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Appendix 1

Treaty principles expressed by the Waitangi Tribunal, Court of Appeal and the Crown

The Waitangi Tribunal

The following Treaty principles derive from Waitangi Tribunal Reports and have been summarised by the Parliamentary Commissioner for the Environment. They include:

  1. The exchange of the right to make laws for the obligation to protect Maori interests.
  2. The Treaty implies a partnership, exercised with utmost good faith.
  3. The Treaty is an agreement that can be adapted to meet new circumstances.
  4. The needs of both Maori and the wider community must be met, which will require compromises on both sides.
  5. The Maori interest should be actively protected by the Crown.
  6. The granting of the right of pre-emption to the Crown implies a reciprocal duty for the Crown to ensure that the tangata whenua retain sufficient endowment for their unforeseen needs.
  7. The Crown cannot evade its obligations under the Treaty by conferring authority on some other body.
  8. The Crown is obliged to legally recognise tribal rangatiratanga.
  9. Early consultation should be undertaken.
  10. Tino rangatiratanga includes management of resources and other taonga according to Maori cultural preferences.
  11. Taonga includes all valued resources and intangible cultural assets.
  12. The principle of choice: Maori, Pakeha and bicultural options.

The Court of Appeal

The Parliamentary Commissioner for the Environment has also summarised and listed a number of principles that emerged from the Court of Appeal. These are as follows:

  1. The acquisition of sovereignty in exchange for the protection of rangatiratanga.
  2. The Treaty requires a partnership and the duty to act reasonably and in good faith.
  3. The freedom of the Crown to govern.
  4. The Crown duty of active protection.
  5. The Crown duty to remedy past breaches.
  6. Maori to retain chieftainship (rangatiratanga) over their resources and taonga and to have all the rights and privileges of citizenship.
  7. The Maori duty of reasonable co-operation.

The Crown

In 1986 a Cabinet decision directed that all future legislation referred to Cabinet at the policy approval stage should draw attention to any implications for recognition of the principles of the Treaty. It also directed that departments should consult with appropriate Maori people on matters affecting the application of the Treaty, and the financial and resource implications of recognising the Treaty should be assessed whenever possible in future reports.

Three years later, the Labour Government issued a document entitled Principles for Crown Action on the Treaty of Waitangi.

The document listed five principles that were to assist the government make decisions about matters related to the Treaty. The principles were:

1. The principle of government–the Kawanatanga principle

The principle asserted the government's right to govern and make laws. However, this was qualified and subject to the promise to accord Maori interests an appropriate priority.

2. The principle of self-management–the Rangatiratanga principle

This principle recognised the right of iwi to organise as iwi, and to control their resources as their own under the law.

Te tino rangatiratanga was to generally take precedence in matters concerning resources and taonga that Maori retained. However, where it could be demonstrated that a general need could only be significantly managed at a national level for the public benefit, the Crown was able to assert its kawanatanga powers.

3. The principle of equality

This recognised that all New Zealanders were equal before the law and therefore were to have equal access to opportunity and social benefits.

Where an imbalance between groups in relation to health, education, employment and housing (for example) was prevalent, then affirmative action initiatives could be adopted to redress the imbalance.

4. The principle of reasonable co-operation

This principle asserted that both the government and iwi were obliged to accord each other reasonable co-operation on major issues of common concern.

5. The principle of redress

This principle acknowledged that the government was responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.

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