In Aotearoa New Zealand, there is no part of the constitution more wilfully misremembered than te Tiriti o Waitangi/the Treaty of Waitangi. And one would be hard-pressed to find a more chilling example of this than the coalition government’s recently proposed Treaty Principles Bill. Their attempt at rewriting the ‘principles of the Treaty of Waitangi’ – words and phrases intended to capture the “spirit” of the Treaty to enable its incorporation into law – reveals a concerning disregard not only for the document’s history but its texts and constitutional status as well. It seems to this author, as well as Te Hunga Rōia Māori o Aotearoa – the Māori Law Society, the Waitangi Tribunal and many others, that there is only one thing for the government to do: drop the proposed bill before it reaches Parliament.

For the past forty years, it has been up to the courts and Waitangi Tribunal (a body that investigates breaches of the Treaty) to describe the principles. However, according to the Bill’s architects, the libertarian ACT New Zealand party, these references are vague and divisive. ACT argues that Parliament and ‘the people’, by endorsing their interpretation of the principles, should have the last word. This, they say, will “legitimise” New Zealand’s constitution, provide equality before the law and spark a national conversation about the Treaty’s constitutional standing.

It is doubtful whether the proposed principles will meaningfully achieve any of these objectives. What is certain is that enduring damage has been caused by the policy process and will continue, despite assurances from the two other governing parties that the Bill will not be supported to enactment. To understand why this is, it is useful to discuss the te Tiriti/the Treaty and its surroundings, as well as the way the Treaty principles have developed thus far.

So, what did the texts actually say?

Te Tiriti’s promise

Because of mistranslations between te Tiriti o Waitangi and the English language document, the Treaty of Waitangi, the two texts are often treated separately. But it is the Māori text, signed in 1840 by the overwhelming majority of rangatira (chiefs) and recognised at international law, that takes precedence. Te Tiriti extended to the British Crown a limited power of kāwanatanga (governance) to control the rapidly expanding and lawless settler population while securing for Māori tino rangatiratanga (ultimate power and authority) over their whenua (lands), kainga (villages), and all their taonga (treasured possessions, both tangible and intangible). Additionally, Māori were guaranteed the same rights and privileges as British subjects.

The English language document, on the other hand, stated that Māori ceded “absolutely and without reservation all the rights and powers of Sovereignty.” It limited the promise of what the Tribunal describes as the highest form of political authority relevant to Māori to “full, exclusive, and undisturbed possession” as well as the scope of that protection to “Lands and Estates Forests and Fisheries and other properties which they may collectively or individually possess.” Nevertheless, the Waitangi Tribunal found in the Te Paparahi o Te Raki Inquiry that Māori signatories to te Tiriti did not cede their sovereign lawmaking powers.

Instead, the constitutional arrangement that te Tiriti fashioned was one of equal but different roles and ‘spheres of influence’. Inside these tino rangatiratanga and kāwanatanga spheres, the Matike Mai working group conceived, Māori and the Crown could make their own decisions. Matters that engaged both partners would occur in a third, shared space. Given the historical context in which te Tiriti was signed, these conclusions hold water.  

During the 1840s, Māori continued to be culturally and demographically dominant in Aotearoa. They had their own social rules and legal tradition, tikanga, described by Tā Edward Taihakurei Durie as an integrated system of “values, standards, principles or norms to which the Maori community generally subscribed for the determination of appropriate conduct.” As Moana Jackson noted, the way authority functions within te ao Māori (the Māori world) makes the idea that Māori ceded sovereignty, as understood in English law, not just culturally inconceivable, but a political impossibility. Five years earlier, northern rangatira had affirmed their exclusive law-making authority and declared New Zealand an independent state in He Whakaputanga (the Declaration of Independence).

Emergence of Treaty principles

Regrettably, the commitments of te Tiriti were not honoured. As the Crown carried out its colonial project, the sacred compact was reduced – by the court’s description in Wi Parata at least – to a “simple nullity.” This determination was later revised, but the position expressed in Te Heuheu Tukino v Aotea District Maori Land Board that the Treaty is not enforceable unless directly incorporated into statute remains (for now) as a general principle, orthodox law.

The ‘principles of the Treaty of Waitangi’ which the proposed Bill redefines, were thus a practical answer to the sensitive question of how to acknowledge te Tiriti in domestic law. They appeared first in the Treaty of Waitangi Act 1975 in conjunction with the creation of the Waitangi Tribunal, which held the “exclusive authority to determine the meaning and effect of the Treaty.” Notably, no definitive list of Treaty principles was or has since been included in statute.

Subsequent to the 1975 Act references to the (undefined) principles were inserted into various pieces of legislation, prompting a series of test cases that helped clarify what they were. Most prominent was the 1987 Lands case, which involved a Treaty provision in s 9 of the State-Owned Enterprises Act 1986. From this decision, the principle of partnership, the duty of active protection and to remedy past breaches (redress) originate.Later cases strengthened the Crown’s obligation of consultation to act in good faith as imposed by the principle of partnership, affirmed the status of the Treaty as a “living document” and relevance to circumstances not envisaged in 1840, and characterised the Treaty relationship as one of “reasonableness, mutual cooperation and trust.” The standing of the Treaty as an interpretative aid in cases where it is not directly mentioned in legislation has also recently been raised.

The proposed principles

According to government policy, the principles of the proposed Bill are:

1. Civil Government – the Government of New Zealand has full power to govern, and Parliament has full power to make laws. They do so in the best interests of everyone, and in accordance with the rule of law and the maintenance of a free and democratic society.
2. Rights of Hapū and Iwi Māori – The Crown recognises the rights that hapū and iwi had when they signed the Treaty/te Tiriti. The Crown will respect and protect those rights. Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreement with the Crown.
3. Right to Equality – Everyone is equal before the law and is entitled to the equal protection and equal benefit of the law without discrimination. Everyone is entitled to the equal enjoyment of the same fundamental human rights without discrimination.

These ‘principles’ are historically dislocated and conflict with current jurisprudence and the text and spirit of te Tiriti/the Treaty. Although they differ from the initial ‘principles’ proposed in ACT’s election manifesto and analysed by the Tribunal in August, their effect will be similar. If enacted, they would significantly alter “the constitutional foundation of government in ways likely to undermine or extinguish Māori rights and interests and conversely to elevate the rights of the Crown.” Additionally, the courts would be left with the thorny issue of reconciling te Tiriti/the Treaty’s status as a document of standalone legal relevance, with ‘principles’ that do not resemble the original texts. Criticism has also come from government officials, who wrote that the proposed principles’ inconsistency with te Tiriti/the Treaty risks “creating more uncertainty.”

The absence of Māori signatories of te Tiriti and portrayal of kāwanatanga as securing the absolute power of governing authority in the first ‘principle’ is specious. In effect, it conceals the equal but different spheres of influence conceived by te Tiriti, as well as the obligation to exercise kāwanatanga in line with the principle of good government and active protection of rangatiratanga. 

‘Principle two’ is reductive for the same number of reasons. First, it undermines tino rangatiratanga by diminishing the rights of Māori under te Tiriti to ordinary, individualised rights that “could be exercised by any group of citizens.” This fails to acknowledge the collective nature of the rights and their grounding in te ao Māori. Second, the rights guaranteed to iwi and hapū are limited to those recognised by the Crown. As law academic Luke Fitzmaurice-Brown (Te Aupōuri) has pointed out, this is inconsistent with the text of te Tiriti and concept of rangatiratanga.  

‘Principle’ three, most akin to the initial ACT policy, reformulates the Crown assurance of equity in te Tiriti. This, the Tribunal found, does not appreciate the disparities in power between Māori and the Crown, as well as “the values of fairness, reasonableness, and a ‘level playing field’” implicit in the principle. It is worth noting that equality before the law is already protected by multiple sources of New Zealand’s constitution, such as s 27 of the New Zealand Bill of Rights Act 1990.

What is to be done?

At best, the Bill is constitutionally questionable and worst, a polarising attempt to erode indigenous rights.

The informed debate that the Bill’s creators claim to want is one that Māori have been having for decades. It is not helped by a proposed law born from a policy-making process that has excluded Māori from the get-go and falls short of the government’s own legislative standards. Together with the proposed principles’ ‘historical gymnastics’ and legal ambiguity, entertaining the Bill any longer is irresponsible.  

A broader national discussion about New Zealand’s constitution future is needed. But let it not be around a piece of legislation that so shamelessly ‘forgets’ the nation’s founding document and power-sharing it envisioned.