The Treaty of Waitangi, signed in 1840 between Māori and the British Crown, is not law, but since 1975 many New Zealand laws have referred to the principles of the treaty. The first law to do so was the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal. The act says that Māori can bring a claim to the tribunal about a Crown policy or practice (amongst other things) which was or is ‘inconsistent with the principles of the Treaty’.
Since the 1975 act there have been many other official references to treaty principles, all attempting to define the meaning of the Treaty of Waitangi in contemporary New Zealand society. Treaty principles have been referred to in:
- court cases
- new laws
- Waitangi Tribunal findings
- a 1989 government statement.
No final and complete list
There is no final and complete list of treaty principles. Instead, official documents have referred to treaty principles in general terms, without including the actual treaty text, because the English and Māori versions of the treaty are not direct translations of each other, so difficulties arise in interpretation. In 1983 the Waitangi Tribunal said, ‘The spirit of the Treaty transcends the sum total of its component written words and puts literal or narrow interpretations out of place.’1
In 1987 Justice Robin Cooke described the treaty as ‘an embryo, rather than a fully developed and integrated set of ideas … the principles of the Treaty of Waitangi … are taking effect only slowly but nevertheless surely. It is as well to stress also that they are of limited scope.’2
Another reason the treaty text is not included in official documents is that the treaty was signed in 1840, and its words reflect the issues relevant to the treaty partners, Māori and the Crown, at that time. In order to apply the treaty in a context relevant to the Crown and Māori in the present day, the Waitangi Tribunal and the courts have considered the broad sentiments, intentions and goals of the treaty, and identified its principles on a case-by-case basis. Some of these principles have become very well established. Others have developed over time. Some principles have been quite controversial.