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Principles of the Treaty of Waitangi: Difference between revisions





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{{Use New Zealand English|date=October 2017}}
{{Use dmy dates|date=November 2023}}[[File:Reconstruction of the Signing of the Treaty of Waitangi, Marcus King (16044258961).jpg|thumb|upright=1.3|Depiction of the signing of the treaty on 6 February 1840]]
In [[Law of New Zealand|New Zealand law]] and politics, the '''principles of the Treaty of Waitangi''' ({{Lang-mi|'''ngā mātāpono o te tiriti'''}}) areis a phrase used in the [[Treaty of Waitangi Act 1975]]. It is a set of principles derived from, and interpreting, the [[Treaty of Waitangi]]. These principles were codified in 1987, partly an attempt to reconcile the different Māori and English language versions of the treaty, and allow the application of the treaty to a contemporary context.<ref name="ChapmanTripp">{{cite web | url=http://www.chapmantripp.com/publications/Pages/What-are-the-principles-of-the-Treaty-of-Waitangi-What-should-the-law-do-about-them.aspx |archive-url=https://web.archive.org/web/20150206035142/https://chapmantripp.com/publications/Pages/What-are-the-principles-of-the-Treaty-of-Waitangi-What-should-the-law-do-about-them.aspx| title=What are the principles of the Treaty of Waitangi? What should the law do about them? | work=Chapman Tripp | date=5 May 2005 |archive-date=6 February 2015 | accessdate=16 February 2015 | author=Cochrane, David}}</ref>
 
The principles of the treaty are often mentioned in contemporary New Zealand politics.<ref>{{cite book |title=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 |publisher=Te Puni Kokiri |year=2001 |url=http://www.tpk.govt.nz/en/in-print/our-publications/publications/he-tirohanga-o-kawa-ki-te-tiriti-o-waitangi/download/tpk-treatyoverview-2001-en.pdf |accessdate=12 August 2012 |isbn=0-478-09193-1 |archive-url=https://web.archive.org/web/20130218035958/http://www.tpk.govt.nz/en/in-print/our-publications/publications/he-tirohanga-o-kawa-ki-te-tiriti-o-waitangi/download/tpk-treatyoverview-2001-en.pdf |archive-date=18 February 2013 |url-status=dead }}</ref>
 
==The Treaty of Waitangi Act 1975==
 
The [[Treaty of Waitangi Act 1975]] introduced the phrase '''principles of the Treaty of Waitangi'''. It is found twice in the long title of the Act, in the preamble, and also in Section 6(1) which provides for the Waitangi Tribunal to inquire into claims by Maori that they are prejudicially affected by Crown acts (or omissions) that are inconsistent with the principles of the Treaty of Waitangi.<ref>{{cite web |title=Section 6(1) of the Treaty_of_Waitangi_Act_1975 |url=https://www.legislation.govt.nz/act/public/1975/0114/latest/DLM435515.html}}</ref>
 
The long title to the Treaty of Waitangi Act 1975 summarises the Act as follows:{{blockquote|An act to provide for the observance, and confirmation, of the Principles of the Treaty of Waitangi by establishing a Tribunal to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty.<ref>{{cite web |title=Long Title |url=https://www.legislation.govt.nz/act/public/1975/0114/latest/DLM435368.html}}</ref>}}
 
==Need for treaty principles==
TheHayward Treaty(2012) ofnotes Waitangithat isit notmay regardedbetter asto lawapply becausethe itintentions isor aprinciples of the treaty, notas athe treaty text itself is not law. NotwithstandingReasons given are that, the English and Māori- language versions "do not have exactly the same meaning", and itthe 1840 treaty "focuses on the issues relevant at the time it was signed". Instead, the Treaty of Waitangi Act 1975 provides for the intentions and goals of the treaty to be taken into account through the principles of the Treaty of Waitangi.<ref>{{cite encyclopedia |last=Hayward |first=Janine |date=16 January 2023 |title=Story: Principles of the Treaty of Waitangi – ngā mātāpono o te Tiriti o Waitangi |url= https://teara.govt.nz/en/principles-of-the-treaty-of-waitangi-nga-matapono-o-te-tiriti-o-waitangi |encyclopedia= [[Te Ara: The Encyclopedia of New Zealand|Te Ara – the Encyclopedia of New Zealand]] | accessdate=24 November 2023}}</ref> As well as this, New Zealand law affirms the common law doctrine that "It is well settled that any rights purported to be conferred by such a Treaty of cession cannot be enforced by the Courts, ex-cept in so far as they have been incorporated in municipal law".<ref>{{Cite web |title=He Tirohanga o Kawa ki te Tiriti o Waitangi |url=http://www.tpk.govt.nz/en/o-matou-mohiotanga/crownmaori-relations/he-tirohanga-o-kawa-ki-te-tiriti-o-waitangi/ |access-date=2023-11-25 |website=www.tpk.govt.nz |page=17 |language=en}}</ref>
The Waitangi Tribunal's key function is to evaluate Crown actions against the intentions of the parties that signed the Treaty. The Tribunal also has the specific authority to determine the meaning of the two texts of the Treaty.<ref name="Melvin">{{cite book |year= 2004 |last=Melvin |first= Geoff |chapter=The Jurisdiction of the Waitangi Tribunal |title=In The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi |editor-last=Hayward |editor-first=Janine |editor-link=Janine Hayward |editor-last2=Wheen |editor-first2=Nicola |editor-link2=Nicola Wheen |publisher=Bridget Williams Books |isbn=1-877242-32-2 |location=Wellington}}</ref>
As Hayward (2004) states:
{{blockquote|''"The Tribunal's findings ...are expressed in the currency of treaty principles - which principles are applicable to the particular case, and how the Crown breached those principles, if at all"''.<ref name="Hayward">{{cite book |year= 2004 |last=Hayward |first= Janine |chapter=Flowing from the Treaty’s words: the principles of the Treaty of Waitangi |title=In The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi |editor-last=Hayward |editor-first=Janine |editor-link=Janine Hayward |editor-last2=Wheen |editor-first2=Nicola |editor-link2=Nicola Wheen |publisher=Bridget Williams Books |isbn=1-877242-32-2 |location=Wellington}}</ref>}}
 
In order to apply the Treaty of Waitangi in a way that is relevant to the Crown and Māori in the present day, the Waitangi Tribunal and the courts must consider the broad sentiments, the intentions and the goals of the treaty, and then identify the relevant principles of the treaty on a case-by-case basis.
==Origins of the principles==
<ref>{{cite encyclopedia |last=Hayward |first=Janine |title=Principles of the Treaty of Waitangi – ngā mātāpono o te Tiriti o Waitangi - What are the treaty principles? |encyclopedia= [[Te Ara: The Encyclopedia of New Zealand|Te Ara – the Encyclopedia of New Zealand]] |url= http://www.TeAra.govt.nz/en/principles-of-the-treaty-of-waitangi-nga-matapono-o-te-tiriti-o-waitangi/page-1 |date=16 January 2023 |accessdate= 3 March 2024}}</ref>
The principles originate from ''[[New Zealand Maori Council v Attorney-General]]'',<ref>New Zealand Māori Council v. Attorney-General [1987] 1 NZLR 641.</ref> a case brought in the [[High Court of New Zealand|High Court]] by the [[New Zealand Māori Council]] in 1987. There was great concern at that time about the ongoing restructuring of the New Zealand economy by the then [[Fourth Labour Government of New Zealand|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 of Waitangi claims and settlements|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".<ref>{{cite web|title=State-Owned Enterprises Act 1986|url=http://www.legislation.govt.nz/act/public/1986/0124/latest/whole.html#DLM98028|publisher=Parliamentary Counsel Office|accessdate=12 August 2012}}</ref>▼
Hayward (2004) concludes that: ''"...each Tribunal is required to determine the principles of each claim on a case by case basis"''.<ref name="Hayward"></ref>
 
==New Zealand Maori Council v Attorney-General 1987 case law==
▲TheWhere there are issues of statutory interpretation or judicial review proceedings, the courts of New Zealand follow the case law<ref>{{cite web |url= https://www.wgtn.ac.nz/public-law/publications/nz-journal-of-public-and-international-law/previous-issues/volume-19-issue-1-2021/01-winkelmann-pdf |title=Picking up the threads : the story of the common law in Aotearoa New Zealand |author= Dame Helen Winkelmann |date =2 December 2020 |work=Robin Cooke Lecture |publisher =Te Herenga Waka–Victoria University of Wellington}}</ref> on the principles originateof the Treaty originating from ''[[New Zealand Maori Council v Attorney-General]]'',<ref>New Zealand Māori Council v. Attorney-General [1987] 1 NZLR 641.</ref> aThis case was brought in the [[High Court of New Zealand|High Court]] by the [[New Zealand Māori Council]] in 1987. There was great concern at that time about the ongoing restructuring of the New Zealand economy by the then [[Fourth Labour Government of New Zealand|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 of Waitangi claims and settlements|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".<ref>{{cite web|title=State-Owned Enterprises Act 1986|url=http://www.legislation.govt.nz/act/public/1986/0124/latest/whole.html#DLM98028|publisher=Parliamentary Counsel Office|accessdate=12 August 2012}}</ref>
The [[Court of Appeal of New Zealand|Court of Appeal]], in a judgment of its then President [[Robin Cooke, Baron Cooke of Thorndon|Sir Robin Cooke]], decided upon the following treaty principles:
*The acquisition of sovereignty in exchange for the protection of [[rangatiratanga]].
Line 30 ⟶ 42:
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.<ref>''Principles of the Treaty for Crown Action'', p 9</ref>}}
 
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".<ref>''Principles of the Treaty for Crown Action'', p 7</ref> In a 1989 presentation about how the principles of The Treaty of Waitangi were intended to guide Crown action, [[Geoffrey Palmer (politician)|Geoffrey Palmer]] noted: "The First and Second Articles of the Treaty are both strong statements which necessarily qualify one another. Kawanatanga is subject to a promise to protect rangatiratanga. Rangatiratanga is subject to an acknowledgement of kawanatanga."<ref>{{Cite web |last=Geoffrey |first=Palmer |author-link=Geoffrey Palmer (politician) |date=7 July 1989 |editor1-last=Prebble |editor1-first=John |editor2-last=Crawford |editor2-first=Allegra |editor3-last=Lincoln |editor3-first=Laura |title=The Treaty of Waitangi - principles for Crown action |url=https://archive.org/details/principles-for-crown-action |url-status=live |archive-url=https://archive.today/20240321010937/https://archive.org/details/principles-for-crown-action |archive-date=21 March 2024 |access-date=21 March 2024 |page=340|website=Victoria University of Wellington |type=Collected Papers by the Right Honourable Sir Geoffrey Palmer QC Part VI Constitutional Law, Government and Reform. The Treaty of Waitangi, Palmer Paper 26.}}</ref>
 
{{quote box|align=center|title=The Rangatiratanga Principle – The Principle of Self Management|
Line 58 ⟶ 70:
* Crown Minerals Act 1991
* Marine and Coastal Area (Takutai Moana) Act 2011
By 2021, the Treaty of Waitangi or its principles are referred to in over thirty-five Acts.<ref>{{cite web |url= https://www.wgtn.ac.nz/public-law/publications/nz-journal-of-public-and-international-law/previous-issues/volume-19-issue-1-2021/01-winkelmann-pdf |title=Picking up the threads : the story of the common law in Aotearoa New Zealand |author= Dame Helen Winkelmann |date =2 December 2020 |work=Robin Cooke Lecture |publisher =Te Herenga Waka–Victoria University of Wellington}}</ref>
 
===Opposition to the Treaty Principles===
The "Principles of the Treaty of Waitangi Deletion Bill" was introduced to the New Zealand Parliament in 2005 as a [[private member's bill|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".<ref>{{cite web|url=http://www.nzfirst.org.nz/feature/?i=27|publisher=[[New Zealand First]]|title=Doug Woolerton's Principles of the Treaty of Waitangi Deletion Bill|accessdate=13 June 2007 |archiveurl = https://web.archive.org/web/20070701035301/http://www.nzfirst.org.nz/feature/?i=27 |archivedate = 1 July 2007}}</ref>
 
At the first reading of the bill, New Zealand First leader [[Winston Peters]] said:
Line 67 ⟶ 80:
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.<ref>{{cite web | url=http://www.parliament.nz/en-nz/pb/debates/debates/47HansD_20050608_00001017/principles-of-the-treaty-of-waitangi-deletion-bill-%E2%80%94-first | title=Principles of the Treaty of Waitangi Deletion Bill – First Reading | work=New Zealand Parliament | accessdate=6 February 2015}}</ref>}}
 
After failing to pass it's first reading, the bill was reintroduced after the 2005 election, with the Labour Party promising to support the bill to select committee as part of its confidence and supply agreement with New Zealand First.<ref>{{cite web |title=Confidence and Supply Agreement with New Zealand First |url=https://assets.nationbuilder.com/nzfirst/pages/3875/attachments/original/1656845221/NZFirst_Labour_Confidence_and_Supply_2005.pdf?1656845221 |publisher=Government of New Zealand |access-date=16 June 2024}}</ref> This time, the Bill passed first reading 111 votes in favour (Labour, National, New Zealand First, United Future, ACT New Zealand, and Progressive), 10 votes against (Green Party, Māori Party).<ref>{{cite book |title=Parliamentary Debates (Hansard) Volume 632 |date=26 July 2006 |publisher=New Zealand House of Representatives |location=Wellington |page=4471 |url=https://drive.google.com/file/d/0B1Iwfzv-Mt3CeHR5Wm9scG1TT28/view?resourcekey=0-iZ0D-_YcEvmj8oJRACjtHw |access-date=16 June 2024}}</ref>
The bill failed to pass its second reading in November 2007.<ref>{{cite web |date=7 November 2007 |title=New Zealand Parliament – Principles of the Treaty of Waitangi Deletion Bill |url=https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/00DBHOH_BILL7417_1/principles-of-the-treaty-of-waitangi-deletion-bill |accessdate=1 November 2011 |publisher=Parliament.nz}}</ref>▼
 
▲TheThat bill failed to pass its second reading in November 2007.<ref>{{cite web |date=7 November 2007 |title=New Zealand Parliament – Principles of the Treaty of Waitangi Deletion Bill |url=https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/00DBHOH_BILL7417_1/principles-of-the-treaty-of-waitangi-deletion-bill |accessdate=1 November 2011 |publisher=Parliament.nz}}</ref>
 
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.<ref name="ChapmanTripp" />
 
The [[ACT New Zealand|ACT]] party has proposed a referendum on the Principles of the Treaty of Waitangi, something that gained media attention during the [[2023 New Zealand general election]] campaign.<ref>{{Cite web |title=Seymour holds firm on treaty referendum demand |url=https://www.teaonews.co.nz/2023/09/25/seymour-holds-firm-on-treaty-referendum-demand/ |access-date=2023-11-04 |website=Te Ao Māori News |language=en}}</ref><ref>{{Cite news |title=Election 2023: ACT hammers home treaty referendum pledge at campaign launch |language=en |work=Newshub |url=https://www.newshub.co.nz/home/politics/2023/09/election-2023-act-hammers-home-treaty-referendum-pledge-at-campaign-launch.html |access-date=2023-11-04}}</ref><ref>{{Cite web |last= |first= |last2= |date=2023-10-16 |title=NZ could hold referendum on Treaty of Waitangi |url=https://www.skynews.com.au/world-news/global-affairs/nz-could-hold-referendum-on-treaty-of-waitangi-despite-warnings-of-civil-disobedience-over-proposed-changes-to-founding-document/news-story/4507e70d43a78db6feca1e3974444b92 |access-date=2023-11-04 |website=skynews |language=en}}</ref><ref>{{Cite web |date=2023-11-02 |title=What stands in the way of the ACT Party plan for a referendum on the Treaty of Waitangi |url=https://www.rnz.co.nz/news/te-manu-korihi/501486/what-stands-in-the-way-of-the-act-party-plan-for-a-referendum-on-the-treaty-of-waitangi |access-date=2023-11-04 |website=RNZ |language=en-nz}}</ref><ref>{{Cite web |date=2023-11-05 |title=Majority would support Treaty referendum, although unsure if they want to vote on it |url=https://www.nzherald.co.nz/nz/politics/election-2023-majority-would-support-acts-treaty-referendum-although-voters-unsure-if-they-want-to-vote-on-it/CQFL5K2AFVGFBI6QMJWBYO4MI4/ |access-date=2023-11-04 |website=NZ Herald |language=en-NZ}}</ref> There has been opposition to the proposed referendum by those who view it as unnecessary or divisive.<ref>{{Cite web|url=https://www.stuff.co.nz/national/politics/133123493/it-could-lead-to-violence-james-shaws-warning-about-acts-treaty-of-waitangi-referendum|title='It could lead to violence': James Shaw's warning about ACT's Treaty of Waitangi referendum|first=Bridie|last=Witton|date=15 October 2023|website=Stuff}}</ref><ref>{{Cite webnews|url=https://www.newshub.co.nz/home/politics/2023/11/labour-mp-willie-jackson-warns-of-m-ori-uprising-over-act-s-proposed-treaty-referendum.html|title=Labour MP Willie Jackson warns of Māori uprising over ACT's proposed Treaty referendum|newspaper=Newshub |via=www.newshub.co.nz}}</ref><ref>{{Cite web|url=https://www.rnz.co.nz/news/political/501912/former-pm-jim-bolger-on-act-s-treaty-referendum-plan-it-won-t-and-shouldn-t-happen|title=Former PM Jim Bolger on ACT's Treaty referendum plan - 'It won't and shouldn't happen'|date=8 November 2023|website=RNZ}}</ref>
 
Following the 2023 election and the formation of a [[Sixth National Government of New Zealand|National-led coalition government]], ACT embarked on a public information campaign in early February 2024 to promote its [[Treaty Principles Bill]]. This campaign includes the creation of a new website called "treaty.nz," which has a Questions and Answers section outlining the party's approach to the principles of the Treaty of Waitangi and a video featuring Seymour. Seymour also contested claims that the opposition was trying to rewrite or abolish the Treaty of Waitangi. The public information campaign also came after a leaked [[Ministry of Justice (New Zealand)|Justice Ministry]] memo claimed that the proposed bill clashed with the text of the Treaty.<ref>{{cite news |title=ACT launches Treaty Principles Bill information campaign |url=https://www.rnz.co.nz/news/political/508579/act-launches-treaty-principles-bill-information-campaign |access-date=7 February 2024 |work=[[Radio New Zealand]] |date=7 February 2024 |archive-url=https://web.archive.org/web/20240207015928/https://www.rnz.co.nz/news/political/508579/act-launches-treaty-principles-bill-information-campaign |archive-date=7 February 2024|url-status=live}}</ref>
 
==See also==
*[[Co-governance]]
 
==CitationsReferences==
{{reflist}}
 
==External Linkslinks==
*{{cite[https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2189236 book | title="Principles for Crown Action on the Treaty of Waitangi," 1989- | publisher=TreatyA of1989 Waitangispeech Researchby Unit,Geoffrey VictoriaPalmer UniversityQC, ofthe WellingtonDeputy |Prime year=2011Minister] | location=Wellington}}
 
{{Treaty of Waitangi |state=autocollapse}}

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