The Principles of the Treaty

The Doctor

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The Law Society is consulting on making it compulsory for its members to follow the “principles of the treaty of Waitangi” in all their work. Government departments, local councils and even some private entities have committed themselves in writing to follow these “principles”.

Note that these entities do not commit to following the treaty itself, but rather, the principles of the treaty. These principles must, therefore, be something distinct from the three articles of the treaty itself. Otherwise, they would be referred to as the articles of the treaty.

These principles must be very important. Indeed, they are treated as if they are even more important than the treaty itself.

Helpfully, the Waitangi Tribunal has produced a guide that explains the principles. According to the tribunal the principles are partnership, active protection and redress. And it analyses these principles as they have been established by the courts and the tribunals’ own reports.

Now, as ExPFC has recently pointed out on the BFD, we ought to be reading and taking note of what the law and legislation actually says, rather than a government department’s interpretation of that law or statute. And I followed the same approach to the tribunal’s guide. I carefully read what the courts said (ie case law) and ignored what the tribunal said in its reports (simply the interpretation of a government department).

1. Partnership

The Court of Appeal summarised the famous Lands case (1987) as follows:

the Treaty created an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably, and honourably towards the other. (Quoted in the principles guide p78)

Now that got my attention. The word fiduciary is a special one. It means that the court is applying the laws of equity. Equity is an ancient set of rules that were administered by the chancery in England until the Judicature Act 1875, when they were folded into the High Court in England.

Equity concerns itself with trusts and also considers the fairness of other court rulings that, while being correct in law, were jarring to the conscience. All fiduciary duties (looking after other people’s money and property) are the subject matter of Equity.

Down further, the court neatly summarises some of the principles of equity: the “positive duty to act in good faith, fairly, reasonably, and honourably towards the other”. Honourably is another one of those key words. It confirms the court is applying equity.

Now let’s consider the word partnership. The court does not write that the parties are in partnership. No. It writes that the relationship is akin to a partnership (i.e. it bears a family resemblance to a partnership but is not a partnership). It some ways it is like a partnership in that the parties should follow the rules of equity but in other ways it is not like a partnership. The Court of Appeal writes in the Forests case (1989):

Partnership certainly does not mean that every asset or resource in which Maori have some justifiable claim to share must be divided equally. (Guide p79)

And in the in the Lands case again:

The principles of the Treaty do not authorize unreasonable restrictions on the right of a duly elected government to follow its chosen policy. (Guide p79)

Thus the word “partnership” is really a misnomer. What the court is really saying is that the parties should follow the rules of equity, but they are not equal partners in the sense of being business partners. I think, what they mean is that the parties are in a trust relationship. One is the trustee (Crown) and one is the beneficiary (Maori and everyone else). Trustees have a duty to act honourably, in good faith and consult reasonably with the beneficiaries of a trust when making decisions (compare sections 25, 52-53 of the Trusts Act 2019). And this view is born out when we consider the next principle.

2. Active Protection

The Appeal Court writes in the Land case:

… the duty of the Crown is not merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable. (Guide p93)

Hmm. That sounds exactly like the duty that a trustee has toward beneficiaries. For example, section 32 of the Trusts Act 2019 states:

A trustee must consider actively and regularly whether the trustee should be exercising one or more of the trustee’s powers.

What powers are those? They are extensive. Part 4 of the Trustee Act 2019 has many examples. Remember that the rules of equity and the powers of trustees are not defined by the Trusts Act. They are much older and more established (indeed, they trump even the common law) but the Trusts Act is a source of ready examples.

3. Redress

Of course, if a trustee fails in his duty to look after trust property correctly, the beneficiaries can sue for breach of trust. Justice Somers writes for the Appeal Court in Lands case again:

I think a breach of the terms of the Treaty by one of its parties gives rise to a right of redress by the other – a fair and reasonable recognition of, and recompense for, the wrong that has occurred. That right is not justiciable in the Courts but the claim to it can be submitted to the Waitangi Tribunal. (Guide p101)

Why should a case go to the Waitangi Tribunal and not the courts? Look at section 143 of the Trusts Act. The trustees (Crown) have the power to refer a dispute to an Alternative Dispute Resolution venue.

But it gets worse. According, section 144 of the Trusts Act:

If a trust has any beneficiaries who are unascertained or lack capacity, then, for a matter relating to that trust that is subject to an ADR process,—

(a) the court must appoint representatives for those beneficiaries; and

(b) those representatives may agree to an ADR settlement, or agree to be bound by an arbitration agreement and any arbitral award under that agreement, on behalf of the beneficiaries who are unascertained or lack capacity; and

(c) any ADR settlement must be approved by the court.

The trustees (Crown) can direct that claims for redress go to Alternative Dispute Resolution (the Waitangi Tribunal) and that regular Maori people under (legal) disability (which is most Maori and everyone else) are to be represented. And who does the Crown choose to represent ordinary Maori? Why, it is those elite Maori iwi corporations. The fix is in.

But regular Maori and we need not go along with the ruse.

1. We must recognise the Treaty and He Whakaputanga for what they are: a trust.
2. We are all beneficiaries of the trust and can make the same demands on the trustees that are outlines in the tribunal’s guide.
3. The principles of the treaty are really the principles of equity as we all, as beneficiaries, can insist that the trustees (Crown) act in our own best interests.

Disclaimer: I am neither bar member nor a treaty scholar.