Barry Brill: The Flawed Preamble to the Treaty of Waitangi Act 1975

The flawed Preamble to the Treaty of Waitangi Act 1975 set off 50 years of litigation on the wrong foot

A Preamble plays an important role in conveying to the Courts what law-makers were aiming to achieve by an Act of Parliament. Any factual error in a preamble will inevitably cause endless confusion and argument

Almost 135 years after the Treaty documents were signed, a number of disputes concerning land ownership remained extant, and Parliament passed the Treaty of Waitangi Act 1975 to establish a specialised Tribunal to hear and consider those remaining disputes.

Around that time, controversy arose around a suggestion that the English and Māori records of the Treaty might mean different things. The compatibility of the twin documents had previously remained unquestioned for well over a century, including in the course of the seminal analysis by Sir Apirana Ngata in 1934.

Against this background, the 1975 Parliament thought fit to approve the following Preamble:

Whereas on 6 February 1840 a Treaty was entered into at Waitangi between Her late Majesty Queen Victoria and the Maori people of New Zealand:

And whereas the text of the Treaty in the English language differs from the text of the Treaty in the Maori language:

And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles.

Unfortunately, this Preamble was deeply flawed.

MĀORI PEOPLE ARE NOT PARTIES TO THE TREATY

1.     The Preamble to the 1975 Act was quite wrong in describing the “Maori people of New Zealand” as being a party to the Treaty. 

2.     Only Iwi and Hapū (incorporeal entities) were parties. Albeit with some reluctance, the Privy Council held in the 2002 Fisheries Case that the Maori chiefs entered into the Treaty in 1840 solely as representatives of their Tribes^[1], and not as agents for Māori (ie ordinary people). This ruling remains binding on all New Zealand Courts,

3.     One-third of all New Zealand’s commercial fisheries had been included in a 1992 Deed of Settlement that required traditional Iwi (“Tribes”) and urban Maori who were unaffiliated to Tribes (“Maori”), to agree among themselves how the assets were to be shared out. After a decade of wrangling between Tribes and Māori, the Court of Appeal held that there must be an equitable and separately administered provision for Maori.,

4.     In Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2002] 2 NZLR 17 the Privy Council  overturned this finding and along with Paterson J in the Auckland High Court held that the benefits of the settlement were to be allocated exclusively to Tribes.

5.     In the context of the Treaty, the distinction between the Tribes on one hand and Māori on the other is fundamentally important, and the error made by Parliament in 1975 ought to be set straight by this select committee. Committee members are urged to read the details of arguments in the Fisheries cases, which are well summarised in an article in the Auckland University Law Review.:

“The Commission [and Iwi]  argued that the allocation method must be based firmly in tikanga Maori and the concept of Maori fishing rights, as opposed to a focus on the social and economic needs of Maori”. It is the Commission's view that Maori commercial fishing rights were, in 1840, collective property rights vested in kin-based groups. Therefore, under the guarantee of rangatiratanga in the Treaty of Waitangi, the Commission sought to restore that Treaty right to iwi alone.

The Urban Maori Authorities based their submissions on the premise that an allocation to iwi would deny those Maori with little or no tribal contact living in urban areas access to the benefits of the "pre-settlement" assets. They argued that individual Maori have their commercial fishing rights guaranteed by the Treaty of Waitangi and that allocation to iwi would not compensate such individuals. Moreover if the right to fish was a communal right, there is a presumption in law that compensation would be made to each individual Maori for the loss suffered as a result of the appropriation of communal property”.

6.     This was a watershed decision, clearly establishing that Treaty claims have nothing at all to do with social or economic needs. They are solely concerned with the ownership of legal rights created by those statutes that empower Treaty claims. All those rights accrue to asset-owning corporations operated by and for the benefit of  Tribal organisations, many of which are already very wealthy. No rights accrue directly or indirectly to Māori people. Whether and when rights trickle-down to registered rank-and-file members of Iwi is over to the Tribal authorities.

7.      Both the Privy Council and the Fisheries Act assume that Tribal ownership will “ultimately” be to the benefit of “all Maori” – defined as “a person of the Maori race of New Zealand and includes a descendant of any such person”. This appears to be little more than a pious hope.

8.     Schedule 3 of the Maori Fisheries Act 2004 sets out “notional Iwi populations” of the recognised 57 Tribes, divided into 8 principal groups. The notional total is 679,154. However, the actual numbers appearing on the voting registers of Tribal Corporations are very much smaller - approximately one-fifth. 

9.     During the 20 years that have since elapsed, the numbers of registered members have increased^[2], but this Committee should recognise than the maximum number of Maori who will ever legally inherit indirect Treaty rights or benefits is less than 250,000. 

10.  According to census figures, as much as 17% of the population or as many as 850,000 New Zealanders claim to have a Maori ancestor. As fewer than 3% of the population are registered as Iwi members, this means than about 600,000 Māori (70% of the Māori population, by census), miss out entirely on any rights or benefits that derive from the Treaty. This stark fact underlines the fact that Treaty-related jurisprudence is a very-poorly-targeted mechanism for delivering pan-Māori benefits of any kind.

11.  The draft of the Bill as introduced (which was approved by the Cabinet, acting on Crown Law advice) emphasises in Principle 2 that the only parties that have any Treaty rights recognised by the Crown are Hapū and Iwi whose claims are recognised in statutes approving Treaty settlements. Māori people, as such, were never parties and have never had any rights or responsibilities pursuant to the Treaty. Accordingly, they are not affected by this Bill.

THERE IS ONLY ONE ‘VERSION’ OF THE TREATY

12.  Another fundamental error in the Preamble to the 1975 Act is the presumed significance of alleged semantic variations between the two languages in which the agreement was recorded.

13. There was just a single agreement. The two historical records of that agreement cannot rationally differ in meaning and effect if one is no more than a best-efforts translation of the other. While academics may speculate about the translating skills of the English missionaries (who had invented the first written Māori language in the 1830s) there was only one actual consensus between the parties^[3]

14.  This singular consensus is recognised by the 1975 Act itself which interprets “Treaty” as meaning “the Treaty of Waitangi as set out in English and in Maori in Schedule 1”

15.  We always need to bear in mind that:

a.     this was not a legal contract but a record of a consensus reached between two groups of people;

b.     a very small proportion of the signatories were literate in either ‘Missionary Maori’ or English, and none had legal representation;

c.      the written Maori language, which was in its infancy in 1840, was not attuned to differing tribal idioms, and remained highly dynamic throughout the 19th century. But the most revered Māori scholar of modern times, Sir Apirana Ngata, found no real and material conflict between the two texts;

d.     the Maori vocabulary has been developed and refined and multiplied by a hundredfold over the course of the past 180 years. If certain words have changed in meaning that does not mean that the signatory chiefs were misled in 1840. If the translation had its faults, that does not meant that there was no agreement – or that there were two agreements.

e.     Hobson arrived under orders and his proposal was drafted in collaboration with Busby in a written format that they both expected to be acceptable to the Chiefs. This was the proposal that was translated and was then explained to the Chiefs, vigorously debated at the hui, eventually accepted, and then ‘signed’ in translated form.

f.      There was never any negotiation over wording. If there is any concern about the translation, then the ‘English version’ is quite obviously the primary record of the consensus that was eventually reached.

16.  If a contractual document or translation is genuinely ambiguous or uncertain, New Zealand law (Evidence Act 2006) allows reference to ‘extrinsic evidence’ of contemporary statements of intent made by the parties. Fortunately, William Colenso kept a detailed record of the debate at the Waitangi hui on 5-6 February 1840, which confirms that the signatories had a clear shared understanding of the meaning and effect of the document they were being invited to accept.

17. There is said to be some debate amongst historians as to whether the Maori text in Schedule 1 of the 1975 Act is a true copy of the document that was actually signed by the great majority of chiefs. Some suggest that the Schedule reproduces a draft copy which was mistakenly signed by a handful of Chiefs and was later promoted by Hobson’s secretary, Littlewood. This should be a simple matter for modern forensics to resolve, and it would clearly be helpful if the Committee were to clear up this question.

THE TREATY HAS NO ‘PRINCIPLES’

18. The third fundamental flaw in the Preamble is its reference to the “practical implications of the principles of the Treaty”. What principles?  The 135-year-old documents refer to “Articles” and there seems to have been no pre-1975 reference to “principles”. Did the draftsperson of the Act just make up the notion of ‘principles of the Treaty’ out of whole cloth? Was it just a way of avoiding the word ‘Articles’, seeing the draftsperson believed that there were conflicting versions of the Articles?

19.  A perusal of the Hansard record of debates on the Bill sheds no light on the provenance of the term ‘principles’.  It seemingly came out of nowhere, and no MP (who voted for it) seems to have had any clear view as to its meaning.

20.  The Waitangi Tribunal was established and set upon its task of considering current land claims. Contrary to the Preamble, the Tribunal has never had jurisdiction to interpret the mystery of Parliamentary intent in regard to “the principles” and made no attempt to do so during the ensuing 20 or so years. The novel term attracted little if any attention from anybody, prior to the passage of the State Owned Enterprises Act in 1986 (see below).

21.  In the Parliamentary debate on the First reading of the Treaty Principles Bill 2023, the New Zealand First spokesperson (Hon Casey Costello) contended that the Treaty has no principles. This has been that Party’s consistent position as set out in a Bill introduced by Rt Hon Winston Peters in 2006, and agreed with the National Party in its 2003 Coalition Agreement. This argument has the benefit of historical truth and the ACT party should join with its Coalition partners in removing this confected term from the 25 or so statutes that vacuously refer to “the principles” without attempting to define or explain what the term means.

22.  The New Zealand First/National Parties seem reluctant to repeal or amend the 1975 Act which is the font of the term and continues to proclaim that “the principles” exist. But even the repeal of that Act, would no longer dispense with the need to ascribe some consistent meaning to the term ”the principles of the Treaty”. The term now has a life of its own and has been voluntarily adopted by numerous government ministries, agencies, SOEs, etc, not to mention universities, schools, polytechnics, trade unions, professional associations and the like. After six years of left-wing governments, the public service and the City of Wellington are now deeply imbued with the idea that they are somehow bound by the yet-to-be-defined “principles”.

23. For this reason, It is submitted that a Bill to identify and define “the principles of the Treaty of Waitangi” is necessary, whether or not the New Zealand First policy is fully adopted.

THE ‘LANDS CASE’ : ONE PRINCIPLE

24. It has been reported that Sir Geoffrey Palmer described the phrase ‘principles of the Treaty’ as “essentially meaningless” after inserting it in s 9 of the State Owned Enterprises Act a decade later. But any words included in a statute must be ascribed some meaning by the Courts. The need to invent a meaning arose in the 1987 Court of Appeal case of New Zealand Maori Council v Attorney-General (the “Lands Case”).

25.  Some contend that the multi-Judge Court of Appeal defined ‘the principles of the Treaty’ in the Lands Case. They did not. The ratio decidendi of the case was a trite declaration that the Government must have a system to consider whether transferring any particular land to a SOE might prejudice land claims yet to be considered by the Tribunal, and thereby be inconsistent with “the principles of the Treaty”. So, it was not necessary for the Court to identify just what the scope and content of those principles were. But that did not deter each of the five members of the Court from offering his (they were all men) personal opinion about what those various ‘principles’ might include.

26.  Cooke P said at p 42: “At the outset I mentioned that each member of the Court was writing a separate judgment.   It will be seen that approaching the case independently we have all reached two major conclusions. First that the principles of the Treaty of Waitangi override everything else in the State-Owned Enterprises Act. Second that those principles require the Pakeha and Maori Treaty partners to act towards each other reasonably and with the utmost good faith.     [emphasis added]

27.   In a subsequent case,  New Zealand Māori Council v Attorney-General [2013] NZSC 6, the Supreme Court, described the Lands Case as being “of great authority and importance to the law concerning the relationship between the Crown and Maori” (at [52]). The Waitangi Tribunal and others have similarly opined that the Lands Case is the seminal authority on the meaning of the statutory term “the principles of the Treaty of Waitangi”. In light of this history this Committee might give serious consideration to recommending an amendment to the Bill to include a Principle 4^[4]: “All of the original signatories to the Treaty, along with their successors in law, bear an ongoing obligation to act towards each other reasonably and with the utmost good faith”.  

 THE ‘LANDS CASE’ : SOVEREIGNTY

28.   Court of Appeal Judges were rather more dogmatic on the question whether Iwi ceded sovereignty to the Crown:

Somers J : 

“I am of opinion that the question of sovereignty in New Zealand is not in doubt. On 21 May 1840, Governor Hobson proclaimed “the full sovereignty of the Queen over the whole of the North Island” by virtue of the rights and powers ceded to the Crown by the Treaty of Waitangi and over the South Island Stewart Island on grounds of discovery. These proclamations were approved in London and published in the London Gazette of 2 October 1840. The sovereignty of the Crown was then beyond dispute and the subsequent legislative history of New Zealand clearly evidences that. Sovereignty in New Zealand resides in Parliament.”

 Richardson J:  

“It now seems widely accepted as a matter of colonial law and international law that those proclamations approved by the Crown and the gazetting of the acquisition of New Zealand by the Crown in the London Gazette on 2 October 1840 authoritatively established Crown sovereignty over New Zealand.”

29.  The law is clear.  Now that the Leader of the Opposition has concurred with the three governing political parties that national sovereignty currently resides solely in the New Zealand House of Representatives (accountable to all electors) the politics appear to be clear as well This issue now seems to be rather inconsequential – a solution looking for a problem.

Barry Brill OBE JP LL.M(Hons) M.ComLaw is a former MP and Minister of Energy, Petrocorp director, and chair of the Gas Council, Power NZ, ESANZ, and EMCO. He is presently the Chairman of the New Zealand Climate Science Coalition.

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^[1] The term “Iwi” or “Tribe” is generally taken to include Hapu or sub-tribes.

^[2]   Note that Tribes (ie those already registered) have little incentive to add to the numbers of voting members.

^[3] Some have argued that Hobson (for the Crown) agreed to one thing and many Chiefs (for their Iwi) agreed to a different thing. If that were truly the case, there would have been no “meeting of minds” and without a consensus, there could have been no valid agreement or Treaty.

^[4]   Or perhaps an extension to Principle 2, depending on style preferences.