Ngāi Tahu report
In 1991 the Waitangi Tribunal reported on a claim dealing with historic grievances by the South Island iwi Ngāi Tahu.
Part of the fabric
The Ngāi Tahu claim to the Waitangi Tribunal was known as the ‘nine tall trees’, referring to the nine main claims Ngāi Tahu made against the Crown. In its report on the claim, the tribunal cited an opinion that the courts could possibly apply the principles of the treaty even when they were not referred to in specific laws, since ‘those principles had become part of the fabric of New Zealand society, of the way in which New Zealand thought about itself.’1
The three-volume Ngāi Tahu report drew on the 1987 lands case and extended its discussion of treaty principles. The report produced a comprehensive framework of principles that reappeared in some form in other tribunal reports over many years.
In the Ngāi Tahu report, the tribunal talked about the overarching ‘principle of exchange’ which it regarded as the fundamental compact embodied in the treaty. Inherent in this principle of exchange is the notion of reciprocity – ‘the exchange of the right to govern for the right of Maori to retain their full tribal authority and control over their lands and all other valued possessions’.2
The Waitangi Tribunal has also identified other treaty principles:
- In 1991 the Tribunal said, ‘The cession by Maori of sovereignty to the Crown was in exchange for the protection by the Crown of Maori rangatiratanga’.3
- The principles of partnership and good faith relate closely to the principle of exchange. The treaty is a partnership between Māori and the Crown, which requires the partners to act toward each other ‘reasonably and with the utmost good faith.’4
- Active Crown protection of Māori interests means that the Crown cannot protect Māori by avoiding actions that breach the treaty. Instead, the Crown must act to protect Māori treaty rights, in order to honour the treaty. The tribunal has said that ‘the word “guarantee” meant more than merely leaving the Maori people unhindered in their enjoyment of language and culture. It required active steps to be taken to ensure that the Maori people have and retain the full exclusive and undisturbed possession of their language and culture.’5
- The Crown fiduciary duty developed in the 1990s when the Crown made decisions relating to assets such as radio broadcasting and energy. In this case, a fiduciary relationship is when a junior partner (Māori) trusts the more senior partner (the Crown) to act in their best interests. The tribunal has said, ‘Because the Crown is in the more powerful position as the government in this partnership, the Crown has a fiduciary obligation to protect Maori interests.’6
- The principle of options means that Māori can pursue a direction based on personal choice. The tribunal has explained that the treaty protected traditional Māori rights, and also gave Māori the rights of British subjects. As a result, Māori have the option to operate in one or other world, or to ‘walk in two worlds’.7 Most importantly, Māori should choose this for themselves.
- The consultation principle has developed over time. Originally the tribunal regarded it as a courtesy for the Crown to consult Māori, but in later years this strengthened into a view that the Crown had a duty to consult Māori. In 1999 the tribunal said, ‘Consultation between Treaty partners acting reasonably and with the utmost good faith to one another required, in our view, fully fledged discussion … with every attempt to find an agreed position that is in accord with Treaty principles.’8
- The development principle is about the extent to which the treaty can be applied to resources and technologies that were unknown to the treaty partners in 1840. In 1993 the tribunal said that Māori interests in resources could not be constrained to traditional or pre-treaty technology, but included the right to develop resources for economic benefit. But the tribunal set limits to the development principle in 1995 with the kiwifruit claim, saying, ‘It would, in our view, be an unjustified straining of Treaty principles to hold that the right to develop … a treasure could extend all the way to the modern kiwifruit export trade.9