and guaranteed.

There was “little similarity” between the parties’ proposed principles. On the duty to consult, for example, Cooke P said it was “elusive and unworkable” and questioned “exactly who should be consulted”. Richardson J had trouble accepting the Māori Council’s submission that the obligation to consult and be consulted stemmed from the obligation of good faith. “In truth, the notion of an absolute open-ended and formless duty to consult is incapable of practical fulfilment and cannot be regarded as implicit in the treaty,” the judge said.

Somers J said while each side was entitled to the other’s fullest good faith, “I would not go so far as to hold that each must consult with the other. Good faith does not require consultation although it is an obvious way of demonstrating its existence.”

‘Crisp’ principles

Guided by the court’s landmark decision, the parties negotiated a regime to protect Māori claims to the tribunal. The resultant Treaty of Waitangi (State Enterprises) Act 1988 enabled transfers of land to the SOEs to proceed on the condition the tribunal was empowered to mandate the land be returned, at market value, to the Crown to settle any treaty claim.

Further challenges were issued by Māori over Crown proposals to transfer coal, forestry and broadcasting assets to SOEs, and new forms of property rights in fisheries and radio frequencies were created. As Professor Ruru explains in In Good Faith, an article summarising a symposium in 2007 that marked the 20th anniversary of the Lands case, subsequent judicial decisions confirmed the underlying tenor of the Court of Appeal’s approach in 1987, “including respectfully not construing a finite list of treaty principles”. The approach was ultimately approved in the 1993 Broadcasting Assets case by the Privy Council.

Amid a flurry of court cases, Cabinet in the late 1980s adopted and published Principles for Crown Action on the Treaty of Waitangi, a clear statement of where the government stood so departments and agencies could have clarity. The five principles are:

• kāwanatanga (government), which recognises the cession of sovereignty and the government’s right to govern and make laws in exchange for protection of rangatiratanga;
• rangatiratanga (self-management). The second article of the treaty guarantees to iwi the control and enjoyment of taonga that they wish to retain. “This is the price the Crown paid for what it obtained in the first article”;
• equality, which recognises the guarantee in the third article of legal equality and the actual enjoyment of social benefits between Māori and other citizens of New Zealand. Legal equality means that “all New Zealand citizens are equal before the law” while the enjoyment of social benefits recognises that “where serious and persistent imbalances exist between groups in their actual enjoyment of social benefits, then government will consider particular measures to assist in redressing the balance”;
• reasonable co-operation, which states that the treaty is regarded by the Crown as establishing a fair basis for two peoples in one country. “Duality implies distinctive cultural development and unity implies common purpose and community”; and
• redress, in which the Crown ensures a process is provided for resolution of grievances arising from the treaty, be that through the courts, the tribunal or direct negotiation. Each principle was developed “crisply”, Sir Geoffrey writes, and was designed to give one treaty partner – the government – a place upon which to stand. “These principles are aimed to dispel doubt and remove confusion.”

Over the past 36 years, the tribunal and the courts have articulated an approach that emphasises the principles as important and developing. While there is no consensus on what the principles are, a common throughline does exist in te Tiriti jurisprudence: that the treaty forms a partnership based on a duty to act reasonably, honestly and in the utmost good faith – or you don’t trick each other, you don’t try to con each other. “You listen to each other but you don’t always agree,” says David Cochrane, a former partner at Chapman Tripp and Waitangi Tribunal member from 2014 to 2021. “And it [goes] each way, so it’s not just a case of the Crown has got to do all this. Māori have got to too.”

A 2001 guidebook from Te Puni Kōkiri entitled He Tirohanga ō Kawa ki te Tiriti o Waitangi outlines what the two bodies have said about partnership as well as the principles of reciprocity, mutual benefit, active protection, redress and the duty to make informed decisions.

‘Simply about respect’

There’s an acceptance that the lack of consensus is because the treaty is seen as still developing, “so the ‘principles’ are not constant and cannot be exhaustively identified”, Chapman Tripp states in a 2005 Counsel document (which Cochrane helped write). “Can it, therefore, be said that the principles of the treaty are undefined and ambiguous? If so, is there a problem that needs fixing? The principles are not, by their nature, capable of fixed definition and certainty. Should they therefore be denied the status of giving rise to enforceable rights?”

At the 20th anniversary symposium, Treaty Negotiations Minister Mark Burton reiterated the principles are not set in stone and that they may change as the treaty relationship evolves. “While there has been much debate and angst (particularly political) about the principles of the treaty, I suggest that it is not difficult to come to grips with what is meant by the principles of the treaty,” he said. “At their heart, I suggest they are quite simply about respect.”

Burton recognised the Lands judgment sat behind the creation of the very ministerial portfolio he then held. The decision gave the Crown and Māori the “ground rules” for their relationship, but its future would not lie in the courts. The future Crown-Māori relationship would be worked out “in face to face dialogue, in conversation and debate, and constructive engagement,” he said. This is true: the people LawNews has spoken to don’t all agree.

“This relationship will not stop when all historical claims have been settled. On the contrary, it will take on a new face and new strength, as Māori are better resourced to engage in this dialogue and can increasingly focus their energies on building their social, cultural and economic future,” Burton said. “This is the future we are committed to. This is the future, in no small way, underscored by the Court of Appeal’s landmark decision of June 29, 1987.” ■

Next week: What do the treaty principles mean in practice and are they still relevant? ■