Treaty principles have been in the news a lot in the last few months – but what are they and how do they differ from Te Tiriti | the Treaty itself? The Spinoff published its own explainer in the lead up to Waitangi Day 2024. Their article mostly focused on ‘the three Ps’ (more on those in a minute) and didn’t really go into the origins of Treaty principles in Court and Waitangi Tribunal jurisprudence on Tiriti | Treaty matters. Be warned: this is going to get a bit technical ….
Basically, because there are two versions of te Tiriti | the Treaty, when Parliament began to refer to it in legislation from the 1970s it wanted to find a way to bring the different meanings together and to be able to apply them to contemporary circumstances. This is why initial references in legislation are to ‘the principles of the Treaty’ rather than to the texts themselves. In NZ Maori Council v Attorney-General (also known as the Broadcasting Assets case) in the Court of Appeal in 1992, Justice McKay noted:
It is the principles of the Treaty which are to be applied, not the literal words. The English and Māori texts in the first schedule to the Treaty of Waitangi Act 1975 are not translations the one of the other, and the differences between the texts and shades of meaning are less important than the spirit.
Under the Treaty of Waitangi Act 1975, to which Justice McKay referred, the Waitangi Tribunal was given ‘exclusive authority’ ‘to determine the meaning and effect of the Treaty as expressed in the two texts and to decide issues raised by the differences between them. The 1975 Act establishing the Tribunal was, in fact, the first piece of legislation to refer to ‘the principles of the Treaty’. Academic Janine Hayward notes that the Tribunal:
has the authority to establish the benchmarks against which action is judged, and has the capacity, through its interpretations of the Treaty, to make findings as to whether the Crown has breached Treaty principles. It is then left to the Crown’s discretion whether it accepts those recommendations.
(Janine Hayward, ‘Flowing from the Treaty’s Words: the principles of the Treaty of Waitanigi’, p 1)
Treaty principles also encompass the Treaty jurisprudence developed by the Courts, which have delivered some landmark decisions on Treaty matters since the mid-1980s as a result of legislative references to Treaty principles (including in section 9 of the State-Owned Enterprises Act 1986, which was invoked when the government of the day began selling off State assets).
A series of six cases between 1987 and 1995 set out what Treaty principles were in respect of lands, forests, coal, broadcasting, radio spectrum and whale-watching. The first of these was NZ Maori Council v Attorney-General (also known as the Lands case) in 1987. In the Lands case, the Court of Appeal found that the Treaty created a relationship ‘akin to partnership’ between Māori and the Crown. Furthermore, both partners had a duty to act towards each ‘reasonably and with the utmost good faith’.
Other important statements the Court of Appeal has made in respect of te Tiriti | the Treaty are:
- the protective duty of the Crown was not just passive but extended to active protection of Māori in the use of their lands and waters ‘to the fullest extent practicable’.
- the government needed to make informed decisions in any matters related to the Treaty
- the Crown should remedy past grievances, where the Waitangi Tribunal ‘finds merit in a claim and recommends redress’. (Janine Hayward, ‘Principles of the Treaty of Waitangi’, Te Ara)
The Court of Appeal also found that the Crown had a ‘right to govern’ and to make laws having regard to the community as a whole, as well as the ‘economic and other needs of the day’.
In the Tribunal’s substantial work since 1975, they have developed Treaty principles from the two language versions to examine the issues before them. As the Tribunal itself notes, it:
does not have a single set of treaty principles that are to be applied in assessing each claim. Over the years, however, some core principles have emerged from Tribunal reports, which have been applied to the varying circumstances raised by the claims.
Often-invoked principles in Tribunal are the principles of partnership, active protection and redress. These principles have been discussed and refined over several Waitangi Tribunal reports, since the 1970s. Here’s a summary:
- Partnership: The Tribunal’s view of partnership emphasises the obligation on both parties to act reasonably, honourably, and in good faith as duties derived from the principles of reciprocity and mutual benefit. Integral to the Tribunal’s understanding are the following concepts: the status and accountability of the Treaty partners, the need for compromise and a balancing of interests, the Crown’s fiduciary duty, and the duty to make informed decisions. (He Tirohanga, p 80)
- Active protection: The Tribunal’s conception of Māori interests to be protected go beyond property and encompass tribal authority, Māori cultural practices and Māori themselves, as groups and individuals. This is a positive and proactive duty on the Crown. (He Tirohanga, pp 95-7)
- Redress: The Crown has an obligation to remedy past breaches of the Treaty, arising from its duty to act reasonably and in good faith as a Treaty partner. In considering a variety of claims, the Tribunal has emphasised that redressing Treaty grievances is necessary to restore the honour and integrity of the Crown, and should serve to restore the mana and status of Māori. (He Tirohanga, p 103)
There are several other principles in addition to these, including the principles of equity, options, consultation, development, and mutual benefit. Hayward provides a useful summary table here.
In order to develop these principles, the Tribunal has drawn on a variety of evidence, including the circumstances, philosophies and intentions informing te Tiriti | the Treaty. More recently, international human rights instruments, such as the 2007 UN Declaration on the Rights of Indigenous Peoples, have informed both the Tribunal and the Courts’ evolving thinking in this area.
In 2001, Te Puni Kōkiri helpfully put together a compilation of all the Tribunal and Courts’ findings on Treaty principles to date He Tirohanga ō Kawa ki te Tiriti o Waitangi: the principles of the Treaty of Waitangi as expressed by the courts and the Waitangi Tribunal. It’s getting a bit long in the tooth now, but is still well worth a read to get a sense of where the discourse on Treaty principles has come from. As Hayward has noted ‘there is no final and complete list’ of Treaty principles.
It’s also worth pointing out that when te Tiriti | the Treaty is referred to in New Zealand law it is often still in reference to ‘the principles of the Treaty of Waitangi’ or ‘the Treaty of Waitangi and its principles’ – although there has been a move away from this in more recent times towards stating what te Tiriti | the Treaty means in the area governed by the legislation. Treaty settlement legislation, for example, includes acknowledgements by the Crown that certain of its actions (e.g. wars and land confiscations) and omissions (e.g. failing to prevent Māori becoming landless) have ‘breached the Treaty of Waitangi and its principles’. Indeed, the settlement process is a way of enacting one of the key Treaty principles, that of redress (not, it must be noted, compensation). We’ll look further at the Treaty settlement process in a future post.
To make things even more complicated, the Treaty principles established by the Tribunal are not quite the same as the Treaty principles often referred to and used in government. You may have heard of ‘the three Ps’ – partnership, participation and protection – which are sometimes used in government (and are referred to as the Treaty principles in the Spinoff article linked above). The ’three Ps’, while not dissimilar to those developed by the Courts and Tribunal, actually have their origin in the Royal Commission on Social Policy established in 1986 and reporting in 1988. There has been considerable development in Treaty principles jurisprudence since then.
‘The three Ps’ are often referred to in education and one source of online guidance explains them in this way:
- Partnership means ‘working together with iwi, hapū, whānau and Māori communities to develop strategies for Māori education’.
- Protection means ‘actively protecting Māori knowledge, interests, values, and other tāonga. Identity, language, and culture are important expressions of what it means to be a culturally located learner’.
- Participation means ‘Māori involvement at all levels of education’, including home-school relationships.
They were also widely used in the health sector, and their use came in for criticism from the Tribunal in its Hauora report of 2019. The Tribunal commented that ‘contemporary thinking on Treaty principles has moved on significantly from the ”three Ps” approach favoured in the health sector’. Even the Crown, via its lawyers, acknowledged the ‘three Ps’ reflected a ‘reductionist view’ of te Tiriti | the Treaty. The Tribunal observed that ‘working together’ in the health sector did not constitute a Treaty partnership, for example, when it only amounted to influencing or sometimes participating in decisions, but not actually making them. (Hauora report, pp 79-80).
Treaty principles have been critiqued as not going far enough and of diluting te Tiriti’s guarantee of tino rangatiratanga. Like te Tiriti | the Treaty itself, however, Treaty principles relate to the relationship between iwi, hapū, Māori and the Crown (whose functions are exercised by the government of the day). What Treaty principles defined by the Tribunal and the Courts – and even, to some extent, those expressed in the ‘three Ps’ – have in common is that they invoke the ‘spirit of the Treaty’ in good faith: there is a reasoned and faithful relationship between te Tiriti | the Treaty and its principles. I’ll leave it up to you to decide whether the current attempt at re-definition continues that tradition.
Next up, we’re going to consider who or what ‘the Crown’ is in relation to te Tiriti | the Treaty. I’ve said it is represented by the government of the day – which it is – but it’s also a bit more complicated than that (isn’t it always?!)
In Good Faith 