Do Māori have rights other New Zealanders don’t have? Legal experts explain

Last week's protest at Parliament against David Seymour's Bill. Photo / Mark Mitchell

• Rights and principles relating to the Treaty of Waitangi are in sharp focus.
• The Treaty Principles Bill aims to minimise any additional Māori rights and to abolish existing principles.
• The basis of those rights are discussed here by legal experts.

After the Act Party’s Treaty Principles Bill passed its first reading, the party ran an advertisement claiming that the interpretation of the Treaty of Waitangi “has resulted in different rights for different groups of New Zealanders”.

So we asked a group of legal experts whether Māori have rights that other New Zealanders don’t have and if so, on what basis.

They were: former Treaty Negotiations Minister Sir Douglas Graham; former Attorney-General Chris Finlayson KC; practising lawyer Karen Feint KC; former Prime Minister Sir Geoffrey Palmer KC; former Attorney-General David Parker; and Treaty specialist and academic Carwyn Jones.

The overwhelming view among those approached is that the Treaty of Waitangi has confirmed existing rights rather than created new rights.

Legal experts from left: David Parker, Dr Carwyn Jones, Sir Douglas Graham, Karen Feint KC, Christopher Finlayson KC, and Sir Geoffrey Palmer KC.

The view was that unless those rights which existed in 1840 had been abandoned or clearly extinguished through the law, they continued to exist.

And the view that the Treaty does not create new rights is contained in advice to decision-makers in a Cabinet Office circular (number five) issued in 2019.

It said: “The Treaty may justify different treatment of Māori interests or involvement of Māori in an issue, but it does not confer greater rights on Māori than the government owes to all New Zealanders”.

The advice in that circular still stands but a new circular has been issued advising decision-makers that under government policy, targeted provision of services must be on the basis of need, not race. The assumption is that when Māori are targeted, it is on the basis of need.

One of the first announcements by Health Minister Shane Reti, for example, was to fund Māori health providers $50 million over two years to accelerate poor immunisation rates.

Most of the funding was directed at Whanau Ora providers to immunise mainly but not exclusively Māori clients (about 70% of Māori children are immunised at two years, compared with 77% of all children, and the Government’s target is to increase all rates to 95%).

The issue of different treatment to close gaps in social statistics has been debated for 40 years. The Ka Awatea report produced for Winston Peters in 1991 when he was Māori Affairs Minister, set it out.

“Although interpretation of what constitutes equity may be contentious,” it said, “there is increasing consensus that whereas equality involves identical treatment of all individuals and groups, equity may involve different treatment of individuals and groups where justified.”

The issue of rights, interests, treatment, and principles under the Treaty has been brought into focus with the Principles of the Treaty of Waitangi Bill in the name of Act leader David Seymour.

Last week's protest at Parliament against David Seymour's Bill. Photo / Mark Mitchell

In 1975 Parliament gave the Waitangi Tribunal and the courts the right to define the principles of the Treaty of Waitangi – allowing it to be applied in a changing modern context without reference to the explicit articles.

The Act Bill would abolish principles developed over 40 years and redefine the principles according to Act policy.

It is partly on the basis of established Treaty principles such as partnership, active protection, participation, redress, and equity that some laws require consultation with relevant iwi or have formed the basis of policies, such as Māori wards in local government, co-governance and establishing a Māori Health Authority (recently abolished).

The most contentious part of Seymour’s Bill, the second principle, says that it will protect different rights hapū and iwi Māori had at the time they signed the Treaty in 1840 - but only if they are allowed for in a Treaty settlement bill. The corollary of that is that the bill extinguishes the rest.

Act says its principles are based on the Treaty itself, which in the English version “confirms and guarantees” the chief and tribes undisturbed possession of the lands and estates, forest, fisheries and other properties; and in the Māori version agreed to protect the chief and subtribes and all the people of New Zealand in their tino rangatiranga (unqualified exercise of chieftainship) over their land, villages and treasures.

The Bill is destined to be voted down at its second reading in May next year, after a select committee process, but the question remains: do Māori have different rights to other New Zealanders?

Sir Douglas Graham said the question of Māori rights was the number one issue in regard to the Principles Bill. Photo / Dean Purcell

Sir Douglas Graham, a former Treaty Negotiations Minister, Attorney-General, and Justice Minister said it was the number one issue.

“The answer is yes, they do have different rights and they arise from the common law,” he said.

When English-speaking migrants arrived in Canada, America, Australia, and New Zealand, and elsewhere, they had brought with them the English common law.

The English common law said indigenous people had customary rights, relating to areas such as land, fishing, and food gathering.

“They all had those common law rights. They weren’t created by the Treaty. They were confirmed by the Treaty but they pre-existed.

“Over time, many of them have been lost because they can be lost through either abandonment – and once lost, they can’t be recovered - or by extinguishment by Parliament. Otherwise, they still exist.

“For example, Ngāi Tahu’s hapū living on Stewart Island, Rakiura, had exclusive rights to collect mutton birds in the Titi Islands, a right that is protected in the 1998 settlement legislation.”

“Lots of other iwi have customary rights that we don’t share.”

Any rights that were not written into Treaty settlement laws would be extinguished by Act’s Bill.

It was simplistic to suggest that everybody had to have equal rights “or we’re going to hell and back”.

Graham was Treaty Negotiations Minister in the 1990s for the first two big Treaty settlements, Waikato Tainui and Ngāi Tahu, which followed on from the historically important Lands case in 1987 in which the Court of Appeal said the Treaty of Waitangi was akin to a partnership.

Graham believed the judges concerned had later regretted using the word “partnership” in their judgment.

“But what they were trying to say was that partners have a fiduciary duty to each other to act fairly and honestly and that’s really what Māori and non-Māori have as well. That’s pretty unobjectionable I would have thought.”

Ngāi Tahu's Sir Tipene O'Regan and Sir Douglas Graham at Parliament in 1997. Photo / Mark Mitchell

Christopher Finlayson KC, another former Treaty Negotiations Minister and former Attorney-General, said there were some rights that Māori had that went back hundreds of years.

“So there are certain customary rights that maybe they do have that we don’t have but that’s not a cause of grave concern. That is simply a reflection of the way the world is.”

When asked if Māori had a right to be consulted more than other New Zealanders in some situations he said: “as a Treaty partner, yes”.

It was especially so in relationship to tāonga and, he said, they had a right to be consulted in a genuine way, not at the 11th hour.

“It is a Treaty between Crown and Māori.”

It was not a Treaty between people and the difference was “extremely important”.

Former Attorney-General Christopher Finlayson KC said it was extremely important to remember the Treaty was an agreement between Māori and the Crown. Photo / Mark Mitchell

Karen Feint KC agreed that Māori had different rights to other New Zealanders, including the right to exercise tino rangatiratanga.

“Yes, they have different rights and those are rights that are guaranteed in the Treaty of Waitangi but they are not necessarily sourced in the Treaty,” she said.

“That is a function of our history. The customary rights they have are derived from tikanga and their occupation of Aotearoa over the better part of a millennium before 1840 and are rights that survived the acquisition of sovereignty by the Crown.”

The effect of cases such as the 2003 Ngāti Apa case on the foreshore and seabed confirmed that customary property rights subsisted after 1840.

“Those rights were confirmed and guaranteed in article two of the Treaty of Waitangi, and the te reo version confirmed that Māori could continue to exercise their tino rangatiratanga or political autonomy/self-determination.”

That meant that they had the right to exercise authority in relation to their communities, their lands, waters, and their taonga.

So is the Treaty of Waitangi itself legally enforceable?

Feint said the law has said that the rights under the Treaty of Waitangi were not legally enforceable unless they were incorporated into statute.

“That has been the law since the Te Heuheu Tukino case of 1941.”

But she said the Supreme Court has been whittling that away with particular decisions – case law which other courts are obliged to follow unless overturned in legislation.

Karen Feint KC specialises in Treaty of Waitangi law.

She cited its important decision in the 2021 Trans Tasman Resources case, which included an assertion that legislation be interpreted consistently with the Treaty of Waitangi.

Feint, who organised a recent open letter of 42 KCs to the Prime Minister and Attorney-General opposing Seymour’s bill, recently acted for the customary owners of the Nelson Tenths who have successfully sued the Crown over a land deal in the 1830s.

Graham also talked about enforcement of the Treaty, although its reference in statutes is to the principles of the Treaty, not to the text.

“Normally, until a treaty is referred to in statute, it’s not enforceable in the courts because the courts can only enforce the law,” he said.

“Over the last 40 years, Parliament has referred to the Treaty of Waitangi in so many statutes now that it just can’t be argued it is not part of New Zealand law.“

Former Attorney-General David Parker said additional rights normally applied to hapū and iwi, not to individuals. Photo / Mark Mitchell

David Parker, the Attorney-General for six years under the last Labour Government gave a short written response to the question of whether Māori had different rights to other New Zealanders.

He said most laws, such as the law of contract, tort, criminal law, and the NZ Bill of Rights Act (including the right to vote) applied equally to all New Zealanders.

Treaty settlements were given legislative force by individual acts.

“Those statutory rights can include compensatory commercial rights of first refusal to buy Crown assets if sold. Settlements also often set out rights of consultation.

“Sometimes other legislation also references obligations to Māori via Treaty clauses, or as a result of national resource settlements such as in fisheries.

Those were most often giving expression to article two of the Treaty of Waitangi, but also sometimes arose from unexpired common law property rights that had always existed, for example in the foreshore and seabed / takutai moana.

“So while most laws apply to all New Zealanders, Māori have some additional Treaty and common law-based rights which normally apply at the hapu or Iwi level rather than individually.”

Dr Carwyn Jones is a Treaty law specialist as an honorary adjunct professor in Māori studies at Victoria University and the lead academic in Māori laws and philosophy at Te Wānanga o Raukawa.

He concurs with other legal experts that the Treaty did not create new rights for Māori.

“Probably the only new rights that the Treaty creates is the right for the Crown to establish some form of government here,” he said.

“Otherwise it is confirming the ongoing rights of tino rangatiratanga which include all those rights previously exercised and continuing to be exercised.

Dr Carwyn Jones, honorary adjunct professor in Māori studies at Victoria University and lead lecturer in Māori laws and philosophy at Te Wānanga o Raukawa. Photo / Supplied

“Those rights that are guaranteed in article two are not created by article two. It is a mechanism to guarantee their continued recognition,” he said.

The right of Māori to self-determination was recognised in article two of Te Tiriti, an agreement between iwi, hapū and the Crown.

But he stressed that everyone enjoyed the same fundamental human rights.

“One of the things that is well understood through the human rights system is that there are different ways in which different groups of people need to have those rights recognised.

The United Nations Declaration on the Rights of Indigenous People set out the ways in which indigenous people’s rights needed to be recognised.

“That declaration wasn’t intended to create any new rights … but it was saying for indigenous peoples, here are the particular ways those need to be recognised.”

Asked if references in law to the “principles of the Treaty” created rights, he said it created a legal mechanism, rather than a Treaty right or a human right, to interpret and implement the articles of the Treaty within New Zealand law under current circumstances.

Jones acknowledges that many of the people opposing Act’s Principles Bill are people who do not even support the current principles but are doing so in order to preserve the status quo and not to go backwards.

He is among those who believe the principles generally are a watered-down version of the rights guaranteed under the Treaty. He believes they are “designed to fit the way in which the Crown currently understands and asserts its sovereignty which does not allow for a full expression of tino rangatiratanga”.

However, he said the principles had been “a useful mechanism to make some gains, to make some progress to move towards giving effect to the Crown’s Treaty obligations, to recognising Māori rights more fully within the current framework”.

He would like a broader conversation around what a constitution that was properly grounded in Te Tiriti o Waitangi would look like.

“To do that, you need to move away from the idea of principles because the principles are tailored to the existing structures and they can’t really help you get beyond that.”

Former Prime Minister and constitutional specialist Sir Geoffrey Palmer believes the Treaty needs to be sorted out by 2040. Photo / Mark Mitchell

Former Prime Minister Sir Geoffrey Palmer KC, who has long argued for a written constitution with the Treaty in it, also supports a wider conversation and soon.

“Māori were not given what they had been assured by Governor Hobson they were getting [in 1840], which was exclusive power over their own property. They didn’t get that because the British Government made a proclamation of sovereignty over the whole country.

“The original deal that was made was, from the point of view of Māori, quite unfair and not something they agreed to.”

He said you’ve got to use a democratic process to fix it.

“You can’t do it by trying to rewrite history in a simplistic way that Act have tried to do it,” he said.

“We haven’t faced up to this issue of the Treaty being half in and half out of the legal system since 1986. We’ve never really faced up to it.”

What was probably needed was a Royal Commission which would try and clarify the issue but it had to go further than that.

“You’ve got to use the techniques of modern deliberative democracy which allow you to set up things like citizens’ assemblies.”

They needed to be given a year or two to work out the common ground and where the Treaty could go.

“In 2040 it will be 200 years since the Treaty and we need by that time to sort out what its actual position in the body politic is because it’s not got a stable position as things stand.”

Act leader David Seymour is responsible for the Treaty Principles Bill as Associate Justice Minister. Photo / Mark Mitchell

Act’s proposed principles are:

1. The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws, in the best interests of everyone; and in accordance with the rule of law and the maintenance of a free and democratic society.

2. The Crown recognises, and will respect and protect, the rights that hapū and iwi Māori had under the Treaty of Waitangi/te Tiriti o Waitangi at the time they signed it. However, if those rights differ from the rights of everyone, subclause (1) applies only if those rights are agreed in the settlement of a historical Treaty claim under the Treaty of Waitangi Act 1975.

3. Everyone is equal before the law. Everyone is entitled, without discrimination, to the equal protection and equal benefit of the law; and the equal enjoyment of the same fundamental human rights.

Audrey Young is the NZ Herald’s senior political correspondent. She won Political Journalist of the Year at the Voyager Media Awards in 2023, 2020 and 2018. She was political editor from 2003 to 2021.