Treaty Law: principles of the Treaty of Waitangi in law and practice

Damen Ward, Kevin Hille, and Carwyn Jones

Thompson Reuters, New Zealand, 2023 (ISBN 9781991102300)

Reviewed by Roimata Smail*, barrister.

Kōrerorero - Discussion

Early on, Treaty Law states, “the Treaty of Waitangi is widely considered a founding document of government in New Zealand”^[1]. Given the role of lawyers as officers of the judicial branch of government, we should know what the Courts have said about it. For the first time, Treaty Law brings together over 600 High Court, Court of Appeal and Supreme Court/Privy Council decisions from the past several decades.

Understanding the place of Te Tiriti in our constitution is more relevant than ever in 2024, with the legislative branch of government testing the limits of its power, particularly regarding Māori.  More Bills were passed under urgency in the “first 100 days” than in any of the past five terms of Parliament.^[2] Prominent on the chopping block was the Māori Health Authority with its mandate to support indigenous models of excellence like Māori Primary Health Organisations and Providers. The executive branch is following along, changing Ministry names to put English before Māori. In this context the judiciary’s task of keeping the balance between the power of the government and the rights and responsibilities of New Zealanders^[3] has never been more important.

Treaty Law is a vital resource. Despite being the first book in this area and spanning diverse legal subject areas across decades, authors Kevin Hille, Carwyn Jones, and Damen Ward have kept it to a punchy 255 pages. Not just shelf décor, this book is actually readable. The authors write in a way that is engaging and easy to follow.

Treaty Law covers what it says it will: all Treaty-related cases of the High Court and the senior courts above from recent decades. It is an impressive feat and certainly needed. Lawyers should not get the wrong impression though that Waitangi Tribunal jurisprudence is irrelevant or that there is still real dispute about what was agreed in Te Tiriti. As the authors say, “there are already a great many excellent books and articles about the Treaty, as well as government and Waitangi Tribunal reports.” In this regard I refer readers to two short, but in my opinion critical, supplements to Treaty Law.

The first is the three page letter that begins the 2014 Waitangi Tribunal Report He Whakaputanga me te Tiriti where the Tribunal put to bed any lingering question of what was agreed between the parties to Te Tiriti, if there was any.

Knowing though that generations of New Zealanders, including lawyers, were not taught the basics, a little background first. Māori discovered Aotearoa (Moriori discovered Rēkohu – Chatham Islands), “owned” all land (in fact a relationship more than ownership) and had tino rangatiratanga (complete authority) over their own lives. In 1835, French interest and British settler misbehaviour prompted Britain to recognise He Whakaputanga, the Declaration of Independence. It said Māori had authority and foreigners would not be allowed to make laws. By 1840, Queen Victoria wanted the sole right to buy land, and some British misbehaviour persisted. Her representatives discussed with chiefs a “right of pre-emption”, promising to sell only to her. In return she would protect Māori including controlling British settlers. The discussed terms were written in Te Tiriti, in Māori:

Article One     The Queen will govern British in Aotearoa

Article Two     Māori will keep total authority (tino rangatiratanga) over their land (whenua), resources (taonga - treasures), and way of life (kāinga – villages) but if they want to sell any land, they will only sell to the Queen (the right of pre-emption)

Article Three   The Queen will give Māori the same protection as British citizens

But the Treaty, in English, said the Queen would have sovereignty: power to make laws affecting everyone, including Māori. This was never agreed.

That Māori did not cede sovereignty is not controversial. As the Waitangi Tribunal said in He Whakaputanga me te Tiriti, “Leading scholars – both Māori and Pākehā – have been expressing similar views for a generation or more”.

The second supplementary reading is chapter two of Tino Rangatiratanga me te Kāwanatanga (2022). The last 32 pages cover Tiriti principles jurisprudence of the Waitangi Tribunal over the same period as Treaty Law.  The principles were originally an attempt to reconcile Te Tiriti (in Māori, agreed with Māori) and the Treaty (in English, not agreed with Māori).  But this chapter charts the Tribunal’s journey to the obvious: principles can only reflect what was actually agreed. As such the primary principles are in the name of the report: Tino Rangatiratanga and Kāwanatanga. Māori authority in the Māori sphere is equal to Crown authority in its sphere – Kāwanatanga is not a superior authority ‘qualified’ by tino rangatiratanga. The Crown cannot unilaterally decide what the sphere of tino rangatiratanga encompasses; that is for Māori to negotiate with the Crown in accordance with the principle of partnership.

Whether or not they were before, the Courts are now clearly familiar with Waitangi Tribunal jurisprudence. In line with He Whakaputanga me te Tiriti and Tino Rangatiratanga me te Kāwanatanga there is increasing judicial acceptance of the principle of tino rangatiratanga. This is tucked into the overview chapter of Treaty Law^[4] when fleshing this out would have been warranted. For example, discussion of the Supreme Court’s Ellis decision skips Justice Glazebrook citing tino rangatiratanga as the source for the argument that statutes should be interpreted consistently with tikanga. Likewise, it is notable that in two judicial reviews about Te Pou Matakana being blocked from obtaining health information about Māori Covid vaccination data, the High Court was not fazed by parties’ reference to the principle of tino rangatiratanga from the Waitangi Tribunal’s Hauora Report.

The decisions of the senior courts discussed in Treaty Law suggest any future legislation asking judges to apply “Treaty principles” cutting across what was actually agreed may spawn significant new case law for a next edition. As the judiciary works to fulfill its democratic power balancing role, the leadership of the Waitangi Tribunal will continue to be a touchstone. I commend the authors for providing lawyers with this text and for their impeccable timing. Treaty Law together with these extracts from He Whakaputanga me te Tiriti and Tino Rangatiratanga me te Kāwanatanga are, in my opinion, required reading for all lawyers.

Ngā kupu āpiti - Notes

* Roimata Smail (Ngāti Maniapoto, Tainui, England, Scotland, Ireland) is a lawyer specialising for two decades in Te Tiriti o Waitangi. She is also the author of Understanding Te Tiriti: A Handbook of Basic Facts about Te Tiriti o Waitangi (Waiako Books, 2024).

[1] Treaty Law, 1.8.

[2] https://newsroom.co.nz/2024/03/08/govt-sets-record-for-laws-passed-under-urgency-in-first-100-days/#:~:text=In%20reality%2C%20the%20Government%20has,past%20five%20terms%20of%20Parliament.

[3] https://www.justice.govt.nz/about/learn-about-the-justice-system/how-the-justice-system-works/who-makes-and-applies-the-law/.

[4] Treaty Law, 2.6.1.

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