Deep divisions over Treaty's matters of principle

Significant pieces of legislation make it clear that the Treaty of Waitangi must be honoured but, as political editor AUDREY YOUNG reports, it is less clear what that means.

It is not hard to get an Opposition MP to talk about the "principles of the Treaty of Waitangi" in legislation. Getting someone from the Government is a bit harder. It seems no one is responsible for treaty clauses.

Apparently it's not the concern of Deputy Prime Minister Michael Cullen, who heads the Cabinet's legislation committee. He helpfully suggested Treaty Negotiations Minister Margaret Wilson would be a better person to talk to.

After two days she agreed to talk, but she wanted to make it crystal clear that she was responsible for historical treaty settlements, and that she was not the Minister for Treaty Clauses.

"I don't want to be set up as an authority for something I have no direct ministerial responsibility for," she said.

One can understand the sensitivity around the issue, if not the line of accountability.

Getting rid of "treaty principles" in legislation is part of the Orewa platform that propelled Don Brash and his National Party back into political contention.

On Monday he announced that the party had commissioned resource management specialist Owen McShane to redesign the Resource Management Act without references of "prejudice".

The Resource Management Act 1991 and the Local Government Act 2002 are frequently cited by Opposition MPs as examples of treaty principles in legislation.

But there are plenty of other examples. According to the Ministry of Justice there are 22 laws which impose duties or responsibilities in relation to the Treaty of Waitangi and its principles; there are four statutory appointment processes involving Treaty of Waitangi considerations; and 13 laws in which there is general reference and recognition of the Treaty of Waitangi. The data was updated in March last year.

The references vary in strength of language. For example, the Conservation Act 1987 says: "The Act is to be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi."

That is stronger than other versions, as in, for example, the Crown Minerals Act 1991 which says: "All persons exercising functions and powers under the Act are required to have regard to the principles of the Treaty of Waitangi."

The Hazardous Substances and New Organisms Act 1996 says: "All persons exercising powers and functions under this Act are required to take into account the principles of the Treaty of Waitangi."

And the State Owned Enterprises Act 1986 says: "Nothing in this Act permits the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi."

That particular clause in that particular law had a huge impact on the legal interpretation of the Treaty of Waitangi and the definition of its principles.

Act leader and former Labour Minister Richard Prebble calls it "a piece of accidental law-making of the worst sort".

It was one of the first Acts in which a reference was made to the principles of the treaty.

Prebble claims that Sir Geoffrey Palmer put it in as "window dressing" following discussions between the late paramount chief of Tuwharetoa Sir Hepi te Heuheu and former Prime Minister David Lange.

A court case over disposal of state-owned land was then taken by the Maori Council on the strength of that clause and led to a landmark Court of Appeal decision in 1987 establishing the principle of "partnership".

Other principles are identified in various court decisions and Waitangi Tribunal reports and will continue to be identified, but the 1987 case produced the mother of all treaty principles - partnership.

Even Sir Geoffrey said he had been surprised at the judgment. He told the Herald this week that the clause had had "unexpected consequences".

"It did come as somewhat of a surprise to me that the Court of Appeal read that phrase up rather than read it down," he said, explaining that the court had given the clause "a very wide and generous interpretation".

These days Sir Geoffrey is advocating that Parliament be as precise as it can be over such references.

"A vague reference to treaty principles is not as good as a specific reference to what it is you want done."

"Partnership" sits at the heart of the political contest over treaty principles in legislation.

National and Act do not support the court finding that the treaty is akin to a partnership, unlike Labour, which views the treaty as a pact to be celebrated and which carries real obligations.

"The concept of partnership has never been approved by Parliament," Prebble said. "It has just been implemented by the civil service."

Court decisions flowing from an acceptance of "partnership" as applied to the treaty reflect a duty to consult and act in good faith. That has led to provisions for consultation being written more and more into law.

Those provisions for consultation with Maori are a particular target for National, which says they are distorting the concept of democracy.

Treaty spokesman Wayne Mapp agrees that his concern is not so much that the principles are never defined - as Brash claimed - but that they are defined and that he disagrees with them.

He blames Parliament in the first instance for having introduced the "vague concept" of the principles of the treaty, then blames the court for going "too far" in defining primarily that it meant partnership.

"It is linked to this flawed notion that Maori have special consultation rights on the governance of New Zealand generally - local government, health authorities, universities."

Mapp can't answer the question of when National decided it had rejected the notion of partnership, but nothing in its record of law-making between 1990 and 1999 suggested it challenged the 1987 decision.

There have been changes under Labour, however. Since it returned to power in 1999 treaty clauses have become more detailed.

The Local Government Act 2002, for example, sets out specific measures that local authorities must take to involve Maori in decision-making, as does the Public Health and Disability Act 2000.

Such was the Pakeha outcry over whether treaty clauses in the latter Act gave Maori extra health service entitlements, that a clause was inserted saying that nothing in the Act entitled a person to preferential access to health services on the basis of race.

The Act also specifies ways in which District Health Boards should involve Maori in decision-making to improve health outcomes for Maori in order to recognise and respect the Treaty of Waitangi.

Margaret Wilson says the greater specificity is a response to the "political correctness" of former Governments, including National, which inserted phrases as "a meaningless mantra".

"I and this Government have tried to make these clauses mean something - actually express in concrete terms in the legislation what it means.

"It is not just put in any piece of legislation willy-nilly. It has to relate to something in the treaty."

She is adamant that without specific provision for consultation with Maori in law, they would not be consulted.

"It is like a human principle. If there wasn't legislation saying people should have holidays, some employers wouldn't give them holidays. Some would, but some wouldn't."

While there is no co-ordinated approach in Government to treaty clauses, there is a requirement that all ministers when getting approval for legislation in their area must consider the Treaty of Waitangi.

A Cabinet directive of March 23, 1986 said that all future legislation referred to it "at the policy approval stage should draw attention to any implications for recognition of the principles" of the treaty; and departments should consult with appropriate Maori people on significant matters affecting the application of the treaty.

The Cabinet manual also requires ministers when making bids for bills and setting priorities to draw attention to implications for "the principles of the treaty" - earlier manuals referred to the treaty rather than the principles.

So what exactly are the "principles" of the Treaty of Waitangi?

They have been spelled out in various ways, though they are not defined in the actual statutes which refer to them.

Ask treaty law specialist Tim Castle to define the treaty principles and he lists them: partnership; protection of Maori rangatiratanga; tribal right of self-regulation; Crown's duty to redress past breaches; Crown's duty to consult; mutual benefit; options; active protection; and significance of the treaty.

Lord Cooke, in the famous 1987 land case, said that whatever the precise legal status of the treaty "it probably makes no practical difference whether one speaks of the treaty or the principles of the treaty".

According to an official Government guide to the principles of the Treaty of Waitangi (He Tirohanga o Kawa ki te Tiriti o Waitangi) the fact that the treaty has different meanings in the Maori and English versions, "coupled with the need to apply the treaty in contemporary circumstances, led Parliament to refer to the 'principles' of the treaty in legislation, rather than to the treaty texts".

The Government defined and issued its own set of five treaty principles in 1989. These are still cited by ministers from time to time, when the Opposition claims they have never been defined.

The principles are stated like this:

1. The principle of Government also known as the kawanatanga principle - the Government has the right to govern and to make laws.

2. The principle of self-management also known as the rangatiratanga principle - the iwi have the right to organise as iwi and, under the law, to control their resources as their own.

3. The principle of equality - all New Zealanders are equal before the law.

4. The principle of reasonable co-operation - both the Government and the iwi are obliged to accord each other reasonable co-operation on major issues of common concern.

5. The principle of redress - the Government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.

Margaret Wilson says they all relate back to the three clauses in the treaty - to governance (article one), the principle of self-management (article two), and the principle of equality (article three).

She is clearly sick of the negativity surrounding the treaty.

"People constantly ignore the fact that the Crown signed an agreement. The Crown did not do what it did in other countries and just colonise through conquest or settlement.

"It signed an agreement and as such, forever and a day in my personal view, was blessed with having to make decisions through agreement, in other words a fundamental basis of democracy.

"I just think that is positive and it is that which makes New Zealand unique. So a denial of that would take away quite a profound uniqueness."

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