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Principles of the Treaty of Waitangi

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Depiction of the signing of the Treaty on 6 February 1840
Depiction of the signing of the Treaty on 6 February 1840

The Principles of the Treaty of Waitangi (in Māori: ngā mātāpono o te tiriti), in New Zealand law and politics, are a set of principles derived from, and interpreting, the Treaty of Waitangi. They are partly an attempt to reconcile the different te reo Māori and English language versions of the Treaty, and allow the application of the Treaty to a contemporary context.[1]

The principles of the Treaty are often mentioned in contemporary New Zealand politics.[2]

Need for Treaty principles

The Treaty is not regarded as law because it is a treaty, not a law. Notwithstanding that, "the English and Māori versions are not exactly the same", and "it focuses on the issues relevant at the time it was signed."[3] As well as this, New Zealand law affirms the common law doctrine that "any rights purporting to be conferred by a treaty of cession cannot be enforced in the courts, except in so far as they have been incorporated in the municipal law".[4]

Origins of the principles

The principles originate from a case brought in the High Court by the New Zealand Māori Council (New Zealand Maori Council v Attorney-General[5]) in 1987. There was great concern at that time about the ongoing restructuring of the New Zealand economy by the then Fourth Labour Government, specifically the transfer of assets from former Government departments to State-owned enterprises. Because the state-owned enterprises were essentially private firms owned by the government, there was an argument that they would prevent assets which had been given by Māori for use by the state from being returned to Māori by the Waitangi Tribunal and through Treaty settlements. The Māori Council sought enforcement of section 9 of the State-Owned Enterprises Act 1986 which reads: "Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi".[6]

The Court of Appeal, in a judgement of its then President Sir Robin Cooke, decided upon the following Treaty principles:

  • The acquisition of sovereignty in exchange for the protection of rangatiratanga.
  • The Treaty established a partnership and imposed on the partners the duty to act reasonably and in good faith.
  • The freedom of the Crown to govern.
  • The Crown's duty of active protection.
  • The duty of the Crown to remedy past breaches.
  • Māori to retain rangatiratanga over their resources and taonga and have all citizenship privileges.
  • Duty to consult.

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High Court of New Zealand

High Court of New Zealand

The High Court of New Zealand is the superior court of New Zealand. It has general jurisdiction and responsibility, under the Senior Courts Act 2016, as well as the High Court Rules 2016, for the administration of justice throughout New Zealand. There are 18 High Court locations throughout New Zealand, plus one stand-alone registry.

New Zealand Māori Council

New Zealand Māori Council

The New Zealand Māori Council is a body representing and consulting the Māori people of New Zealand. The council is one of the oldest Māori representative groups. Recently, the council increased its focus on social challenges and issues that impact its constituents, with one example being the COVID-19 pandemic. It is now developing ideas and programs that reduce barriers faced by Maori.

New Zealand Maori Council v Attorney-General

New Zealand Maori Council v Attorney-General

New Zealand Maori Council v Attorney-General, also known as the "Lands" case or "SOE" case, was a seminal New Zealand legal decision marking the beginning of the common law development of the principles of the Treaty of Waitangi.

Fourth Labour Government of New Zealand

Fourth Labour Government of New Zealand

The Fourth Labour Government of New Zealand governed New Zealand from 26 July 1984 to 2 November 1990. It was the first Labour government to win a second consecutive term since the First Labour Government of 1935 to 1949. The policy agenda of the Fourth Labour Government differed significantly from that of previous Labour governments: it enacted major social reforms and economic reforms.

Court of Appeal of New Zealand

Court of Appeal of New Zealand

The Court of Appeal of New Zealand is the principal intermediate appellate court of New Zealand. It is also the final appellate court for a number of matters. In practice, most appeals are resolved at this intermediate appellate level, rather than in the Supreme Court. The Court of Appeal has existed as a separate court since 1862 but, until 1957, it was composed of judges of the High Court sitting periodically in panels. In 1957 the Court of Appeal was reconstituted as a permanent court separate from the High Court. It is located in Wellington.

Robin Cooke, Baron Cooke of Thorndon

Robin Cooke, Baron Cooke of Thorndon

Robin Brunskill Cooke, Baron Cooke of Thorndon was a New Zealand judge and later a British Law Lord and member of the Judicial Committee of the Privy Council. He is widely considered one of New Zealand's most influential jurists, and is the only New Zealand judge to have sat in the House of Lords. He was a Non-Permanent Judge of the Court of Final Appeal of Hong Kong from 1997 to 2006.

Taonga

Taonga

Taonga or taoka is a Māori-language word that refers to a treasured possession in Māori culture. It lacks a direct translation into English, making its use in the Treaty of Waitangi significant. The current definition differs from the historical one, noted by Hongi Hika as "property procured by the spear" [one could understand this as war booty or defended property] and is now interpreted to mean a wide range of both tangible and intangible possessions, especially items of historical cultural significance.

Fourth Labour Government's principles

In 1989, the Fourth Labour Government adopted the "Principles for Crown Action on the Treaty of Waitangi". Therese Crocker has argued that Labour's publication of the principles "comprised one of a number of Crown responses to what is generally known as the 'Maori Renaissance'."[7] Prime Minister David Lange, in an introduction to the document said of the principles that:

They [the principles] are not an attempt to rewrite the Treaty of Waitangi. These Crown principles are to help the Government make decisions about matters related to the Treaty. For instance, when the Government is considering recommendations from the Waitangi Tribunal.
I have said that the Treaty of Waitangi has the potential to be our nation's most powerful unifying symbol. I trust that these principles demonstrate that there is a place for all New Zealanders within the Treaty of Waitangi.[8]

The principles in the 1989 publication are as follow:

The Kawanatanga Principle – The Principle of Government

The first Article of the Treaty gives expression to the right of the Crown to make laws and its obligation to govern in accordance with constitutional process. This sovereignty is qualified by the promise to accord the Maori interests specified in the second Article an appropriate priority.[9]

This principle describes the balance between articles 1 and 2: the exchange of sovereignty by the Māori people for the protection of the Crown. It was emphasised in the context of this principle that "the Government has the right to govern and make laws".[10]

The Rangatiratanga Principle – The Principle of Self Management

The second Article of the Treaty guarantees to iwi Maori the control and enjoyment of those resources and taonga that it is their wish to retain. The preservation of a resource base, restoration of iwi self-management, and the active protection of taonga, both material and cultural, are necessary elements of the Crown's policy of recognising rangatiratanga.[11]

The Government also recognised the Court of Appeal's description of active protection, but identified the key concept of this principle as a right for iwi to organise as iwi and, under the law, to control the resources they own.

The Principle of Equality

The third Article of the Treaty constitutes a guarantee of legal equality between Maori and other citizens of New Zealand. This means that all New Zealand citizens are equal before the law. Furthermore, the common law system is selected by the Treaty as the basis for that equality although human rights accepted under international law are incorporated also.
The third Article also has an important social significance in the implicit assurance that social rights would be enjoyed equally by Maori with all New Zealand citizens of whatever origin. Special measures to attain that equal enjoyment of social benefits are allowed by international law.[12]

The Principle of Cooperation

The Treaty is regarded by the Crown as establishing a fair basis for two peoples in one country. Duality and unity are both significant. Duality implies distinctive cultural development and unity implies common purpose and community. The relationship between community and distinctive development is governed by the requirement of cooperation which is an obligation placed on both parties by the Treaty.
Reasonable cooperation can only take place if there is consultation on major issues of common concern and if good faith, balance, and common sense are shown on all sides. The outcome of reasonable cooperation will be partnership.[13]

The Principle of Redress

The Crown accepts a responsibility to provide a process for the resolution of grievances arising from the Treaty. This process may involve courts, the Waitangi Tribunal, or direct negotiation. The provision of redress, where entitlement is established, must take account of its practical impact and of the need to avoid the creation of fresh injustice. If the Crown demonstrates commitment to this process of redress then it will expect reconciliation to result.[14]

The Principles in legislation

The Treaty of Waitangi principles have impacted and enacted various legislation in particular issues in regards to property or land and many other social, legal and political aspects that affected one or more of the principles. The principles therefore have strong influence on not only the decision making of governments but also on laws.[15]

The following legislation were established due to a significant amount of influence by the Treaty of Waitangi principles and are only a few of many applications of principles within laws:

  • Fisheries Act 1983
  • Environment Act 1986
  • State Owned Enterprises Act 1986
  • Conservation Act 1987
  • Resource Management Act 1991
  • Crown Minerals Act 1991
  • Marine and Coastal Area (Takutai Moana) Act 2011

Opposition to the principles

Principles Deletion Bill, 2005

The "Principles of the Treaty of Waitangi Deletion Bill" was introduced to the New Zealand Parliament in 2005 as a private member's bill by New Zealand First MP Doug Woolerton. "This bill eliminates all references to the expressions "the principles of the Treaty", "the principles of the Treaty of Waitangi" and the "Treaty of Waitangi and its principles" from all New Zealand Statutes including all preambles, interpretations, schedules, regulations and other provisos included in or arising from each and every such Statute".[16]

At the first reading of the Bill, New Zealand First leader Winston Peters said:

this is not an attack on the treaty itself, but on the insertion of the term "the principles of the Treaty" into legislation.
...
This bill seeks to do three fundamental things. First, as the bill's title implies, it seeks to remove all references to the undefined and divisive term "the principles of the Treaty of Waitangi" from legislation. Second, it seeks to reverse the insidious culture of division that has grown up around the existence of these principles. It has seen Māori pitted against Māori and non-Māori, seen family members pitted against each other, and gone right to the heart of our social fabric. Finally, the bill aims to put an end to the expensive and never-ending litigious programme that has sprung up around these principles. This programme has diverted hundreds of millions of dollars into dead-end paths and away from the enlightened programmes that are the true pathway to success.[17]

The bill failed to pass its second reading in November 2007.[18]

In a legal analysis of the bill for Chapman Tripp, David Cochrane argued that without the principles it would probably be an "impossible task" for the Waitangi Tribunal to carry out its role.[1]

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Private member's bill

Private member's bill

A private member's bill is a bill introduced into a legislature by a legislator who is not acting on behalf of the executive branch. The designation "private member's bill" is used in most Westminster system jurisdictions, in which a "private member" is any member of parliament (MP) who is not a member of the cabinet (executive). Other labels may be used for the concept in other parliamentary systems; for example, the label member's bill is used in the Scottish Parliament and the New Zealand Parliament, the term private senator's bill is used in the Australian Senate, and the term public bill is used in the Senate of Canada. In legislatures where the executive does not have the right of initiative, such as the United States Congress, the concept does not arise since bills are always introduced by legislators.

New Zealand First

New Zealand First

New Zealand First, commonly abbreviated to NZ First, is a nationalist and populist political party in New Zealand. The party formed in July 1993 following the resignation on 19 March 1993 of its leader and founder, Winston Peters, from the then-governing National Party. Peters had been the sitting Member of Parliament for Tauranga since 1984 and would use the electorate as the base for New Zealand First until consecutive defeats by National Party candidates in 2005 and 2008. His party has formed coalition governments with both major political parties in New Zealand: first with the National Party from 1996 to 1998 and then with the Labour Party from 2005 to 2008 and from 2017 to 2020. Peters has served on two occasions as deputy prime minister.

Doug Woolerton

Doug Woolerton

Doug Woolerton is a New Zealand politician who has been a member of the New Zealand First party since it was founded, and the National Party for a few years before that.

Winston Peters

Winston Peters

Winston Raymond Peters is a New Zealand politician serving as the leader of New Zealand First since its foundation in 1993. Peters served as the 13th deputy prime minister of New Zealand from 1996 to 1998 and 2017 to 2020, the minister of Foreign Affairs from 2005 to 2008 and 2017 to 2020, and the treasurer of New Zealand from 1996 to 1998. He was a Member of Parliament (MP) from 1979 to 1981, 1984 to 2008 and 2011 to 2020.

Source: "Principles of the Treaty of Waitangi", Wikipedia, Wikimedia Foundation, (2023, January 25th), https://en.wikipedia.org/wiki/Principles_of_the_Treaty_of_Waitangi.

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Notes
  1. ^ a b Cochrane, David (5 May 2005). "What are the principles of the Treaty of Waitangi? What should the law do about them?". Chapman Tripp. Retrieved 16 February 2015.
  2. ^ He Tirohanga ō Kawa ki te Tiriti o Waitangi: a guide to the principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal (PDF). Te Puni Kokiri. 2001. ISBN 0-478-09193-1. Archived from the original (PDF) on 18 February 2013. Retrieved 12 August 2012.
  3. ^ Hayward, Janine (October 2014). "Story: Principles of the Treaty of Waitangi – ngā mātāpono o te tiriti". Te Ara. Retrieved 16 February 2015.
  4. ^ "Te Heuheu Tukino v Aotea District Maori Land Board (PC) [1941] NZLR 590". www.nzlii.org. Retrieved 30 August 2020.{{cite web}}: CS1 maint: url-status (link)
  5. ^ New Zealand Māori Council v. Attorney-General [1987] 1 NZLR 641.
  6. ^ "State-Owned Enterprises Act 1986". Parliamentary Counsel Office. Retrieved 12 August 2012.
  7. ^ Crocker, Therese, "Introduction" in Principles of the Treaty for Crown Action, p 5
  8. ^ Principles of the Treaty for Crown Action, p 1
  9. ^ Principles of the Treaty for Crown Action, p 9
  10. ^ Principles of the Treaty for Crown Action, p 7
  11. ^ Principles of the Treaty for Crown Action, p 10
  12. ^ Principles of the Treaty for Crown Action, p 12
  13. ^ Principles of the Treaty for Crown Action, p 14
  14. ^ Principles of the Treaty for Crown Action, p 15
  15. ^ Mark Hickford, 'Law of the foreshore and seabed', Te Ara - the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/law-of-the-foreshore-and-seabed (accessed 28 May 2018)
  16. ^ "Doug Woolerton's Principles of the Treaty of Waitangi Deletion Bill". New Zealand First. Archived from the original on 1 July 2007. Retrieved 13 June 2007.
  17. ^ "Principles of the Treaty of Waitangi Deletion Bill – First Reading". New Zealand Parliament. Retrieved 6 February 2015.
  18. ^ "New Zealand Parliament – Principles of the Treaty of Waitangi Deletion Bill". Parliament.nz. 7 November 2007. Retrieved 1 November 2011.
References
  • Principles for Crown Action on the Treaty of Waitangi, 1989. Wellington: Treaty of Waitangi Research Unit, Victoria University of Wellington. 2011.
External links

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