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The Treaty of Waitangi
has no Principles
© Peter Zohrab 2003-2005
The "Lands case" (New Zealand Maori
Council v Attorney General  1 NZLR 641 (HC and CA)) was a historic
court case, in that it was the first to attempt to distill some "principles"
out of the Treaty
of Waitangi (1840), which was the document under which New Zealand became
part of the British Empire. These "principles" had previously only
been alluded to in legislation, without being spelled out to any degree whatever.
The Lands case has since been followed and applied -- indeed its decisions
as to the "principles" have been incorporated into the conventional
wisdom about "Maori issues" in New Zealand. I will concentrate my
remarks on the reasoning of the whole Court, and on the judgement of the then
Court of Appeal President Cooke (later Lord Cooke of Thorndon).
A lot has been written on judicial activism [see,
for example D. Heydon: "Judicial
Activism and the Death of the Rule of Law" Quadrant (January 2003
- Volume XLVII Number 1-2) http://www.quadrant.org.au/php/article_view.php?article_id=277
-- last accessed 6 November 2005], and I think few would deny that the Lands
case is an instance of judges being ultra-confident as to their right and
ability to break new ground. This is not the place to enter into a discussion
of judicial activism, but I would like to make three rather speculative points
Judicial activism is a form of provider-capture -- i.e. it happens when
professionals (here: judges) decide that they know best, and that they
should regulate the parameters of the activity which they are paid to
perform -- i.e. they should have the right to decide when they need to
intervene to supplement the democratic process, as embodied in Acts of
Judicial activism tends to move the Law to the political Left, because
judges who are too conservative to be activist tend also to be conservative
in their political views -- so judicial activism is politically biased;
Judicial activism is linked to religion and ideology -- nowadays to
the ideology of Political Correctness, which is the dominant ideology
at Western universities, where judges received their training as Law students.
An ideology -- like a religion -- gives a judge great self-confidence,
and a belief that he/she can do no wrong if he/she follows his/her instincts.
Before looking at substantive issues, it is worth looking at issues of tone.
The Court uses hyperbolic language (page 642, lines 48-54) to describe the
duties of the Crown towards Maoris -- "utmost good faith", "analogous
to fiduciary duties", "active protection", "fullest extent
practicable", "infinitely more than a formality", and "insist
that it be honoured." This is -- taken as a whole -- certainly not judicious
language. It is emotive language, indicating that the judges have been swept
up in the Politically Correct tide which rewards with media adulation (and
peerages, in some cases) white males who make decisions which please Feminists
and ethnic lobby groups. The terms "infinitely" and "insist"
strike me as particularly indicative of a loss of rationality.
In addition, there is the question of which version of the Treaty was included
in the judgements. Instead of citing the two versions (English and Maori)
that were signed in 1840, President Cooke's judgement cites only the modern
(re-)translation into English by Professor Kawharu of the Maori version. This
is symbolic of President Cooke's apparent attitude that entry into secular
Heaven depended on riding rough-shod over the rights and interests of Non-Maoris.
This attitude permeates the atmosphere of Law Schools, in my experience.
It is obvious that there is a potential for pro-Maori bias in this translation.
The fact that the Crown accepted it for the purposes of this case just shows
that the Crown was negligent, and that the Crown in fact represents both the
Non-Maori and the Maori electorates, and is therefore not a true inheritor
or descendant of the British Crown which signed the Treaty in 1840. There
is thus no one to represent Non-Maoris in Treaty negotiations, which are to
that extent a corrupt and invalid process. I return to the issue of the translation
The Case Against Principles
The main argument against the Court's attempt to distill
some "principles" out of the Treaty of Waitangi is that this
was not necessary for the task it had to perform in the Lands Case. The main
issue in that case was the relationship between sections 9 and 27 of the State-Owned
Enterprises Act 1986, and section 9 crucially refers to the "principles"
of the Treaty of Waitangi -- without indicating what these might be.
However, it did not follow from those facts that the Court had to fill in
this "gap" left by Parliament, as it were.
Section 5(2) of the Treaty of Waitangi Act 1975 states:
"In exercising any of its functions under this section the Tribunal
(i.e the Waitangi Tribunal -- P.Z.) shall have regard to the 2 texts of
the Treaty set out in the First Schedule to this Act and, for the purposes
of this Act, shall have exclusive authority to determine the meaning and
effect of the Treaty as embodied in the 2 texts and to decide issues raised
by the differences between them."
The Waitangi Tribunal has no statutory role in the interpretation of other
Acts of Parliament, but the Treaty of Waitangi Act 1975 is the only Act in
which Parliament democratically instructs the courts as to how the Treaty
of Waitangi should be interpreted. So, if the Court of Appeal had seen itself
as a servant of democracy, it should have interpreted the one single word
"principles" in the State-Owned Enterprises Act 1986 in the context
of the method of interpretation set out in the Treaty of Waitangi Act. --
i.e. it should have had regard to both of the original language-versions of
the Treaty, as well as obtaining the meaning and effect of the Treaty from
the texts themselves, rather than from any "principles" invented
ad hoc by the Court. It was not a reasonable interpretation of the
single word "principles" -- without explicit words to this effect
-- that this was meant to overthrow the clear wording of the Treaty of Waitangi
Act as to the way the Treaty should be interpreted. It would have been a reasonable
interpretation to assume that Parliament meant by the shorthand "principles"
no more than to refer back to the method of interpretation that it had previously
On page 662, line 28 of the judgement, President Cooke states:
"The principles of the Treaty are to be applied, not the literal
words. As is well-known, the English and Maori texts in the first schedule
to the Treaty of Waitangi Act 1975 are not translations the one of the other
and do not necessarily convey precisely the same meaning."
We have to assume that the second sentence quoted above is meant to state
the reason for the conclusion stated in the first sentence. However, that
second statement is not precisely correct, and -- to the extent that it is
correct -- it does not justify the conclusion that the texts should be ignored
in favour of "principles".
It is well-known that the Treaty was first drafted in English and then
translated into Maori. What Cooke was referring to above was the fact
that the particular English draft that was signed in 1840 was not that
which was translated into the Maori version that was signed in that year,
but it is an exaggeration to say that the Maori version is not a translation
of the English version;
Cooke does not attempt to show that the differences between the English
and Maori versions are significant enough to support his conclusion that
the Court should apply the principles instead of the texts -- for the
simple reason that he would have failed to demonstrate that, if he had
tried (see discussion below);
Translations routinely and necessarily do not "convey precisely
the same meaning" -- and I say that as a former professional translator.
Interpretation of treaties authenticated in two or more languages
1. When a treaty has been authenticated in two or more languages,
the text is equally authoritative in each language, unless the treaty
provides or the parties agree that, in case of divergence, a particular
text shall prevail.
2. A version of the treaty in a language other than one of those
in which the text was authenticated shall be considered an authentic
text only if the treaty so provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning
in each authentic text.
4. Except where a particular text prevails in accordance with
paragraph 1, when a comparison of the authentic texts discloses a difference
of meaning which the application of articles 31 and 32 does not remove,
the meaning which best reconciles the texts, having regard to the object
and purpose of the treaty, shall be adopted":
Cooke (page 655, lines 32-34) decides not to address the questions of
whether the Treaty of Waitangi has a status in international law, and of
what this would entail for the Treaty's interpretation. This leaves a foul
taste in the mouth, as it prevents the judgement from being transparent.
There is no evading the facts that the Treaty of Waitangi was called a "treaty",
and that it is a bilingual document, so it would be natural to base its
interpretation on the theory and practice of interpreting treaties -- although
(as has been kindly pointed out to me) the Vienna Convention on the Law
of Treaties post-dates the Treaty of Waitangi and was not retroactive --
unless there was a more persuasive authority. Cooke does not cite any authority
for his recourse to "principles", so he is to all intents and
purposes building a castle in the air.
This may be what led Professor Matthew Palmer to be moved to remark:
"I have faced various queries from foreign and domestic commentators
as to whether the reference to 'principles' is a 'plot'."("The
Treaty ofWaitangi in Legislation"  NZLJ 207.)
Logically, one would have to derive one's "principles" from
the texts of the treaty anyway, so it is hard to see how the adoption
of "principles" could be seen as a solution to divergences in
meaning between two treaty texts (!);
Differences between the English and Maori texts of
the Treaty of Waitangi
I list the significant differences between the English and Maori versions
of the Treaty signed in 1840 in the table below. I have incorporated the bulk
of the the differences discussed in the article: "He Tirohanga o Kawa
ki te Tiriti o Waitangi" (Te Puni Kokiri, Wellington, 2001) -- which
is in English, despite the Maori title.
Differences between the English and Maori
texts of the Treaty of Waitangi
(I have put some differences in bold
(Differences of emphasis in the Preamble which are of no practical
importance, and due largely to the lack of legal vocabulary in the Maori
language in 1840.)
(Differences of emphasis in the Preamble which are of no practical
importance, and due largely to the lack of legal vocabulary in the Maori
language in 1840.)
"all the rights and powers of sovereignty"
"full exclusive and undisturbed possession"
"te tino rangatiratanga"
"of their Lands and Estates Forests
Fisheries and other properties
which they may collectively or individually possess so long as it is
their wish and desire to retain the same in their possession"
"o o ratou wenua o ratou kainga
me o ratou taonga katoa"
"exclusive right of Preemption"
(exclusivity not explicitly stated)
"Rights and Privileges"
"rights and duties"
(Postscript having no substantive impact.)
(Postscript having no substantive impact.)
I don't think the above differences justify abandoning the texts in favour
of "principles". To do this, the differences would have to be major
and intractable. Moreover, as stated earlier, if the texts did differ substantially,
it would be even more questionable to try to extract "principles"
from them !
As regards items nos. 2 and 3, the English version is wordier, but that
is typical of English Legalese. Maori society did not have a written language
or a legal system of that degree of formality, so the Maori translations would
necessarily be brief and less precise.
In item 4, the English "Forests Fisheries" is replaced by the
word for "villages" (kainga). If I could be sarcastic for a moment,
I have seen no evidence that Maoris have refused to rely on the English version
to assert their claims to forests and fisheries -- although, where it suits
them, they have been quick to claim that the Maori text's use of "tino
rangatiratanga" and "taonga" guarantees them more than do the
English equivalents ("full exclusive and undisturbed possession"
and "properties", respectively). There is a need in Equity to make
sure that the Maoris do not "get their cake and eat it too" -- they
should not be allowed to squeeze the maximum benefit out of the English version,
and then turn, later, to the Maori version, insist that that is the authoritative
version, and try to squeeze the maximum benefit out of that, in turn ! Abandoning
the text for "principles" makes it harder to keep track of this
sort of sleight-of-hand.
For Professor Kawharu to re-translate "taonga" back into English
as "treasures" amounts to fraud -- compounded by President Cooke's
reckless inclusion of Professor Kawharu's non-authentic version as the only
version of the Treaty which he cites in his judgement. . The Treaty was written
first in English and then translated into Maori. So much is certain and undisputed.
The word "taonga' was correctly chosen to translate the English word
"properties" -- I don't think anyone disputes that, either. Indeed,
if you look up "property" in the Concise Maori Dictionary (1973,
Wellington: AH & AW Reed), you find "taonga" as the only Maori
According to Article 33 of the Vienna Convention on the Law of Treaties,
the proper approach to such issues is to adopt the meaning which best reconciles
the texts, having regard to the object and purpose of the treaty. If you look
up "taonga" in the above-mentioned dictionary, you find that it
lists the two English equivalents: "possessions" and "valuables".
The word "possessions" is very similar to "property",
and the word "valuables" is very similar to Professor Kawharu's
word "treasures". The concept "possessions/property" is
wider than the word "valuables/treasures", in that all valuables/treasures
are also possessions/property, but not all possessions/property are valuables/treasures.
That would be one reason for preferring the word "property". However,
the most telling argument in favour of the word "property" is that
that word is a valid meaning of the word "taonga", and it is the
word that is present in the English version.
The article "He Tirohanga o Kawa ki te Tiriti o Waitangi" states
that the word "taonga" is "a more abstract and wide-ranging
term" than "properties", and is likely to have included intangible
valued possessions such as genealogical knowledge and important customs. Assuming
it is true that "taonga" could include items which would not normally
be included in the word "properties", that is not, in itself, very
significant in this context -- unless it was shown that the Maori signatories
at the time actually believed that genealogical knowledge and important customs
Every word in every language has various shades of meaning, and different
shades are highlighted by the context on different occasions. For example,
the English word "saw", as a noun, can designate a range of cutting
tools from hacksaws to chainsaws. If the context is a discussion about cutting
metal, the word "saw" would be interpreted as referring to a hacksaw
-- not to a chainsaw. The issue at hand is which of the shades of meaning
of "taonga" are relevant here. When the Treaty was signed, were
the Maori chiefs told, or were they thinking, that the word "taonga"
referred to abstract entities such as genealogical knowledge, customs, and
the Maori language ? I think that is very unlikely. And even if that was the
case, that would be overridden by Article 33 of the Vienna Convention on the
Law of Treaties.
There does seem to be a problem with item 5 -- the exclusivity of the Government's
right of preemption -- but I don't think that is an important issue nowadays
in terms of Maori-Non-Maori relations. As far as item 6 is concerned, my elementary
knowledge of Maori is insufficient to understand the relevant part of the
Maori version, so I have to rely (paradoxically) on Professor Kawharu's version.
He says that the Maori translation of "Rights and Privileges" means
"rights and duties". That counts against any claim that "te
tino rangatiratanga" means "autonomy", because it might seem
contradictory for the Treaty to intend that the Maoris should have "duties"
towards the Crown and yet be autonomous. Even the phrase "Rights and
Privileges of British Subjects" in the English version implies duties,
since British subjects (the menfolk, at least) did have duties to the Crown
-- especially in time of war.
The Principles themselves
Assuming, for the sake of argument, that the Treaty could or should be interpreted
in terms of "principles", let us look at the actual principles that
the Court in the Lands case chose. As mentioned earlier, there is a paradox
here, in that it is hard to derive convincing principles from two texts which,
ex hypothesi, are deemed to be incapable of being interpreted without
the help of such principles. What, then, is the source of the principles ?
Astoundingly or unsurprisingly (depending on your level of cynicism), the
judgements give few clues as to how the learned Justices arrived at their
principles -- other than a reference to whatever a Court might assume to be
the current (and changeable) spirit of the times, as to the relationship between
Maoris and non-Maoris (page 664, lines 1-22) ! Since no overt mechanism has
been explained for arriving at principles, it is not clear what does and what
does not constitute a "principle". Nevertheless, I discuss below
what appear to have been described as principles by a majority of the learned
Justices in the Lands case.
There appear to be two types of principle -- the type which emerges in some
way from the two texts of the Treaty, and the type which would presumably
apply to all agreements, contracts and treaties (which we could call "Metaprinciples").
Protection of Maori Land -- this is noncontroversial, and would surely
emerge from any direct interpretation of the texts themselves;
Active Protection of the Maoris -- it is hard to see any textual grounds
for either accepting or rejecting this principle;
Redress of Grievances -- there is not the slightest mention in the Treaty
of the issue of grievances. As far as I am aware, legal documents are
not taken as implying any mechanism for the redress of grievances that
is not explicitly provided for. There is of course a moral duty to redress
grievances, and other documents (such as the Treaty of Waitangi Act 1975)
may well provide mechanisms, but there is no textual basis for importing
such an obligation into the Treaty itself.
Good Faith -- that goes without saying, but is there any reason for
it to be "utmost" good faith (page 642, line 49) ? I am not
aware that a Government is conventionally expected to have a fiduciary
relationship of "utmost good faith" with any of its citizens;
Reasonableness -- that also goes without saying;
Partnership -- this is the most "creative" and unfounded of
the principles. The Treaty-Partners in 1840 were the British Crown's representative
and certain Maori chiefs. There is no reading of the texts, nor any principle
of treaty-formation (or of contract-formation) whereby the partners who
sign the document in question remain partners under it -- unless the document
itself creates or maintains that relationship of partnership. The Treaty
of Waitangi neither mentions nor implies the term "Partnership"
-- indeed, Article 3 implies the extinction of the Partnership
relation, by stating that the Maoris would henceforth be Subjects
(under Article 3 of the English version) of the British Crown.
When I was a student of the course "Legal System" at Victoria
University of Wellington, my tutor, who was also the tutor for the special
tutorials for Maori and Polynesian Law students, never got as far as discussing
Article 3 of the Treaty, in her tutorial on The Treaty. I do not believe that
was an accident, since Article 3 is an obstacle for those people (who are
the only ones allowed to teach Public Law at New Zealand universities, as
far as I can see) who want to pretend that the Treaty of Waitangi was about
the Crown giving rights to Maoris and expecting nothing (or nearly nothing)
from the Maoris in return.
On page 664, line 1, Cooke states that the Treaty signified a "partnership
between races," and it has become common to refer to "Biculturalism"
as between Maoris and Europeans -- but neither the word "race" nor
the word "culture" is mentioned or implied in the Treaty. The British
Empire was already multicultural (at least, it included many races and cultures)
in 1840, and there is absolutely no evidence that the Treaty was intended
to exclude races or cultures other than Europeans and Maoris. This is a crucial
issue in contemporary New Zealand, where Maori racism towards Asians has become
prominent, in addition to other forms of racism.
The adoption of a "principles"-based decision in the Lands case
was politically driven, based on an unscientific and subjective impression
of what the consensus and the trends in New Zealand society were as regards
Treaty issues (page 664, line 22), and on an assumed consensus in the Legal
fraternity (page 655 line 44), which -- to the extent that it existed -- was
itself the product of indoctrination by the unrepresentative Media-University
Complex (MUC) in general, and by the Law schools, in particular. The principles-based
solution was not transparent, and was only made possible by a deliberate refusal,
on the part of the Court, to examine powerful arguments that would have led
to a different approach (page 655, line 31).
21 February 2017