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Consistency with the government's Treaty of Waitangi obligations

The Treaty of Waitangi is a constitutionally significant document and part of the fabric of New Zealand society.[10] Legislation is expected to comply with the principles of the Treaty of Waitangi and a Cabinet paper seeking approval for the introduction of a Bill must advise whether the Bill complies with the principles of the Treaty of Waitangi and, if not, the reasons why it does not comply.

Although the Treaty of Waitangi does not directly create legal rights or obligations, the Courts will generally presume that Parliament intends to legislate in accordance with the principles.[11] For this reason, it is important that the consistency of a Bill with the principles of the Treaty of Waitangi is carefully considered before the Bill is passed. Disclosing the steps that have been taken to determine whether the policy of the Bill is consistent with the Treaty principles will provide an interested reader with information about the potential robustness of that consideration.

Question 3.2

3.2.  What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

What matters are covered by the question?

The Courts are an important authoritative source of the meaning of the principles of the Treaty of Waitangi, and have expressed the view that, in interpreting the principles, weight should be given to the opinions of the Waitangi Tribunal.[12] The Court of Appeal has stated that the Treaty of Waitangi enacts a relationship akin to a partnership and its central obligation is to act in good faith and work out answers in a spirit of honest co-operation.[13]

The most relevant obligation arising from the principles of the Treaty of Waitangi that impacts on the preparation of legislation is the obligation for the Crown to consult on major issues. Therefore, if there is real potential for a proposed Bill to affect Māori rights and interests protected by the Treaty of Waitangi, the Crown would normally be expected to consult with Māori prior to introducing the Bill.[14]

In some circumstances the Crown's obligations arising from the principles of the Treaty of Waitangi may go beyond consultation and require the Crown to take active steps to protect Māori interests.[15]

Some of the rights and interests covered by Article 2 of the Treaty of Waitangi are also recognised and protected at common law, such as Māori customary land rights, and hence are in a stronger position than Treaty of Waitangi rights and interests not subject to recognition and protection at common law.

The meaning of the principles of the Treaty of Waitangi, as considered by the Courts and the Waitangi Tribunal, are discussed in some detail in He Tirohanga ö Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal, Te Puni Kōkiri, Wellington (2001)[16].

What is the nature of the further information sought?

Provide a brief description of the steps that have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi.

There is no standard process for assessing whether proposed legislation raises Treaty of Waitangi issues but, as with determining consistency with New Zealand's international obligations, this can be broken down into two distinct elements:

  • the steps taken to identify whether the Bill might have implications for the rights and interests of Māori protected by the Treaty of Waitangi and, in the case of customary interests, also protected at common law; and
  • if such rights and interests are identified, the steps taken to determine whether the effect of the Bill on those rights and interests, in light of the Crown's power to govern, is consistent with the principles of the Treaty of Waitangi.

The steps a department might take in relation to these two elements include: discussions with policy advisers with expertise in Treaty of Waitangi and Māori matters; discussions with the department's legal team regarding judicial decisions about the principles of the Treaty of Waitangi; discussions with other officials from agencies such as Te Puni Kōkiri, or informal discussions or consultation with the department's Māori advisers, a Māori advisory group, Iwi groups, or representative Māori organisations.

The CabGuide suggests that the Crown Law Office should be consulted on constitutional matters including those involving Treaty of Waitangi matters. It also suggests that Te Puni Kōkiri should be consulted on all proposals that might have implications for Māori as individuals, communities or tribal groupings. It is useful to remember that Māori are not a single homogenous group, so there may be a need to consider whether different iwi, hapū and whānau have relevant rights and interests.

Further sources:

  • Legislation Advisory Committee, Guidelines on Process and Content of Legislation,[17] Chapter 5 “Principles of the Treaty of Waitangi”.

Notes

  • [10]Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188, 210.
  • [11]See the decisions of the Court of Appeal in: Attorney-General v New Zealand Maori Council [1991] 2 NZLR
  • [12]New Zealand Maori Council v Attorney-General [1992] 2 NZLR 576 at 598 per McKay J.
  • [13]New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 at 664-667 per Cooke J, 682 per Richardson J, 693 per Somers J, and 704 per Casey J.
  • [14]The Court of Appeal has said the principle of good faith between the parties to the Treaty “must extend to consultation on truly major issues” New Zealand Maori Council v Attorney-General [1989] 2 NZLR 142, 152.
  • [15]Ngai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 at 560 per Cooke J (CA).
  • [16]http://www.tpk.govt.nz/en/in-print/our-publications/publications/he-tirohanga-o-kawa-ki-te-tiriti-o-waitangi/
  • [17]Available at: http://www2.justice.govt.nz/lac/.
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