Skip to main content
Logo: Te Ara - The Online Encyclopedia of New Zealand. Print all pages now.

Principles of the Treaty of Waitangi – ngā mātāpono o te tiriti

by Janine Hayward

In the late 20th century judges, the government and the Waitangi Tribunal began to hammer out the principles of the Treaty of Waitangi. The treaty is deemed to bind Māori and Pākehā New Zealanders in a partnership in which they must act reasonably and with utmost good faith.


What are the treaty principles?

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:

  • court cases
  • new laws
  • Waitangi Tribunal findings
  • a 1989 government statement.

No final and complete list

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

Slow principles

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.

Footnotes
    • Waitangi Tribunal, Report of the Waitangi Tribunal on the Motunui-Waitara claim. Wellington: Department of Justice, 1983, p. 47. Back
    • Tainui Maori Trust Board v Attorney-General. New Zealand Law Reports (1987): 527. Back

Treaty principles developed by courts

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.

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

Footnotes
    • New Zealand Maori Council v Attorney-General. New Zealand Law Reports 1 (1987): 643. Back
    • New Zealand Law Reports 1 (1987): 642. Back
    • New Zealand Law Reports 1 (1987): 664. Back
    • New Zealand Law Reports 1 (1987): 664–65. Back
    • New Zealand Law Reports 1 (1987): 665–66. Back
    • New Zealand Law Reports 1 (1987): 716. Back
    • Taiaroa v Minister of Justice unreported, 29 August 1994, McGechan J, HC Wellington cp 99/94, p. 69. Back

Treaty principles developed through laws

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:

  • ‘In the management of natural and physical resources, full and balanced account is taken of (amongst other things) the principles of the Treaty of Waitangi’ (Environment 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’ (State Owned Enterprises Act 1986).
  • ‘This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi’ (Conservation Act 1987).
  • All ‘persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)’ (Resource Management Act 1991).
  • ‘All persons exercising functions and powers under this Act shall have regard to the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)’ (Crown Minerals Act 1991).

Fisheries Act

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.


Treaty principles developed by the Waitangi Tribunal

Ngāi Tahu report

In 1991 the Waitangi Tribunal reported on a claim dealing with historic grievances by the South Island iwi Ngāi Tahu.

Part of the fabric

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 1991 the Tribunal said, ‘The cession by Maori of sovereignty to the Crown was in exchange for the protection by the Crown of Maori rangatiratanga’.3
  • The principles of partnership and good faith relate closely to the principle of exchange. The treaty is a partnership between Māori and the Crown, which requires the partners to act toward each other ‘reasonably and with the utmost good faith.’4
  • Active Crown protection of Māori interests means that the Crown cannot protect Māori by avoiding actions that breach the treaty. Instead, the Crown must act to protect Māori treaty rights, in order to honour the treaty. The tribunal has said that ‘the word “guarantee” meant more than merely leaving the Maori people unhindered in their enjoyment of language and culture. It required active steps to be taken to ensure that the Maori people have and retain the full exclusive and undisturbed possession of their language and culture.’5
  • The Crown fiduciary duty developed in the 1990s when the Crown made decisions relating to assets such as radio broadcasting and energy. In this case, a fiduciary relationship is when a junior partner (Māori) trusts the more senior partner (the Crown) to act in their best interests. The tribunal has said, ‘Because the Crown is in the more powerful position as the government in this partnership, the Crown has a fiduciary obligation to protect Maori interests.’6
  • The principle of options means that Māori can pursue a direction based on personal choice. The tribunal has explained that the treaty protected traditional Māori rights, and also gave Māori the rights of British subjects. As a result, Māori have the option to operate in one or other world, or to ‘walk in two worlds’.7 Most importantly, Māori should choose this for themselves.
  • The consultation principle has developed over time. Originally the tribunal regarded it as a courtesy for the Crown to consult Māori, but in later years this strengthened into a view that the Crown had a duty to consult Māori. In 1999 the tribunal said, ‘Consultation between Treaty partners acting reasonably and with the utmost good faith to one another required, in our view, fully fledged discussion … with every attempt to find an agreed position that is in accord with Treaty principles.’8
  • The development principle is about the extent to which the treaty can be applied to resources and technologies that were unknown to the treaty partners in 1840. In 1993 the tribunal said that Māori interests in resources could not be constrained to traditional or pre-treaty technology, but included the right to develop resources for economic benefit. But the tribunal set limits to the development principle in 1995 with the kiwifruit claim, saying, ‘It would, in our view, be an unjustified straining of Treaty principles to hold that the right to develop … a treasure could extend all the way to the modern kiwifruit export trade.9
Footnotes
    • Quoted in W. H. Oliver, Claims to the Waitangi Tribunal. Wellington: Department of Justice, 1991, p. 81. Back
    • Waitangi Tribunal, Report of the Waitangi Tribunal on claims concerning the allocation of radio frequencies. Wellington: Brooker and Friend, 1990, p. 237. Back
    • Waitangi Tribunal, The Ngai Tahu report 1991. Vol. 1. Wellington: Brooker and Friend, 1991, p. 236. Back
    • The Ngai Tahu report 1991, Vol. 1, pp. 242–243. Back
    • Waitangi Tribunal, Report of the Waitangi Tribunal on the Orakei claim. Wellington: Brooker and Friend, 1987, p. 135. Back
    • Waitangi Tribunal, Te Maunga Railways Land report. Wellington: Brooker’s, 1994, pp. 67–68. Back
    • Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua fishing claim. Wellington: Department of Justice, 1988, p. 195. Back
    • Waitangi Tribunal, Radio Spectrum Management and Development final report. Wellington: Brooker’s, 1999, pp. 38–39. Back
    • Waitangi Tribunal, Kiwifruit marketing report 1995. Wellington: Brooker’s, 1995, p. 14. Back

Treaty principles developed by the Crown

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:

  • the government has the right to govern and make laws
  • iwi have the right to organise as iwi, and, under the law, to control their resources as their own
  • all New Zealanders are equal before the law
  • both the government and iwi are obliged to accord each other reasonable cooperation on major issues of common concern
  • the government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.

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.

Treaty help

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

Debating treaty principles

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.

Footnotes
    • Quoted in Matthew Palmer, The Treaty of Waitangi in New Zealand’s law and constitution. Wellington: Victoria University Press, 2008, p. 139. Back
    • New Zealand Parliamentary Debates (Hansard), 1975, No. 33, p. 4,345. Back

External links and sources

More suggestions and sources

More links and websites


How to cite this page: Janine Hayward, 'Principles of the Treaty of Waitangi – ngā mātāpono o te tiriti', Te Ara - the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/principles-of-the-treaty-of-waitangi-nga-matapono-o-te-tiriti/print (accessed 23 April 2019)

Story by Janine Hayward, published 20 Jun 2012