Made-Up Principles

The Principles of the Treaty of Waitangi Bill, introduced to the New Zealand House of Representatives on 14 November 2024, aims to fundamentally redefine the legal meaning and effect of New Zealand’s founding document, the Treaty of Waitangi.

Not only did the Bill spark remarkable protest in Parliament itself where Māori lawmakers used haka, a traditional Māori dance form, demonstrating strength and unity (the video went viral). It was also a key focus of what was likely the largest political protest ever seen at New Zealand’s Parliament, with 40,000-50,000 people descending on Parliament grounds and the surrounding streets on 19 November 2024. The Bill is so deeply controversial because it would mean a radical change to the way in which rights and obligations under the Treaty of Waitangi are recognised in New Zealand law.

The Treaty of Waitangi and its principles

The Treaty of Waitangi is an agreement between Māori and the British Crown, signed in 1840 by over 500 Māori leaders on behalf of their respective communities, and by William Hobson, on behalf of the Crown. The Declaration of Independence, signed by Māori leaders five years earlier, had made it clear that only Māori leaders, collectively, exercised sovereign authority in New Zealand. The Treaty of Waitangi creates space for the Crown to exercise governmental authority over the settler population, alongside continuing Māori authority. Consequently, the relationship established by the Treaty has been described as reflecting the sharing of public power between two spheres of influence and authority (Waitangi Tribunal, He Whakaputanga me Te Tiriti – The Declaration and the Treaty – The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry, WAI 1040, 2014).

However, after declaring sovereignty, in part, in reliance on the Treaty, the Crown went on to largely ignore, evade, or simply reject its obligations under the Treaty for over a hundred years.

It was not until the latter part of the 20th century that the New Zealand government began to take some tentative steps towards addressing its Treaty obligations. In 1975, the Waitangi Tribunal was established as a standing commission of inquiry to hear claims based on the Treaty. This was the first time that the concept of ‘the principles of the Treaty of Waitangi’ (as set out below) was used in legislation. Effectively, this was a direction for the Waitangi Tribunal to look at the key ideas that underpinned the treaty agreement. The Tribunal was established to inquire into claims that the principles of the Treaty of Waitangi had been breached and make appropriate findings and recommendations. The Treaty of Waitangi Act 1975, which created the Tribunal, did not define a set of principles to be applied, but rather left it to the Tribunal itself to identify relevant principles by reference to both the English and Māori language versions of the text of the Treaty.

The concept of the principles of the Treaty has subsequently been used in many other pieces of legislation, including the State-owned Enterprise Act 1986, the Conservation Act 1987, and the Resource Management Act 1991, which is the central piece of legislation governing environmental planning in New Zealand. These statutes, and others, require those exercising powers under the statute to exercise powers consistently with the principles of the Treaty, or to at least have regard to those principles. The ‘principles of the Treaty’ has become the government’s preferred mechanism for taking into account Treaty of Waitangi considerations.

Although there is no authoritative statutory list of Treaty principles, decades of application in the Waitangi Tribunal and the ordinary courts provide a very settled area of law. Of the key principles that have been identified and applied, I will set out six.

First, the Treaty established a partnership, and imposed on both Treaty partners an obligation ‘to act towards each other reasonably and with the utmost good faith’ (New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 (CA), p. 667). The principle of partnership is about the balancing of the concepts of kāwanatanga (governmental authority in relation to British subjects in New Zealand) and tino rangatiratanga (absolute chiefly authority).

Second, the Crown has positive obligations to uphold and fulfil the guarantee of tino rangatiratanga. The capacity of Māori to exercise authority over their own affairs ‘as far as practicable within the confines of the modern State’ is key to the active protection of tino rangatiratanga (Waitangi Tribunal, The Ngāpuhi Mandate Inquiry Report (2015), p 23).

Third, where there has been a breach of Treaty principles, there ought to be “a fair and reasonable recognition of, and recompense for, the wrong that occurred” (New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 (CA), p 693).

Fourth, the basic concept was that a place could be made for two people of vastly different cultures, of mutual advantage, and where the rights, values and needs of neither would necessarily be subsumed. However, it is obvious that achieving this objective will require compromises on both sides and maintaining a balance of interests (Waitangi Tribunal, Mangonui Sewerage Claim Report (1988), p 4).

Fifth, the Crown must adequately protect the availability and viability of kaupapa Māori solutions in the social sector as well as so-called mainstream services in such a way that Māori are not disadvantaged by their choice (Waitangi Tribunal, Hauora (2023), pp 35-36).

Sixth, the freedom from discrimination obliges the Crown to positively promote equity (Waitangi Tribunal, Hauora (2023), pp 33-35).

The Treaty of Waitangi Bill and its new principles

The Principles of the Treaty of Waitangi Bill now proposes to replace these settled principles with three newly imagined principles. These are set out in clause 6 of the Bill.

The main problem with the proposed principles is that they do not reflect the agreement made in the Treaty of Waitangi. The Bill presents an entirely false picture of the 1840 agreement. Ministry of Justice officials have advised the Minister that the policy underlying the Bill “relies on a novel reading of the Treaty/te Tiriti that is not supported by the available evidence”.

Under the Treaty, Māori leaders granted the British Crown the authority of kāwanatanga. This authority is limited by the ongoing exercise of Māori authority, guaranteed as tino rangatiratanga. The new ‘Principle 1’ proposed in the Bill ignores the guarantee of Māori authority by affording the Government of New Zealand the “full power to govern”, and the Parliament of New Zealand the “full power to make laws, in the best interests of everyone; and in accordance with the rule of law and the maintenance of a free and democratic society”.

The effect of the proposed ‘Principle 2’ also ignores the guarantee of Māori authority. According to Principle 2, the Crown only recognises, respects and protects the rights that hapū and iwi Māori had under the Treaty of Waitangi if those rights only if they have been agreed and legislated as part of a negotiated claims settlement. This newly created principle would mean that the Treaty offers no recognition or protection of Māori rights. Under that principle, Māori rights would depend on settlement legislation or recognition by some other instrument that applies to everyone. Not only does this subordinate Māori authority to governmental authority in a way that is contrary to the Treaty, but it erases the recognition of Māori rights altogether – contrary not only to the Treaty, but to international standards set out in the United Nations Declaration on the Rights of Indigenous Peoples.

The proposed ‘Principle 3’ also seeks to erase Māori from the Treaty although it guarantees “equality”. Article 3 of the Treaty is a promise, made specifically to Māori, that Māori would enjoy the rights and privileges of British subjects. The Treaty does not make such a promise to anyone else. There are, however, plenty of mechanisms within the New Zealand legal system that are aimed at protecting all citizens from discrimination and ensuring equality before the law. The new ‘Principle 3’ does not add anything to those protections. All it would do is remove a mechanism that would help Māori to enjoy the equal rights and equal protection of the law. The government’s own Ministry of Justice officials have advised that:

An interpretation […] that does not recognise the collective rights held by iwi and hapū [Māori kin-groups/peoples], or the distinct status of Māori as the indigenous people of Aotearoa New Zealand, would, in effect, just restate rights established elsewhere in law. This calls into question the very purpose of the Treaty/te Tiriti and its status in our constitutional arrangements.

The proposed principles are also completely different from the established principles that have been used for decades as the main way in which the government tries to give effect to its obligations under the Treaty.

The future of the Bill and of Māori rights

The coalition agreements state that the Government will support the Bill to pass the first reading stage. Two of the three parties in the coalition have stated that they do not support the Bill. The introduction of the Bill was agreed to as part of the coalition negotiations to form a government. Now that this stage is complete, there is no further commitment to support the enactment of the Bill. National and New Zealand First have indicated that they will vote against the Bill, so the Bill seems unlikely to pass. However, if it did pass, a referendum would be held that would ask voters whether they support the law. If a majority of voters agree, then the law will come into force six months later.

That would mean that the newly created principles in the Bill would replace the established principles. The new interpretation of the principles would apply whenever the concept of ‘the principles of the Treaty of Waitangi’ arises in the context of other legislation. This would create considerable legal uncertainty (Waitangi Tribunal, Ngā Mātāpono – The Principles, 2024, p 141). It is likely that prolonged and costly litigation would result as the meaning and application of these new principles are worked out.

The Bill has been the subject of much criticism. Church leaders have urged the Government not to pursue the policy, forty-two of the country’s senior barristers wrote to the Prime Minister and Attorney-General arguing that the Bill is constitutionally irresponsible and undermines “the basic principles which underpin New Zealand’s representative democracy”, and the Waitangi Tribunal has found that:

If this Bill were to be enacted, it would be the worst, most comprehensive breach of the Treaty/te Tiriti in modern times […]. If the Bill remained on the statute book for a considerable time or was never repealed, it could mean the end of the Treaty/te Tiriti.