Lands case, 1987
A court case in 1987 was the first to define treaty principles in some detail. 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. To answer that question the court had to decide what those principles were. A judge in the case, Justice Robin Cooke, described the 1987 lands case as ‘perhaps as important for the future of our country as any that has come before a New Zealand Court.’1 The court’s judgment became a precedent for later judgments and Waitangi Tribunal reports.
Some of the treaty principles identified by the 1987 lands case were:
- The duty to act reasonably and in good faith – the treaty ‘signified a partnership between Pakeha and Maori requiring each other to act towards the other reasonably and with the utmost good faith’.2
- Active Crown protection of 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’.3
- The government should make informed decisions – the Court of Appeal 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.
- 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’.4
- 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’.5 Another Judge in the case, Gordon Bisson, said it was ‘in accordance with the principles of the Treaty that 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’.6
Other court cases
Since the 1987 lands case, other court cases have also identified, reiterated and developed the principles of the Treaty of Waitangi. Some of these cases include:
- New Zealand Maori Council v Attorney-General 1989, which related to forests.
- Tainui Maori Trust Board v Attorney-General 1989, which related to coal.
- New Zealand Maori Council v Attorney-General 1991, which related to the radio spectrum.
- New Zealand Maori Council v Attorney-General 1992, which related to broadcasting assets.
- Nga Tahu Maori Trust Board v Director-General of Conservation 1995, which related to commercial whale-watching.
In 1994 a High Court judge said that ‘there is no doubt Treaty principles impose a positive obligation on the Crown, within constraints of the reasonable, to protect the position of Maori under the Treaty’.7
In 1996, New Zealand established the Environment Court, which deals mostly with issues arising from the Resource Management Act 1991, an act including a provision relating to the principles of the Treaty of Waitangi. The Environment Court has made many findings relating to local government decisions and has emphasised the Crown’s duty to consult Māori under section 8 of the act.