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Appendix C

Treaty principles

C1 During the last two decades, Treaty jurisprudence has increased due to the establishment of the Waitangi Tribunal in 1975, followed by the enactment of the State-Owned Enterprises Act in 1986, and the first of the landmark Court of Appeal decisions in New Zealand Mäori Council v Attorney-General [1987] 1 NZLR 641.

C2 The history of the Treaty in the courts prior to these developments can be found in a number of sources, notably the appendix to volume 2 of Alan Ward’s National Overview, and in Spiller, Finn and Boast’s, A New Zealand History. Briefly, after some initial support for issues of native title (for example, R v Symonds (1847) NZPCC 388), the courts under Prendergast J, who was appointed Chief Justice in 1875, took the view that the Treaty did not create rights which might be confirmed in the courts, and that it was, in a famous description, a “simple nullity”: Wi Parata v The Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72. Over half a century later, in Te Heuheu Tukino’s case ([1941] NZLR 590; [1941] AC 308 (PC)), the Privy Council summed up the conventional legal position in holding that the Treaty could not be relied upon directly as a source of rights enforceable at law because it had not been incorporated by the legislature into domestic law.

C3 In 1986 the State-Owned Enterprises Act was enacted. Section 9 of that Act states that “[n]othing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”. The importance of this reference is that it has allowed Mäori to challenge with varying success, transfers of Crown assets such as land, forests, coal, broadcasting rights and fisheries on the basis that those transfers were inconsistent with the principles of the Treaty.

C5 The Conservation Act 1987 (s 4) and the Resource Management Act 1991 (s 8) are other statutes which refer to the “principles of the Treaty”. These Acts and the State-Owned Enterprises Act have required the courts to state what those principles are, starting with the 1987 New Zealand Mäori Council case and including further cases brought by the New Zealand Mäori Council in 1989, 1995 and 1996, by Mäori organisations including Mäori trust boards, and rünanga and by individuals.³³ The principles identified include “utmost good faith”, “a duty to consult”, and “partnership”. From these flow further principles such as those of the “freedom of the Crown to govern”, the “Crown’s duty to remedy past breaches of the Treaty”, the “Crown’s duty of active protection of Mäori interests” and Mäori rights to rangatiratanga and taonga.³⁴

C6 The Waitangi Tribunal has identified a number of principles relevant to justice and to the distribution of social, cultural and economic resources. It has made it clear that the Treaty of Waitangi is not only for Mäori, but for all New Zealanders. A mutual exchange to benefit the nation as a whole and at times requiring compromise to cope with the changing times. The principle “of paramount importance” was identified as reciprocity in the 1993 Mäori Development Corporation report (113). It was taken to mean

the exchange of the right to govern for the right of Mäori to retain their full tribal authority and control their lands, forests, fisheries and other valuable possessions for so long as they wished to retain them. It is clear that cession of sovereignty to the Crown by Mäori was conditional. It was qualified by the retention of tino rangatiranga. (Ngai Tahu Sea Fisheries Report, 269)

At least six other principles derived from Tribunal reports have proved important: partnership, recognition, active protection, options, autonomy, and development.

C8 The principle of partnership is probably the best known Treaty principle having been outlined by the Tribunal, the Court of Appeal in New Zealand Mäori Council v Attorney-General [1987] 1 NZLR 641 (CA), and the Royal Commission on Social Policy in the April Report.³⁵ As a minimum, the partnership principle anticipates a nation where Mäori and non-Mäori are participants at all levels of society, including decision-making, the delivery of services, and in employment and education. In 1988, and again in 1995, the Tribunal stated that:

The Treaty extinguished Mäori sovereignty and established that of the Crown. In so doing it substituted a charter, or a covenant in Mäori eyes, for a continuing relationship between the Crown and Mäori people, based upon their pledges to one another. It is this that lays the foundation for the concept of a partnership.³⁶

C9 The principle of recognition was discussed by the Tribunal in the Muriwhenua Land report. Mäori recognise and respect the Crown’s right to national governance, while the Crown “recognises and respects Mäori and their rangatiratanga by which is meant their laws, institutions and traditional authority”. This is an acknowledgement of New Zealand’s bicultural heritage and the maintenance of different traditions, processes and customs.

C10 Active protection, described by the Tribunal in a number of reports, is a principle which obliges the Crown to actively protect the interests of Mäori. The obligation arises not only in relation to the protection of physical assets but also in the reduction of disparities between Mäori and non-Mäori.

C11 The Muriwhenua Fishing report raised the principle of options. Acknowledging the nature of modern New Zealand, the Tribunal concluded that the Treaty gave Mäori individuals a choice whether to join the culture and lifestyle of non-Mäori, or to continue to live according to tikanga Mäori, or to walk in two worlds. In the access to justice context, the principle of options suggests choice of means of service delivery – whether a mainstream approach which includes services responsive to Mäori, for instance community-based services, or one premised specifically on tikanga Mäori, the kaupapa Mäori option.

C12 The principle of autonomy is discussed at length by the Tribunal in the Taranaki report Broadly, equivalent Mäori words are tino rangatiratanga and mana motuhake and, in the international context, aboriginal autonomy. The Tribunal defined autonomy for Mäori as “the right to manage their own policies, resources and affairs (within rules necessary for the operation of the State)” (Taranaki report 20) The implications for justice and social services are that there is a place for Mäori control and management of certain resources and services.

C13 The principle of development is touched on in early reports, and is clearly outlined in the Ngai Tahu Fisheries report where the Tribunal said that it was “common ground between the claimants, the Crown and the fishing industry that inherent in the Treaty of Waitangi is a right to development” (253–254). In the Mäori Development Corporation report the Tribunal noted that it had “no doubt that the Crown’s purpose in establishing and investing in the MDC was to promote the economic development of Mäori – all Mäori – in accordance with the Treaty of Waitangi” (36). The result for the justice sector is that there is room for the provision of assistance to support Mäori initiatives to reduce reliance on justice sector services (for instance in the sentencing area) and to encourage the provision of services for Mäori and developed by Mäori.