'Principles' of the Treaty

It’s those fantastical ‘Treaty of Waitangi Principles’ again

By Peter Cresswell 

YET AGAIN WE SEE all the political classes jumping into the trough for a mud wrestle over the so-called “Principles of the Treaty of Waitangi,” with the National Party wanting to diminish their impact in the partial sale of SOEs, the Maori Party wanting to use the bout to boost themselves, and Browntable iwi leaders hoping to further feather their nests.

The impossible-to-define "principles of the Treaty" were a late and pragmatic addition to law some twenty-five years ago—and a leading lesson in the dangers of pragmatism in politics. As you might not know, the “the principles of the Treaty” are not part of the Treaty at all, just a recent accretion adding great confusion and a huge amount of expensive litigious activity. Not least because to this day they have still not been adequately defined.

FOR THOSE UNAWARE OF the history of these “Principles,” you might be surprised to hear that were never there at the Treaty’s signing; they only emerged in recent times, and only because of the appalling political judgement of a former ACT Party luminary. A rushed addition to legislation that for the first time put the destructive ideas of “biculturalism” and race-based political “partnership” on the table, into the courts, and into the bank accounts of folk who saw the “Principles” as their main chance at piles of money.

So take a bow Richard Prebble while we tell the story of the birth of these “Principles” that have poisoned politics ever since.

Like Rodney Hide when he first got his feet under a ministerial table, Richard Prebble was so excited to “get things done” he didn’t care how he did them. So when, as Minister of State-Owned Enterprises in the Fourth Labour Government, he wanted to sell state-owned enterprises (a good thing), to quieten down the race-based dissent that started to affect the Labour’s relations with its Maori voting base, he asked his colleague Geoffrey Palmer to insert a section in the new State-Owned Enterprises Act the phrase “principles of Treaty of Waitangi,” insisting that “decision-makers” must have regard to these Principles. Here’s all their now infamous Section 9 said:

Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.

What were these Principles? No one knew.

Had they ever been defined? No, they hadn’t.


Did these two clowns have any idea what they might have started? Not a bit of it.


So in order to get the sales under way, these two simply brought these Principles into being without ever defining what these Principles are.

RICHARD PREBBLE DIDN’T CARE. He just wanted to sell things. And Geoffrey Palmer didn’t care, because his life’s work was based around writing legislation so vague, so ambiguous, that it allowed the courts to define things any way they wanted to. This, said the Idiot Palmer, is how you make law “flexible”: by giving the courts bullets which they could elect to fire in any direction they wished.

So much for the legal acumen of Geoffrey Palmer and the political nous of Richard Prebble. Because in the time it takes to say Motunui, a huge number of claims based on these newly-fangled Principles were rapidly being manufactured and presented, and the courts were beginning to dream up all sorts stuff to fill up Palmer’s empty vessel.

This is where the fictions of “biculturalism” and race-based political “partnership” were born. And this was the beginning of the deluge of claims based on these twin fictions—a deluge unseen by the twin geniuses how gave birth to the legislation (“In the course of a relatively few years,” said the woeful Palmer for example, “most of the outstanding issues in this area will be settled. Most of the claims now are known…” )

The result is that to this day no-one knows with any kind of clarity what these “principles” are supposed to be. They were a legal fiction waiting for courts to define and redefine, and for litigants to quarry in an attempt to make their fortune—which they did, in their droves.

And because, over time, they were inserted in all their vagueness in virtually every piece of quasi-constitutional legislation written since, they became a poison that soon infected every piece of legislation they touched.

What that poison did—as subsequent court cases quietly morphed these “principles” into something ever more lucrative for the lawyers who lived off them—was to transfer the Treaty’s clear and straightforward promise of legal protection of and the recognition of rights into the sort of vague, indefinable mush that help lawyers afford large launches.

THE NET RESULT OF evoking principles that didn’t exist was to to create a Treaty that had never existed at all, except in the wet dreams of a lawyers and activists. And lo, a whole Gravy Train was created to feed off this New Thing.

It’s been a hard Train to stop now it’s got rolling.

It set the platform for a whole generation of youngsters to join the Grievance Industry and become, as virtually their sole occupation, professional Maoris. Three of this ilk, ironically, are now propping up John Key’s National government and throwing a tantrum over this very issue. Many others simply see the tantrum as yet another opportunity for a lucrative dip into this trough. 

And it allowed the then Minister of Injustice Doug Graham to mellifluously opine a few years later that “The sooner we realise there are laws for one and laws for another, the better.”

That this piece of human excrement is on this very day before the law courts for fraud—for which his defence has been to limit his dishonesty by talking up instead his incompetence—is perhaps an appropriate contemporary comment on the fraudulent “Principles” themselves.

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Here is Justice Robin Cooke’s 1987 list of treaty principles:
(a) ‘[T]he Queen was to govern and the Maoris were to be her subjects; in return their chieftainship and possessions were to be protected, but . . . sales of land to the Crown could be negotiated.’

(b) Because there was some inevitable potential conflict between those principles, both parties had a duty ‘to act reasonably and with the utmost good faith’ towards one another.
 
(c) The principles of the treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy.’

(d) The Crown assumed a duty of protection towards Maori: ‘the duty is not passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable.’
 
(e) The Crown has a duty to remedy past breaches: ‘the Crown should grant at least some form of redress, unless there are good grounds justifying a reasonable Treaty partner in withholding it – which would only be in very special circumstances, if ever.’

(f) The Crown had an obligation to consult with Maori in the exercise of kawanatanga. Justice Cooke was guarded, however, as to the practical extent of that obligation