The Treaty of Waitangi, signed in 1840 between Māori and the British Crown, is not law, but since 1975 many New Zealand laws have referred to the principles of the treaty. The first law to do so was the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal. The act says that Māori can bring a claim to the tribunal about a Crown policy or practice (amongst other things) which was or is ‘inconsistent with the principles of the Treaty’.
Since the 1975 act there have been many other official references to treaty principles, all attempting to define the meaning of the Treaty of Waitangi in contemporary New Zealand society. Treaty principles have been referred to in:
There is no final and complete list of treaty principles. Instead, official documents have referred to treaty principles in general terms, without including the actual treaty text, because the English and Māori versions of the treaty are not direct translations of each other, so difficulties arise in interpretation. In 1983 the Waitangi Tribunal said, ‘The spirit of the Treaty transcends the sum total of its component written words and puts literal or narrow interpretations out of place.’1
In 1987 Justice Robin Cooke described the treaty as ‘an embryo, rather than a fully developed and integrated set of ideas … the principles of the Treaty of Waitangi … are taking effect only slowly but nevertheless surely. It is as well to stress also that they are of limited scope.’2
Another reason the treaty text is not included in official documents is that the treaty was signed in 1840, and its words reflect the issues relevant to the treaty partners, Māori and the Crown, at that time. In order to apply the treaty in a context relevant to the Crown and Māori in the present day, the Waitangi Tribunal and the courts have considered the broad sentiments, intentions and goals of the treaty, and identified its principles on a case-by-case basis. Some of these principles have become very well established. Others have developed over time. Some principles have been quite controversial.
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:
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:
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
Since the Treaty of Waitangi Act 1975 various other laws have identified, repeated and developed the principles of the Treaty of Waitangi. In 2011 over 30 pieces of legislation referred to the principles of the treaty. Most of those acts related to natural resources, but a few, like the Education Act 1989, were about social policy.
Examples of references to treaty principles in laws included:
The Fisheries Act 1983 included a provision that, under the Treaty of Waitangi, nothing in the act should affect any Māori fishing rights. In 1990 Te Rūnanga o Muriwhenua, representing a group of Far North tribes, claimed in court that the quota management system introduced in 1986 to manage commercial fishing rights breached this provision. The Court of Appeal upheld the rūnanga’s case, describing the treaty as a living instrument that needed to take into account the developing realities of life in present-day New Zealand. For example, the overfishing of traditional Māori fishing grounds had created a situation not foreseen at the time of the treaty.
In 1991 the Waitangi Tribunal reported on a claim dealing with historic grievances by the South Island iwi Ngāi Tahu.
The Ngāi Tahu claim to the Waitangi Tribunal was known as the ‘nine tall trees’, referring to the nine main claims Ngāi Tahu made against the Crown. In its report on the claim, the tribunal cited an opinion that the courts could possibly apply the principles of the treaty even when they were not referred to in specific laws, since ‘those principles had become part of the fabric of New Zealand society, of the way in which New Zealand thought about itself.’1
The three-volume Ngāi Tahu report drew on the 1987 lands case and extended its discussion of treaty principles. The report produced a comprehensive framework of principles that reappeared in some form in other tribunal reports over many years.
In the Ngāi Tahu report, the tribunal talked about the overarching ‘principle of exchange’ which it regarded as the fundamental compact embodied in the treaty. Inherent in this principle of exchange is the notion of reciprocity – ‘the exchange of the right to govern for the right of Maori to retain their full tribal authority and control over their lands and all other valued possessions’.2
The Waitangi Tribunal has also identified other treaty principles:
In 1989 the fourth Labour government became the first New Zealand government to set out principles to guide its actions on matters relating to the treaty.
These principles were:
By 2011 no later government had defined any new treaty principles, although some (like the National government in 1991) have reflected on the 1989 principles.
Some Māori criticised the 1989 government treaty principles as a ‘unilateral attempt to rewrite the Treaty’. But Prime Minister David Lange defended the principles, saying that they were ‘to help the government make decisions about matters related to the Treaty.’1
When the principles of the treaty were first included in legislation in 1975, one member of Parliament predicted that they would create ‘debate, dissention and even divisiveness’ in New Zealand.2 Indeed, the principles of the treaty have been the subject of debate. In 2006 the New Zealand First party introduced the Principles of the Treaty of Waitangi Deletion Bill 2006. The bill sought ‘to correct an anomaly that has harmed race relations in New Zealand since 1986 when the vague term “the principles of the Treaty of Waitangi” was included in legislation.’ This bill was defeated and references to the treaty principles remained in New Zealand law. The Waitangi Tribunal and courts continue to define the principles of the Treaty of Waitangi.
Hayward, Janine. ‘Flowing from the Treaty’s words: the principles of the Treaty of Waitangi.’ In The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi, edited by Janine Hayward and Nicola Wheen, 29–40. Wellington: Bridget Williams Books, 2004.
Hayward, Janine. ‘The principles of the Treaty of Waitangi.’ In National overview Vol. 2, edited by Alan Ward, 475–494. Wellington: Waitangi Tribunal and GP Publications, 1997.
McHugh, Paul G. ‘”Treaty principles”: constitutional relations Inside a conservative jurisprudence.’ Victoria University Law Review 39, no. 1 (2008): 39–72.
Palmer, Matthew. The Treaty of Waitangi in New Zealand’s law and constitution. Wellington: Victoria University Press, 2008.
Principles for Crown Action on the Treaty of Waitangi, 1989. Wellington: Treaty of Waitangi Research Unit, Historical Documents Series (H06), 2011.