Principles of the Treaty of Waitangi

Need for Treaty principles

The Treaty of Waitangi itself cannot be used as the basis for law, for two reasons: first, "the English and Māori versions are not exactly the same", and second, "it focuses on the issues relevant at the time it was signed."

Origins of the principles

The principles originate from the famous case brought in the High Court by the New Zealand Māori Council (New Zealand Maori Council v Attorney-General) 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".

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

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'." Prime Minister David Lange, in an introduction to the document said of the principles that:

The principles in the 1989 publication are as follow:

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".

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 principles in current legal affairs

In an analysis by Chapman Tripp, David Cochrane argued that: "there is no consensus as to what the principles of the Treaty mean; but this is because the Treaty is seen as developing, so the “principles” of it are not constant and cannot be exhaustively identified." He further argued that "the principles are likely to be relevant so long as the Treaty has a place in New Zealand, and Māori are consulted as Māori on matters of public relevance. The increasingly activist, liberal and broad legal interpretations may not therefore diminish in importance."

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".

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

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

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.