Treaty Law: Principles of the Treaty of Waitangi in Law and Practice

Over the past 40 years, the phrase “the principles of the Treaty of Waitangi” has become a common reference in legal vocabulary in Aotearoa New Zealand. It has been interpreted and applied by the Waitangi Tribunal, as well as by the ordinary Courts, up to and including the Privy Council and, more recently, by the Supreme Court.

The principles have been invoked in a wide variety of contexts, ranging from the protection of Māori customary lands and resources, to the process and substance of government decision-making, and the actions of state-owned companies.  The principles have been incorporated into a range of statutes – in so-called “Treaty clauses” – and referred to in the government Cabinet Manual, the formal touchstone of executive decision-making. In short, the principles have become the primary legal framework through which the Crown-Māori relationship is analysed and assessed, as that relationship has evolved ever more nuanced and challenging dimensions.

Treaty Law: Principles of the Treaty of Waitangi in Law and Practice analyses and assesses over 600 judicial decisions with the intention of synthesising how the courts of New Zealand have interpreted the principles. It is a statement of current and historical applications, and a first stop for future research, discussion and deliberation.

Written by Damen Ward, Kevin Hille, and Carwyn Jones.

TABLE OF CONTENTS

Introduction

Overview and summary of specific chapters

The Treaty: Outline of Its Legal Status and Effect

Judicial Review and the Principles of the Treaty

The Principle of Partnership, Reasonableness, And the Duty to Be Informed

The Principle of Active Protection

The Principle of Redress

Treaty Principles and Fiduciary, Fiduciary-Like, And Good Faith Duties

The Treaty and Statutory Interpretation

Tikanga Māori As a Source of Laws, Values, And Considerations in Treaty of Waitangi Case Law

Tikanga Māori, Statutory Interpretation, and the Treaty

Treaty Litigation: Parties and Representation

Treaty Settlements