Why we are debating ‘the principles’ of the Treaty of Waitangi

Expert opinion from Victoria University Wellington - Te Herenga Waka

Opinion: In recent months, there has been a huge amount of discussion of ‘the principles of The Treaty of Waitangi’. Most of the time, the reference to ‘the principles’ is not just a general reference to the ideas underpinning The Treaty/Te Tiriti, but a specific reference to a legal and policy construct developed from the 1970s and 1980s onwards. So why do we refer to ‘the principles’ specifically? Where did they come from, what did they mean, and why are we debating them again in 2024?

In part one of this series, I discussed the myth of the cession of sovereignty–the idea that Māori ceded sovereignty to the Crown in 1840. Despite the overwhelming evidence that it is a myth, this idea persists. Not only that, it remains the central justification for why we need ‘the principles’. As the argument goes, if te Tiriti (the te reo version) and the Treaty (the English version) don’t match (which is true) and we can’t possibly know what signatories intended (which is not true), we need to find a compromise between the two (which is doubtful).

From a Māori perspective, there should be no need to compromise on something that’s perfectly clear in the first place. Nevertheless, since the mid-1970s, ‘the principles of the Treaty’ have been used to at least try to uphold this compromised version of the document.

Reference to ‘the principles’ was first made in the Treaty of Waitangi Act 1975, which created the Waitangi Tribunal. The Tribunal was empowered to provide for “the observance, and confirmation, of the principles of the Treaty of Waitangi”, with authority given to look at both the te reo and English texts. Early Tribunal reports paved the way for later developments relating to both te Tiriti/the Treaty itself and the principles.

Where the principles really took hold, however, was in the late 1980s, largely due to a court case involving the New Zealand Māori Council. In 1986, the government passed the State-Owned Enterprises Act, which included a provision stating that “nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”. A year later, our highest court was required to determine what those principles were.

Much of what we know about the principles still comes from that case. Among other things, the court discussed the principles of partnership (that te Tiriti/the Treaty was a partnership between Māori and the Crown), active protection (that te Tiriti/the Treaty creates a duty on the Crown to actively protect certain Māori interests), and of redress (that breaches of te Tiriti/the Treaty oblige the Crown to compensate Māori). It also discussed the obligation on both Treaty partners to act reasonably and in good faith towards each other, an idea that remains central to understandings of te Tiriti/the Treaty today.

Treaty principles are also increasingly included in legislation. There is a trend towards provisions being more specific, requiring the Crown to take specific actions in order to uphold its Tiriti/Treaty duties. An example is found within the Oranga Tamariki Act, which requires the agency to (among other things) reduce disparities between Māori and non-Māori children, and “seek to develop strategic partnerships with iwi and Māori organisations”. These provisions are often a step forward, but specificity is not a panacea. The Treaty provision in the Oranga Tamariki Act, for example, was criticised by the Waitangi Tribunal for falling short of full compliance with te Tiriti/the Treaty.

To summarise so far: the principles have evolved over time, come from multiple sources, and for most of the past 40 years have been the main way in which lawmakers, public officials, and courts have navigated the differences between the two texts of te Tiriti/the Treaty.

Putting aside the myth of the cession of sovereignty, it is perhaps unsurprising the Government has stated that further clarity would be useful. The problem, however, is that what is being proposed is not really an attempt to clarify Treaty principles, but an attempt to erase them.

The principles that the Act Party would like to legislate for are contradictory and make little sense in the context of what Te Tiriti o Waitangi actually says. For example, its proposed ‘new’ Article One refers to kāwanatanga, but the subsequent definition of that term refers to the government’s right to govern all New Zealanders. That is simply not what kāwanatanga was intended to mean in the original text of Te Tiriti.

Even more egregiously, ACT’s version of Article Two refers to tino rangatiratanga, but states that this means the government “will honour all New Zealanders in the chieftainship of their land and all their property”. That is not a reinterpretation of Article Two, it is a complete fabrication.

ACT’s proposed new Article Three states that all New Zealanders will be equal under the law, with the same rights and duties. That idea might resonate with some people, but again–it’s not at all what te Tiriti says, no matter how much David Seymour wishes otherwise.

The principles used by the courts and the Waitangi Tribunal might be based on a myth, but they’re a lot more coherent than what the Act Party wants to replace them with. David Seymour says he wants to create certainty, but given their inherent contradictions, his ‘new’ principles are more likely to do the opposite.

In my view, the changes proposed by the Government are both morally wrong and legally incoherent.

While some people on both sides of the debate would state that the principles as we know them should be changed, re-writing them in the way the Government has suggested would be a huge setback for our country.

The great shame of these proposals is that as a nation (despite what David Seymour would have us believe) we finally seem to be ready to have a mature debate about our constitutional future. That discussion, grounded in what te Tiriti actually says, should be a cause for great hope, rather than for the politics of fear that we have seen so prominently lately.

This is part two of a three-part series by Dr Luke Fitzmaurice-Brown (Te Aupōuri) on the principles of the Treaty of Waitangi. Part one discussed a misconception often underpinning Treaty debates – the myth that Māori ceded sovereignty. Part three will discuss the future of Te Tiriti o Waitangi in modern-day Aotearoa, arguing that discussions about Te Tiriti should make us all hopeful, rather than fearful, and expands on what that possible future might look like.