The Principle of 'Partnership' and the Treaty of Waitangi
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PANZ Monograph Series Number 6 ISBN 0-9583363-0-X
The Principle of ‘Partnership’
and the Treaty of Waitangi
Implications for the public conservation estate
A review of the validity of a principle of ‘partnership’ under the Treaty of Waitangi, and its application
to the ownership and control of New Zealand’s public conservation and recreation estate
Bruce Mason
Researcher, Public Access New Zealand
December 1993—Revised January 1995
Introduction
The Treaty of Waitangi is widely re- Additional to claim settlements ronment Act 1986 (Long Title), Con-
garded as the founding document for through the processes of the Waitangi servation Act 1987 (s 4), Crown For-
New Zealand. Many also regard it as Tribunal, there are broader changes est Assets Act 1989 (Long Title),
a ‘sacred compact’, whose words and underway in the ownership and con- Resource Management Act 1991 (ss
interpretation are not as important as trol of natural and recreational areas. 5(e), 6), and the Crown Minerals Act
the spirit that rises therefrom. Others This is a subject that has not received 1991 (s 4). None of these statutes
view the Treaty as a ‘historical arti- much, if any, public notice as policy define what these principles are. That
fact’—a ‘modest little document’ that and allocation decisions are taking task has been left to the Waitangi
has been adorned with sentiment and place behind closed doors. The Crown, Tribunal, the Courts, Government, and
well-intentioned rhetoric. as represented by executive Govern- a variety of interest groups.
Today it is hard to escape from ment, has taken upon itself the role of Since incorporation of the Treaty,
talk of the Treaty, and related griev- sole arbitrator as to its liabilities un- or alternatively Treaty ‘principles’,
ances and claims over land and other der the Treaty and the assets it may into our domestic law a quiet revolu-
resources. Until comparatively recent use in fulfilment of its perceived obli- tion has been going on within govern-
times, the Treaty has had little or no gations. Many of those assets, unlike ment. It is only now, when faced by
relevance to most New Zealanders. government commercial enterprises, burgeoning claims by Maori for own-
However as a result of dramatically include lands held in trust for the ership and control over much of the
increased land and fishery claims this benefit of present and future genera- public estate, that many New Zea-
state of affairs is rapidly changing. tions. Under the mantle of the Treaty landers are beginning to catch up on
During 1993 Government placed pri- and ‘Treaty principles’, Government the statutory, structural, and attitudinal
vate lands beyond the power of the considers it is empowered to do as it changes that are now affecting the
Waitangi Tribunal to recommend re- alone sees fit with the public conser- ownership and control of the recrea-
turn of ownership to claimants. This vation estate. tional ‘commons’.
has greatly increased pressure on gov- For decades the Treaty was dis-
ernment assets, and public lands such missed as ‘a simple nullity’ as it had
as national parks and other protected no standing under our legal system. A growing realisation is that
areas. That situation changed in 1975 when New Zealand is on the brink
the Crown accepted liability for of profound changes to the
breaches of the Treaty. The Treaty of nature of ‘public’ lands, how
There are at least 48 claims Waitangi Act 1975 established the they are managed, and for
that affect the public conser- Waitangi Tribunal for the hearing of whose benefit.
vation estate. Claimants gen- grievances by Maori against the
erally seek the return of land. Crown. Subsequently the jurisdiction
Some also seek shared man- of the Waitangi Tribunal was wid- The Waitangi Tribunal was estab-
agement responsibility with ened and other statutes have incorpo- lished to determine the validity of
the Crown. rated references to the Treaty. The claims against the Crown and to make
general practice however has been to recommendations as to the settlement
incorporate references to the ‘princi- of proven grievances. The Tribunal
ples’ of the Treaty into law rather than has made a fair effort at hearing and
references to the Treaty itself. Of di- scrutinising the validity of claims.
Unless attributed, the views expressed rect relevance to the management of What is alarming some public inter-
are not necessarily those of Public natural areas are references to the est groups however are secret hear-
Access New Zealand Inc. (PANZ). ‘principles’ of the Treaty in the Envi- ings and settlements affecting the
Public Access
The Principle of ‘Partnership’ and New Zealand
the Treaty RD1
of Waitangi Omakau 9182 Central Otagopublic estate. Government and claim- that major inequalities will be cre-
ants are increasingly by-passing the ated, in the ownership, control and
Tribunal by direct negotiation of un- benefits derived from natural re- The Treaty
proven claims and in at least one case sources, between successful claim- In 1840 the Crown and the majority of
(aspects of the Ngai Tahu land claim), ants and the rest of society. Maori chiefs signed a compact that
in contradiction to findings of fact by created reciprocal rights and obliga-
the Tribunal. A more prevalent trend tions for both parties. The Treaty con-
however is for the Department of Government has given impe- sists of a preamble, three articles, and
Conservation (DOC) to instigate the tus to high, but ill-founded, an epilogue. In broad terms, on the
vesting of ownership or control over expectations by stating that ceding of the right of complete sover-
public lands to Maori interests, inde- Maori are an equal partner eignty or government (Article I) and
pendently of formal claims before the with the Crown and by impli- the granting of exclusive pre-emptive
Waitangi Tribunal, or by ‘mediation’ cation entitled to half of every (purchase) rights of land to the Crown
processes. This is occurring under a Crown-owned resource. (Article II), Maori would retain either
justification of the duty “to give ef- exclusive and undisturbed possession
fect to the principles of the Treaty of of their lands and estates forests fish-
Waitangi” (s 4 Cons. Act 1987). The prevalence of well-meaning eries and other properties so long as it
Public concerns over secret deals rhetoric on the subject, mixed with a is their wish to retain the same in their
involving public lands are not allowed residue of guilt, means that it is politi- possession or the unqualified exer-
to stand in the way of the Govern- cally dangerous and ‘incorrect’ to cise of chieftainship over all their
ment— “premature disclosure of in- question the current orthodoxy. For lands, villages and all other treasures
complete issues and proposals instance the Hon. Denis Marshall, (Article II), and be given the same
would...materially affect the orderly Minister of Conservation, in relation rights and duties of citizenship as the
process of negotiation and would be to Ngai Tahu land claims (Press Re- people of England (Article III).
likely to prejudice the Crown’s abil- lease, 8 September 1992):
ity to reach agreement”. This “would Some normally sensible and pro- Although a relatively simple agree-
not be in the public interest”, in the gressive conservationists seem in ment it is complicated by the fact that
view of the Minister of Conservation danger of losing their perspective it was executed in two versions, one
(letter dated 17 May 1993). over this issue and they have de- in English, the other in Maori. This
This paper examines the validity parted from their normal highly explains the italicised ‘either’ and
of the concept of ‘partnership’ which analytical and constructive ap- ‘or’ above. Neither version is a direct
has gained currency as the central proach to launch public attacks translation of the other. Parliament
principle deemed to be derived from which distance them even further has decided that the Waitangi Tribu-
the Treaty. As a consequence of the from Maori claimants. nal must have regard to both versions
notion that a ‘partnership’ exists be- A considered and thoughtful when determining if breaches of the
tween people of Maori descent and approach to this issue has escaped ‘principles’ of the Treaty have oc-
the Crown, fundamental changes to them, and they apparently have a curred. Where the texts cannot be
the founding ‘preservation-with-use’ fundamental fear that you can’t reconciled by reference to each other
and public ownership philosophy of trust your treaty partner when it the Tribunal is of the view that the
the public conservation estate may be comes to conservation. Maori version should be treated as the
in store. What I would make a plea for primary reference.
is a greater sense of cultural un-
It appears that most claimants derstanding on the part of both Te Tiriti o Waitangi—
Pakeha and Maori, to appreciate
do not subscribe to the con-
cept of preservation of intrin-
as equal treaty partners what The Text in English
motivates each other, and work Source: Treaty of Waitangi Act
sic natural values for their own
out ways of accommodating their 1975; First Schedule.
inherent worth, rather prefer- mutual concerns, Mr. Marshall
ring utilisation of conserved concluded. HER MAJESTY VICTORIA Queen
natural resources. Tribal au-
of the United Kingdom of Great Brit-
thority over access to and use
ain and Ireland regarding with Her
of natural areas contrasts Royal Favour the Native Chiefs and
markedly with existing rights The Treaty has become the
Tribes of New Zealand and anxious
of access, conveyed equally main means of effecting asset
to protect their just Rights and Prop-
on everyone. redistribution, or at least at- erty and to secure to them the enjoy-
tempting to do so. The impli- ment of Peace and Good Order has
cations for the public estate of deemed it necessary in consequence
‘Partnership’ is commonly interpreted unquestioning application of of the great number of Her Majesty’s
as meaning that a 50:50 entitlement currently popular political Subjects who have already settled in
exists between the Crown and Maori perceptions are too grave to New Zealand and the rapid extension
to ownership and control of all natu- leave unexamined and of Emigration both from Europe and
ral resources. As a consequence, a undebated. Australia which is still in progress to
growing sector of the community fears constitute and appoint a functionary
2 The Principle of ‘Partnership’ and the Treaty of Waitangiproperly authorised to treat with the protection and imparts to them all the Ko te Tuatahi
Aborigines of New Zealand for the Rights and Privileges of British Sub- Ko nga Rangatira o te Wakaminenga
recognition of Her Majesty’s Sover- jects. me nga Rangatira katoa hoki ki hai i
eign authority over the whole or any uru ki taua wakaminenga ka tuku
part of those islands—Her Majesty W. HOBSON Lieutenant Governor. rawa atu ki te Kuini o Ingarani ake
therefore being desirous to establish a tonu atu-te Kawanatanga katoa o o
settled form of Civil Government with Now therefore We the Chiefs of the ratou wenua.
a view to avert the evil consequences Confederation of the United Tribes of
which must result from the absence of New Zealand being assembled in Ko te Tuarua
the necessary Laws and Institutions Congress at Victoria in Waitangi and Ko te Kuini o Ingarani ka wakarite ka
alike to the native population and to We the Separate and Independent wakaae ki nga Rangatira ki nga hapu-
Her subjects has been graciously Chiefs of New Zealand claiming au- ki tangata katoa o Nu Tirani te tino
pleased to empower and authorise me thority over the Tribes and Territories rangatiratanga o o ratou wenua o
William Hobson a Captain in Her which are specified after our respec- ratou kainga me o ratou taonga katoa.
Majesty’s Royal Navy Consul and tive names, having being made fully Otiia ko nga Rangatira o te
Lieutenant Governor of such parts of to understand the Provisions of the Wakaminenga me nga Rangatira
New Zealand as may be or hereafter foregoing Treaty, accept and enter katoa atu ka tuku ki te Kuini te
shall be ceded to her Majesty to invite into the same in the full spirit and hokonga o era wahi wenua e pai ai te
the confederated and independent meaning thereof; in witness of which tangata nona te Wenua-ki te ritenga o
Chiefs of New Zealand to concur in we have attached our signatures or te utu e wakaritea ai e ratou ko te kai
the following Articles and Conditions. marks at the places and dates respec- hoko e meatia nei e te Kuini hei kai
tively specified. hoko mona.
ARTICLE THE FIRST Done at Waitangi this Sixth day
The Chiefs of the Confederation of of February in the year of Our Lord Ko te Tuatoru
the United Tribes of New Zealand One thousand eight hundred and forty. Hei wakaritenga mai hoki tenei mo te
and the separate and independent [Here follow signatures, dates, wakaaetanga ki te Kawanatanga o te
Chiefs who have not become mem- etc.] Kuini-Ka tiakina e te Kuini o Ingarani
bers of the Confederation cede to Her nga tangata maori katoa o Nu Tirani
Majesty the Queen of England abso- ka tukua ki a ratou nga tikanga katoa
lutely and without reservation all the rite tahi ki ana mea ki nga tangata o
rights and powers of Sovereignty The Text in Maori Ingarani.
which the said Confederation or Indi- Source: The Treaty of Waitangi Amend-
vidual Chiefs respectively exercise ment Act 1985: being amended First (Signed) WILLIAM HOBSON,
or possess, or may be supposed to Schedule to 1975 Act. Consul and Lieutenant-Governor.
exercise or to possess over their re-
spective Territories as the sole Sover- KO WIKITORIA, te Kuini o Ingarani, Na ko matou ko nga Rangatira o te
eigns thereof. i tana mahara atawai ki nga Rangatira Wakaminenga o nga hapu o Nu Tirani
me nga Hapu o Nu Tirani i tana hiahia ka huihui nei ki Waitangi ko matou
ARTICLE THE SECOND hoki kia tohungia ki a ratou o ratou hoki ko nga Rangatira o Nu Tirani ka
Her Majesty the Queen of England rangatiratanga, me to ratou wenua, a kite nei i te ritenga o enei kupu, ka
confirms and guarantees to the Chiefs kia mau tonu hoki te Rongo ki a ratou tangohia ka wakaaetia katoatia e
and Tribes of New Zealand and to the me te Atanoho hoki kua wakaaro ia he matou, koia ka tohungia ai o matou
respective families and individuals mea tika kia tukua mai tetahi Rangatira ingoa o matou tohu. Ka meatia tenei
thereof the full exclusive and undis- hei kai wakarite ki nga Tangata maori ki Waitangi i te ono o nga ra o Pepueri
turbed possession of their Lands and o Nu Tirani-kai wakaaetia e nga i te tau kotahi mano, e waru rau e wa
Estates Forests Fisheries and other Rangatira maori te Kawanatanga o te te kau o to tatou Ariki.
properties which they may collec- Kuini ki nga wahikatoa o te Wenua
tively or individually possess so long nei me nga Motu-na te mea hoki he Ko nga Rangatira o te wakaminenga.
as it is their wish and desire to retain tokomaha ke nga tangata o tona Iwi
the same in their possession; but the Kua noho ki tenei wenua, a e haere
Chiefs of the United Tribes and the mai nei. Translation of Maori Text
individual Chiefs yield to Her Maj- Na ko te Kuini e hiahia ana kia (by I H Kawharu in, ‘Waitangi: Maori
esty the exclusive right of Preemption wakaritea te Kawanatanga kia kaua ai and Pakeha Perspectives of the Treaty
over such lands as the proprietors nga kino e puta mai ki te tangata of Waitangi’ (1989) —a reconstruc-
thereof may be disposed to alienate at Maori ki te Pakeha e noho ture kore tion of a literal translation)
such prices as may be agreed upon ana.
between the respective Proprietors Na, kua pai te Kuini kia tukua a Victoria, the Queen of England, in
and persons appointed by Her Maj- hau a Wiremu Hopihona he Kapitana her concern to protect the chiefs and
esty to treat with them in that behalf. i te Roiara Nawi hei Kawana mo nga subtribes of New Zealand and in her
wahi katoa o Nu Tirani e tukua aianei, desire to preserve their chieftainship
ARTICLE THE THIRD amua atu ki te Kuini e mea atu ana ia and their lands to them and to main-
In consideration thereof Her Majesty ki nga Rangatira o te wakaminenga o tain peace and good order considers it
the Queen of England extends to the nga hapu o Nu Tirani me era Rangatira just to appoint an administrator one
Natives of New Zealand Her royal atu enei ture ka korerotia nei. who will negotiate with the people of
The Principle of ‘Partnership’ and the Treaty of Waitangi 3New Zealand to the end that their its meaning of ‘partnership’ to what it
chiefs will agree to the Queen’s Gov- believes it to ‘involve’:
ernment being established over all Interpretation of Partnership involves co-operation
parts of this land and (adjoining) is- and interdependence between dis-
lands and also because there are many Treaty principles tinct cultural or ethnic groups
of her subjects already living on this The ‘principles’ of the Treaty now within one nation.
land and others yet to come. have greater status under statute than
So the Queen desires to establish the text of the Treaty itself. Under The Commission had prevailing so-
a government so that no evil will existing law, the Treaty principles are cial concerns— “the Commission is
come to Maori and European living in defined and re-defined by the Court convinced that partnership and
a state of lawlessness. of Appeal where the principles are bicultural development offer the way
So the Queen has appointed me, noted in a statute the Court is called forward for a society ready to be
William Hobson a captain in the Royal on to interpret. This process began enriched by its duel heritage”. The
Navy to be Governor for all parts of Commission went as far as to say in
with the 1987 New Zealand Maori
New Zealand (both those) shortly to an appendix to its report that the Treaty
Council SOE lands case. Mr. Justice
be received by the Queen and (those) of Waitangi ‘promised’ bicultural
Cooke noted that although much
to be received hereafter and presents development but without providing
to the chiefs of the Confederation weight should be given to the opin- any basis for this assertion. The Re-
chiefs of the subtribes and other chiefs ions of the Waitangi Tribunal, those port of the Bicultural Commission of
these laws set out here. opinions were not binding on the the Anglican Church on the Treaty of
Courts. Mr. Justice Somers noted that Waitangi. 1986.
The first Court decisions are binding on the The Right Rev. Manuhuia
The Chiefs of the Confederation and Tribunal. Bennett, a member of the Commis-
all the chiefs who have not joined that Definitions of the principles of sion and of the Waitangi Tribunal,
Confederation give absolutely to the the Treaty have been expressed by the regards partnership as “fundamental
Queen of England for ever the com- Waitangi Tribunal, the Court of Ap- to any bicultural programme”, in the
plete government over their land. peal, and the 1988 Royal Commis- context of the work of the Tribunal. It
sion on Social Policy. Principles for appears that his and the Commis-
The second
Crown Action on the Treaty of sion’s conclusions as to the existence
The Queen of England agrees to pro-
Waitangi, a 1989 statement by the and nature of a ‘partnership’ have
tect the chiefs, the subtribes and all
Prime Minister set out policy guide- been applied to the business of the
the people of New Zealand in the
lines on how Government Depart- Tribunal. Te Roopu Whakamana I Te
unqualified exercise of their
ments and agencies are to approach Tiriti O Waitangi. A Guide to the
chieftainship over their lands, villages
Treaty issues. Waitangi Tribunal. 1992. Waitangi
and all their treasures. But on the
Tribunal Division, Department of
other hand the Chiefs of the Confed-
Justice.
eration and all the Chiefs will sell
land to the Queen at a price agreed to
by the person owning it and by the
person buying it (the latter being) Origins of the
The Court of Appeal
appointed by the Queen as her pur-
chase agent.
‘partnership’ The major development in the con-
The third
principle cept of ‘partnership’ under the Treaty
has been at the Court of Appeal. The
For this agreed arrangement there- The notion that a ‘partnership’ exists, New Zealand Maori Council (SOE
fore concerning the Government of variously between the Crown and lands case), [1987] 1 NZLR 641,
the Queen, the Queen of England will Maori or Pakeha and Maori, has arisen provides the starting point for legal
protect all the ordinary people of New during the last decade as race rela-
significance being attached to the
Zealand and will give them the same tions in New Zealand have been put
concept of ‘partnership’ under the
rights and duties of citizenship as the under the microscope.
Treaty.
people of England. In 1984 the Anglican Church es-
tablished a Bicultural Commission to
consider, inter alia, whether any prin- In the 1987 ‘lands’ case the Court
(Signed) W. Hobson
ciples of ‘partnership and bicultural held that (my emphasis):
Consul and Lieutenant-Governor
development’ are implied in the The Treaty signified a partner-
So we, the Chiefs of the Confedera- Treaty. In 1986 the Commission con- ship between Pakeha and Maori
tion and of the subtribes of New Zea- cluded that the Treaty does imply requiring each to act towards the
land meeting here at Waitangi having such principles. The Commission took other reasonably and with the ut-
seen the shape of these words which a theological or biblical approach to most good faith. The relationship
we accept and agree to record our the concept of partnership, and while between the Treaty partners cre-
names and our marks thus. offering a meaning of the term failed ates responsibilities analogous to
Was done at Waitangi on the sixth to define it. While resorting to dic- fiduciary duties. The duty of the
of February in the year of our Lord tionary definitions for other terms in Crown is not merely passive but
1840. its report, the Commission confined extends to active protection of
4 The Principle of ‘Partnership’ and the Treaty of WaitangiMaori people in the use of their redress so I think a breach of the terms This observation was within the con-
lands and waters to the fullest of the Treaty by one of its parties text of the principle that the rights and
extent practicable. That duty is no gives rise to a right of redress by the privileges of British subjects were
light one and is infinitely more other—a fair and reasonable recogni- granted to Maori. Central to those
than a formality. If a breach of the tion of, and recompense for, the wrong rights was the granting of equality for
duty is demonstrated at any time, that has occurred. That right is not each individual before the law. It is
the duty of the Court will be to justiciable in the Courts but the claim inherent of such a principle that there
insist that it be honoured (p 642 to it can be submitted to the Waitangi are no greater or lesser rights for one
line 47). Tribunal” (p 693 line 8). individual in relation to others. The
Casey J: “I see such a principle concept of a ‘partnership’ between
The decision was cited to be based [the rights and privileges of British certain classes of citizen and the
on— subjects] as very relevant to this case, Crown implies greater standing be-
Cooke P: “The principles of the inherent in the concept of an on- fore the Crown and the law relative to
Treaty are to be applied, not the literal going partnership founded on the others. In contradistinction to the no-
words. As is well known, the English Treaty. Implicit in that relationship is tion of ‘partnership’ between a spe-
and Maori texts in the first schedule to the expectation of good faith by each cial class of citizen and the Crown,
the Treaty of Waitangi Act 1975 are side in their dealings with the other, the Court reinforced the equality prin-
not translations the one of the other and in the way that the Crown exer- ciple by citing Professor Kawharu’s
and do not necessarily convey pre- cises the rights of government ceded literal translation of the Maori text of
cisely the same meaning”(p 662 line to it. To say this is to do no more than the third article: “for this agreed ar-
28). assert the maintenance of the ‘honour rangement therefore concerning the
Richardson J: “It is not neces- of the Crown’ underlying all its Treaty Government of the Queen, the Queen
sary for the purposes of this case to relationships” (p 703 line 1). of England will protect all the ordi-
attempt to write a general treatise on Bisson J: “This Court is not con- nary people of New Zealand and will
the subject. This is because, as in all cerned with a strict or literal interpre- give them the same rights and duties
cases, it is a matter of determining tation of the Treaty of Waitangi, nor of citizenship as the people of Eng-
what are the relevant principles hav- to the application of such an interpre- land” ([1987] 1 NZLR 663 line 14).
ing regard to the context in which tation to a given set of facts. This
their identification arises. There is Court is called upon to consider what
however one overarching principle— are the principles of the Treaty. The The body of the Court of Ap-
to which I shall return—which in its principles of the Treaty of Waitangi peal’s decision contains no
application here is sufficient to an- were the foundation for the future definition of what is meant by
swer the present case. It is that con- relationship between the Crown and ‘partnership’. Repeated inter-
sidered in the context of the State- the Maori race. In considering what changability of terms with dif-
Owned Enterprises Act, the Treaty of the parties to the Treaty laid down as ferent meanings creates con-
Waitangi must be viewed as a solemn that foundation in the documents they fusion and does not assist with
compact between two identified par- signed it would be appropriate to adopt deducing what the Court
ties, the Crown and the Maori, through from another context the words of meant by ‘partnership’. In re-
which the colonisation of New Zea- Lord Wilberforce in James Buchanan lation to the Treaty the terms
land was to become possible. For its & Co. Ltd. v Babco Forwarding & ‘party/parties’ are inter-
part the Crown sought legitimacy from Shipping (UK) Ltd. [1977] 3 All ER changed with ‘partner/part-
the indigenous people for its acquisi- 1048, 1052, and determine the princi- ners’. As a consequence, ‘par-
tion of sovereignty and in return it ples of the Treaty “unconstrained by ties’ to the Treaty have be-
gave certain guarantees. That basis technical rules of English law, or by come ‘partners’ which in turn
for the compact requires each party to English legal precedent, but on broad may have created a ‘partner-
act reasonably and in good faith to- principles of general acceptation” (p ship’ in the minds of the mem-
wards the other” (p 673 line 40). 714 line 5). bers of the Court.
Somers J: “A breach of a Treaty
provision must in my view be a breach
of the principles of the Treaty. ...The
obligation of the parties to the Treaty
Commentary on
to comply with its terms is implicit, judges’ decision Some definitions
just as the obligation of the parties to There is difficulty understanding from Parties: persons who voluntarily take
a contract to keep their promises. So the Judges’ recorded deliberations part in anything, in person or by attor-
is the right of redress for breach which how they determined from the terms ney; as the parties to a deed. N Z Law
may fairly be described as a principle, of the Treaty that a ‘partnership’ ex- Dictionary 3rd edition.
and was in my view intended by Par- ists between the Crown and Maori. Partner: sharer (with person, in or of
liament to be embraced by the terms The only direct reference above to the thing); person associated with others
it use in s 9. As in the law in partner- matter of partnership is from Mr. Jus- in business of which he shares risks
ship a breach by one party of his duty tice Casey who saw “an on-going and profits. The Concise Oxford Dic-
to the other gives rise to a right of partnership founded on the Treaty”. tionary 7th Edition.
The Principle of ‘Partnership’ and the Treaty of Waitangi 5Other relevant “There is, however, one para- implicit, just as is the obligation of
mount principle which I have sug- parties to a contract to keep their
extracts from each gested emerges from consideration promises (p 693 line 16).
Judge’s decision— of the Treaty in its historical setting: “As in the law of partnership a
Justice Cooke: “The Treaty signi- that the compact between the Crown breach by one party of his duty to the
and the Maori through which the other gives rise to a right of redress so
fied a partnership between races, and
peaceful settlement of New Zealand I think a breach of the terms of the
it is in this context that the answer to
was contemplated called for the pro- Treaty by one of its parties gives rises
the present case has to be found (p
tection by the Crown of both Maori to a right of redress by the other...” (p
664 line 1). 693 line 20).
“In this context the issue becomes interests and British interests and
what steps should be taken by the rested on the premise that each party
Justice Casey: “...The relationship
Crown, as partner acting towards the would act reasonably and in good
the parties hoped to create... (p 702
Maori partner with the utmost good faith towards the other within their
line 26).
faith which is the characteristic obli- respective spheres. That is I think “From the attitude of the Colonial
gation of partnership...(p 664 line reflected both in the nature of the Office and the transactions between
23). Treaty and in its terms (p 680 line 52). its representatives and the Maori
“What has largely been said “It was a compact through which chiefs, and from the terms of the Treaty
amounts to acceptance of the submis- the Crown sought from the indig- itself, it is not difficult in infer the
sion for the applicants that the rela- enous people legitimacy for its acqui- start in 1840 of something in the na-
tionship between the Treaty partners sition of government over New Zea- ture of a partnership between the
creates responsibilities analogous to land. Inevitably there would be some Crown and the Maori people (p 702
fiduciary duties (p 664 line 38). conflicts of interest. There would be line 30).
“It will be seen that approaching circumstances when satisfying the “...this concept of an on-going
the case independently we have all concerns and aspirations of one party partnership... (p 702 line 41).
reached two major conclusions. First could injure the other. If the Treaty “I see such a principle as very
that the principles of the Treaty of was to be taken seriously by both relevant to this case, inherent in the
Waitangi override everything else in parties each would have to act in concept of an on-going partnership
the State-Owned Enterprises Act. good faith and reasonably towards founded on the Treaty. Implicit in
the other (p 681 line 3). that relationship is the expectation of
Second that those principles require
“In the domestic constitutional good faith by each side in their deal-
the Pakeha and Maori Treaty part-
field which is where the Treaty re- ings with the other, and in the way
ners to act towards each other reason-
sides under the Treaty of Waitangi that the Government exercises the
ably and with the utmost good faith (p rights of government ceded to it” (p
667 line 6). Act and the State-Owned Enterprises
703 line 1).
“We left it to the Treaty part- Act, there is every reason for attribut-
“Before concluding, there are
ners...(p 719 line 13). ing to both partners that obligation to
some general observations I would
“The Court hopes that this mo- deal with each other and with their
like to make:
mentous agreement will be a good Treaty obligations in good faith. That (i) I have spoken of what I per-
augury for the future of the partner- must follow both from the nature of ceive to be a relationship akin to
ship. Ka pai” (p 719 line 26). the compact and its continuing appli- partnership between the Crown
cation in the life of New Zealand and and Maori people, and of its obli-
from its provisions. No less than un- gation on each side to act in good
Justice Richardson: “There is how- der the settled principles of equity as faith” (p 704 line 15).
ever one overarching principle—to under our partnership laws, the obli-
which I shall return—which in its gation of good faith is necessary in- Justice Bisson: No quotations on
application here is sufficient to an- herent in such a basic compact as the parties, partners, or partnership.
swer the present case. It is that con- Treaty of Waitangi. In the same way
sidered in the context of the State- too honesty of purposes calls for an
Owned Enterprises Act, the Treaty of honest effort to ascertain the facts and Discussion of Case
Waitangi must be viewed as a solemn to reach an honest conclusion (p 682
From the Court’s decision some ele-
compact between two identified par- line 42). ments it attributes to a ‘partnership’
ties, the Crown and the Maori, through “...treaty partner/partners” (p can be identified—
which the colonisation of New Zea- 683 lines 1 and 17; p 683 lines 18 and • acting with utmost good faith; the
land was to become possible (p 673 42; p 685 line 12). kind of duty which in civil law
line 43). partners owe to each other;
“Common to both perspectives Justice Somers: “Each party in my • acting reasonably;
was the recognition that the [second] view owed to the other a duty of good • the settled principles of equity as
article provided for Maoris to be ac- faith. It is the kind of duty which in under our partnership laws;
corded equal status with other British civil law partners owe to each other • as in the law of partnership a breach
subjects (p674 line 24). (p 693 line 5). by one party of his duty to the
“...the Treaty partners (p 674 line “The obligation of the parties to other gives rise to a right of re-
27). the Treaty to comply with its terms is dress.
6 The Principle of ‘Partnership’ and the Treaty of WaitangiIt appears that the above elements The Court’s vision of a Treaty
are applicable to a variety of contrac- partnership also does not fit with the
tual relationships other than those of ‘law of partnership’ in New Zealand The Law
partnerships.
Mr. Justice Casey gets closest to
(see box). These factors, and notions
of ‘sharing’ and ‘equality’ that would
of Partnership
defining the Treaty ‘partnership’ be-
tween the Crown and Maori by de-
inevitably arise, make the Court’s use
of an analogy of ‘partnership’ sur-
in New Zealand
scribing it as something in the nature prising. Given the central importance There are three essential ele-
of a partnership and as a relationship attributed to the concept of ‘partner- ments, without which a part-
akin to partnership. In the writer’s ship’, so too was the Court’s lack of nership cannot exist—
view this does not establish that a clear definition of what it meant by • there must be a business;
partnership exists. the term. • it must be carried on with
Mr. Justice Cooke later judicially a view to profit;
It is clear from the terms of the elaborated on the meaning of a Treaty • it must be carried on by or
Treaty that a distinct relation- ‘partnership’ in a 1989 Court of Ap- on behalf of the alleged
ship was established. It is prob- peal decision on the Tainui Maori partners.
lematic whether that relation- Trust Board case ([1989] 2 NZLR Principles of the Law of Part-
ship comfortably fits within 513). He indicated that the concept of nership. Fifth edition. Webb
the label of ‘partnership’. partnership does not mean “that every and Webb 1992. Butterworths,
asset or resource in which Maori have Wellington.
In a post-case and non-judicial some justifiable claim to share should
be divided equally”. The emphasis ‘Partnership’ is also defined
commentary, Sir Robin Cooke, Presi-
given by Mr. Justice Cooke that part- in the Partnership Act 1908 (s
dent of the Court of Appeal, stated
nership does not mean a fifty per cent 4) as “the relation which sub-
that the Court found:
share of every resource in which there sists between persons carry-
the analogy of partnership was
is some legitimate claim was earlier
helpful in discovering the princi- ing on a business in common
emphasised by the Court in the 1989
ples of the Treaty, because of the with a view to profit”. These
connotation of a continuing rela- state forests case ([1989] 2 NZLR
definitions hardly fit the na-
tionship between parties working 142).
ture of the Treaty of Waitangi.
together and owing each other
duties of reasonable conduct and Section 5 of the Partnership
good faith. The analogy was of Royal Commission Act provide rules for deter-
course not suggested to be per-
fect, but it is a natural one. It had on Social Policy mining the existence of part-
been used often enough by histo- This was another source of develop- nerships. If applied to the
rians and others in the past. It has ment of the ‘partnership’ model. The Treaty of Waitangi none of
since then been used by Parlia- Commission’s work led to structural these could construe ‘partner’
ment in a 1988 Amendment to the changes within government and an status to either the Crown or
Treaty of Waitangi Act 1975 increasing adoption of ‘Treaty prin- Maori or the existence of a
whereby, in considering the suit- ciples’ as matters for administrative partnership.
ability of persons for appointment action.
to the Waitangi Tribunal, the Min- The Commission reported in 1988
ister of Maori Affairs is directed and produced a discussion booklet on
to have regard to “the partnership of Treaty principles, focused on three
the principles of the Treaty of
between the two parties to the principles, which it saw as crucial to
Treaty”. The judges did under- Waitangi. In part it commented that:
an understanding of social policy and
stand that the parties to the Treaty In essence the Treaty was a part-
upon which the Treaty impacts—part-
were not in fact embarking on a nership between the Maori inhab-
nership, protection, and participation.
business in common with a view itants of New Zealand and the
The Commission was influenced
to profit. They also understood British Government. While it had
the potential for a fair and even by the submissions of the Anglican
that shares in partnership vary.
After all, much legal practice in arrangement, inequalities between Church Bicultural Commission which
New Zealand is carried on in part- the partners quickly developed. was “studying ways and means of
nerships in which the shares are ...By 1860 the European popula- working in partnership, Maori and
not equal (14 (1990) NZULR 5). tion at 79,000 had surpassed the Pakeha”. The Royal Commission
declining Maori numbers and, with noted that partnership was more read-
The business connotations of no regard to the concept of part- ily applied to Articles 1 and 3 of the
partnerships that Sir Robin nership declared only 20 years Treaty but that it should not be used to
said the Court considered do earlier, the Maori had become a diminish the guarantees of ‘full, ex-
not sit well with the ‘social’ political minority in their own clusive and undisturbed possession’
partnerships the Anglican country. promised in Article 2 (The April Re-
Church, Parliament and some port, Vol. II. Report of the Royal
other commentators visualise. In its report, the Commission, while Commission on Social Policy. April
not seeking to compile a definite list 1988).
The Principle of ‘Partnership’ and the Treaty of Waitangi 7will require compromises on both the Court of Appeal in the New Zea-
It appears that the Royal Com- sides. land Maori Council case*. Several of
mission’s social imperatives the judges emphasised the importance
influenced its view and inter- “5.The Maori interest should be ac- of the ‘honour of the Crown’. Mr.
pretation of the Treaty rather tively protected by the Crown. Justice Casey saw the concept as un-
than a detailed analysis of the derlying all the Crown’s Treaty rela-
words of the Treaty itself. The “6.The granting of the right of pre- tionships. Sir Ivor Richardson referred
Treaty was viewed as a means emption to the Crown implies a recip- to the Treaty as a ‘compact’.
of advancing the social goal rocal duty for the Crown to ensure “This tribunal adopts the follow-
of partnership—the Commis- that the tangata whenua retain suffi- ing statement by the Muriwhenua tri-
sion was not impressed with cient endowment for their foreseen bunal as to the basis for the concept of
alternatives to partnership needs. a partnership:—
“and is strongly of the opinion It was a basic object of the Treaty
that fairness, equality and jus- “7.The Crown cannot evade its obli- that two people would live in one
tice will be best addressed gations under the Treaty by confer- country. That in our view is also a
when partnership is vigorously ring authority on some other body. principle, fundamental to our per-
pursued at all levels...” ception of the Treaty’s terms. The
“8.The Crown obligation to legally Treaty extinguished Maori sover-
recognise tribal rangatiratanga. eignty and established that of the
Crown. In so doing it substituted a
Waitangi Tribunal “9.The courtesy of early consulta- charter, or a covenant in Maori
tion. eyes, for a continuing relation-
Principles of the ship between the Crown and Maori
Treaty of Waitangi “10. Tino rangatiratanga includes people, based upon their pledges
defined 1983-1988 management of resources and other to one another. It is this that lays
The Parliamentary Commissioner taonga according to Maori cultural the foundation for the concept of a
listed the following principles that preferences. partnership.
she identified from the decisions of
the Waitangi Tribunal up to 1988: “11. ‘Taonga’ includes all valued re- “The obligation of the parties to the
sources and intangible cultural as- Treaty to comply with its terms is
“1. The exchange of the right to make sets. implicit, just as is the obligation of
laws for the obligation to protect Maori parties to a contract to keep their
interests. “12. The principle of choice: Maori, promises. So is the right of redress for
Pakeha and bicultural options”. breach which may fairly be described
“2. The Treaty implies a partnership, as a principle, and was in my view
exercised with utmost good faith. intended by Parliament to be em-
The principle of partnership was braced by the terms it used in s 9. As
first stated by the Tribunal in the Ngai Tahu in the law of partnership a breach by
Manakau report: Land Claim Report one party of his duty to the other gives
The interests recognised by the rise to a right of redress so I think a
Treaty give rise to a partnership,
1991 breach of the terms of the Treaty by
the precise terms of which have yet References to ‘partners’ and ‘part- one of its parties gives rise to a right
to be worked out (p 95). nership’ (my emphasis): of redress by the other—a fair and
“The tribunal has recognised that reasonable recognition of, and rec-
Subsequent to the Court of Appeal
in reconciling the concepts of sover-
case, the Orakei and Muriwhenua re- ompense for, the wrong that has oc-
eignty and rangatiratanga some com-
ports reiterated and supported the curred. That right is not justiciable in
promises will need to be made by
judgment of the Court that the lead- the Courts but the claim to it can be
both Treaty partners . In the
ing principles of the Treaty are (a) Muriwhenua report (1988), p195, the submitted to the Waitangi Tribunal
that it signifies a partnership between tribunal commented: neither partner (4.7.17).
the races, and (b) that it obliges both in our view can demand their own “Sir Robin Cooke also accepted
partners to act towards each other in benefits if there is not also an adher- that if the Waitangi Tribunal found
utmost good faith (Orakei report pp ence to reasonable stated objectives merit in a claim and recommended
147-148, Muriwhenua report pp 190- of common benefit. It ought not to be redress the Crown should grant at
192). forgotten that there were pledges on
both sides (4.7.7 at p 237).
“3. The Treaty is an agreement that “The Treaty signifies a partner-
can be adapted to meet new circum- ship and requires the Crown and Maori
stances. partners to act toward each other rea-
sonably and with the utmost good * See ‘Court of Appeal’ pp 4-7 for
“4. The needs of both Maori and the faith. This proposition was independ- actual, and differing, judical
wider community must be met, which ently agreed on by all five members of understandings on ‘partnership’.
8 The Principle of ‘Partnership’ and the Treaty of Waitangileast some form of redress, unless reinforced that:
grounds existed justifying a reason-
able partner in withholding it—which
Treaty In considering appropriate meas-
ures of redress, the Government
he thought ‘would be only in very
special circumstances, if ever’. It
‘partnership’ must consider factors such as eco-
nomic and administrative feasi-
would appear to follow from this rul- as bility, the need to spread the cost
ing that failure by the Crown, without and benefits, and the requirement
reasonable justification, to implement a matter of law in any democracy, that a measure
the substance of a tribunal recom- There is one statute in which be acceptable to or at least toler-
mendation may in itself constitute a the legislature saw fit to estab- ated by, a reasonably broad range
further breach of the Treaty. It could lish, as a matter of law, that a of opinion. In assessing those fac-
well be inconsistent with the honour ‘partnership’ exists under the tors the Government is doing no
of the Crown. Treaty. This was in an 1988 more than applying the Waitangi
“The tribunal accepts the view amendment to the Treaty of Tribunal’s warning that:
that the present arrangement [Titi Is- Waitangi Act that imposes a It is out of keeping with the
lands] reflects the principle of part- duty on the Minister of Maori spirit of the Treaty ... that the
nership. It also indicates the possi- Affairs, when considering the resolution of one injustice
bilities in an exercise of rangatiratanga suitability of persons for ap- should be seen to create an-
guaranteed and protected by the pointment to the Waitangi other (Waiheke Report, 1987,
Crown. The fact that regulations were Tribunal, to have regard to p 99; also Muriwhenua Re-
drawn up by beneficiaries in the land “the partnership between the port, 1988, p xxi).
is a point not to be overlooked in the 2 parties to the Treaty” (s. 2A Palmer, Hon. Geoffrey. The Treaty
application of the principles of part- Treaty of Waitangi Act 1975). of Waitangi—principles for
nership in resource management Crown action(1989) 19 VUWLR
(17.2.12 at p 859)”. Nowhere under statute, other 335.
than under the Partnership Act
1908 (s. 4), is ‘partnership’ The principles are accompanied by a
defined. commentary that cites the sources
and authorities on which each princi-
Principles During the passage of the ple is based. The Government state-
for Crown Action Treaty of Waitangi Act
amendment only three MPs
ment of the five principles, without
accompanying commentary, is set out
on the Treaty of referred to a ‘partnership.’ below:
Two Government members
Waitangi made statements as to its ex- “Principle 1
A consequence of the judgments of istence, but offered no expla- The Principle of Government:
the Court of Appeal and of the find- nation as what they meant by The Kawanatanga Principle
ings of the Waitangi Tribunal was the the term. An opposition mem- The Government has the right to gov-
release by the Prime Minister, in July ber saw fit to raise questions ern and to make laws.
1989, of the Principles for Crown as to its nature and the conse-
Action on the Treaty. These identified quences of a ‘partnership’— “Principle 2
five principles by which Government “The tribunal has spoken of a The Principle of
will act when dealing with issues that partnership between the par- Self-Management:
arise from the Treaty. ties, but which partnership The Rangatiratanga Principle
The intent behind the release was between which parties? The The iwi have the right to organise as
to dispel doubt and removing confu- original partnership was be- iwi, and, under the law, to control
sion about issues that had arisen from tween the British Crown and their resources as their own.
the Treaty. Maori chiefs. Neither of those
Deputy PM Geoffrey Palmer parties exists now, yet the “Principle 3
stated that the objective was to pro- word ‘partnership’ is still used.
The Principle of Equality
vide some certainty as to the Crown’s Does that mean that every-
All New Zealanders are equal before
approach and to give Government thing is to be shared fifty-fifty?
the law.
agencies a “clean set of policy guide- That expression is vague,
lines about how to approach Treaty meaningless, pious, and likely
issues”. Prime Minister David Lange to confuse and lead to bad “Principle 4
stated that the principles are consist- decisions...” (Warren Kyd, The Principle of Reasonable
ent with the Treaty of Waitangi, and Hansard 1988 p 7930). Cooperation
with observations made by the Courts Both the Government and the iwi are
and the Waitangi Tribunal. obliged to accord each other reason-
In relation to the Principles for able cooperation on major issues of
Crown Action Mr. Palmer separately (...continues next column...) common concern.
The Principle of ‘Partnership’ and the Treaty of Waitangi 9“Principle 5 the basis for that equality although First the Court of Appeal had
The Principle of Redress human rights accepted under in- employed the expressions ‘rea-
The Government is responsible for ternational law are incorporated sonable cooperation’ and ‘part-
providing effective processes for the also. nership’ somewhat interchange-
resolution of grievances in the expec- The third article also has im- ably. Secondly, the aura of legal
tation that reconciliation can occur”. portant social significance in the precision surrounding the term
implicit assurance that social ‘partnership’ proved to be decep-
rights would be enjoyed equally tive. In fact, neither the statutory
by Maori with all New Zealand definition of ‘partnership’ (“the
Discussion citizens of whatever origin. Spe- relation which subsists between
Elaboration of Principles 1, 2, and 5 is cial measures to attain that equal persons carrying on a business in
not included in this paper as these are enjoyment of social benefits are common with a view to profit”)
not directly relevant to the question of allowed by international law. nor more elaborate explanations
‘partnership’. It is noteworthy that of learned commentators provided
the Government statement, after re- Soon after the release of Principles any guidance as to the allocation
view of the Treaty and decisions from for Crown Action, criticism arose that of power between ‘partners’. In-
the Courts, and the reports of the the Crown’s five principles do not deed, this subsequently came to
Waitangi Tribunal, does not embrace fairly describe or reflect the Maori be explicitly recognised by the
‘partnership’ as a principle. Instead text of the Treaty. In particular, Pro- Court of Appeal when their Hon-
the document concludes that, “the fessor Mead and Maanu Paul of Ngati ours warned against a mechanical
outcome of reasonable cooperation Awa rejected the principle of self- 50/50 model of partnership
will be partnership”. In the commen- management, instead preferring ‘ab- (Mahuta v Attorney-General, un-
tary on Principle 4, elements other solute authority’. The principle of reported, Court of Appeal, 3 Oc-
than ‘reasonable cooperation’ ...“re- equality, “as described”, was also tober 1989, CA 126/189).
ferred to in pronouncements of the objected to. The central criticism was Indeed, the more one looked
Courts and the Waitangi Tribunal— the elevation of the idea of coopera- at the Court of Appeal’s use of the
of good faith, consultation, and part- tion above the concept of partnership concept of ‘partnership’ in the New
nership—all flow from the central (Te Runanga O Ngati Awa to Waitangi Zealand Maori Council case in
element of cooperation”. It is only Tribunal 18 July 1989). 1987, the more it became appar-
within the context of ‘cooperation’ In defence of Principles for Crown ent that the principle assistance it
that the concept of ‘partnership’ arises Action, one of the contributors to the provided as an analogical device
in the document. Elsewhere in the advice on which it is based was moved related to a duty to consult and to
document the signatories to the Treaty to publish an explanation (Alex disclose “in the utmost good faith”.
are referred to as ‘interests’ or ‘par- Frame, A State Servant Looks at the This special nature of the ‘part-
ties’ and not as ‘partners’. Treaty (1990) 14 NZULR 82). As the nership’ was simply but effec-
fullest treatment so far of the subject tively expressed by Lord Eldon in
of partnership and the Treaty, this is Const v Harris in 1824:
The principle of equality is extensively drawn on below. In all partnerships whether it
the other area of significance. Mr. Frame observed that the criti- be expressed in the deed or
The dichotomy between a cism suggested that it was open to any not, the partners are bound to
‘partnership’ rather than ‘equal body except the Crown to declare its be true and faithful to each
citizenship’ view of the Treaty policy in relation to the Treaty or even other.
underlies the conflict that has to declare what the Treaty meant. He The ‘good faith’ implication
emerged over the Department pointed out that the document is a of the ‘partnership’ concept is
of Conservation’s interpreta- policy for Crown action, not a rewrite nevertheless to be weighted
tions of their duty to “give ef- of the Treaty. against the potentially misleading
fect to the principles of the In regard to ‘partnership’ he wrote: implications of ‘50/50 ownership’
Treaty of Waitangi” by way of One criticism...has been that and ‘one race one vote’ which are
a ‘partnership’ with Maori. the...‘Principle of Cooperation’, also inherent in the ‘partnership’
is in some way a retreat from the metaphor. The matter is, with re-
notion of ‘partnership’. This lat- spect, well expressed in Mr. Paul
The equality principle is reproduced ter term had achieved currency Temm QC’s recent publication
in full as follows: following its adoption by the Court (Temm 1990, The Waitangi Tri-
The third Article of the Treaty of Appeal. ...Indeed, it can be con- bunal), where the author states:
constitutes a guarantee of legal fessed that the group of officials So it must be said at once that
equality between Maori and other charged with preparing the Prin- the fact that the Treaty created
citizens of New Zealand. This ciples for Crown Action for min- a partnership between the
means that all New Zealand citi- isterial consideration first at- Crown and the Maori New
zens are equal before the law. tempted to formulate a ‘Principle Zealander does not mean that
Furthermore, the common law of Partnership’. A number of prob- there is an equal partnership
system is selected by the Treaty as lems quickly became apparent. between them. It does not
10 The Principle of ‘Partnership’ and the Treaty of Waitangimean that Maori New Zea- parties, acting as free agents, en- reached is highly significant. As
landers are entitled to fifty gaged together in purposeful activity, already indicated the stewardship
percent of all the seats in Par- that is based on a shared understand- of a public resource does not re-
liament, nor fifty percent of all ing and commitment, both coordinat- quire the steward to obtain evi-
tax revenue, nor fifty percent ing their respective actions to a com- dence of ownership. It is, how-
of all the positions in the pub- mon goal. ever, necessary for that agent to
lic service, nor fifty percent of “The concept of ‘cooperation’ is receive unequivocal instructions
all broadcasting time on na- thus shown to be more fundamental, from a source of higher authority.
tional radio and television. more specific in its implications, and This authority in my submission
And it certainly does not mean therefore more demanding of the par- equates precisely with the concept
that Maori New Zealand is ties, than of ‘partnership’. Coopera- of ‘Rangatiratanga’ in Article the
entitled under the Treaty to tion is the actual activity without Second. It follows that by seeking
half of all Crown property in which ‘partnership’ is a mere abstrac- appropriate guidance from a tribal
the country. tion. The way in which this conclu- trust or other authority the depart-
Claims of these kinds have sion is expressed in the Principles for ment can align its protective role
been asserted from time to time Crown Action is that, ‘the outcome of with the wording of the Maori ver-
but they are all based on the reasonable cooperation will be part- sion of the Treaty”.
false foundation that a part- nership’ ”. In short Mr. Piddington envis-
nership necessarily means an aged the development of a partner-
equality between the partners. ship between the department and
the tanga whenua, working for the
“The second problem relates to Application of common good (Ngai Tahu Report
whether ‘partnership’ can provide 1991 p 1048).
a guide to action for state offi- Treaty principles
cials. Is there not a likelihood that
officials will see ‘partnership’ as within DOC DOC sees continued owner-
something purely abstract, unre- The involvement of iwi in conserva- ship of public lands and wa-
lated to day-to-day operations of tion land management has rapidly ters as incidental to its role as
government agencies? A more increased since the Department of a ‘steward’, and the tangata
practical concept seemed to be Conservation was created in 1987. whenua and its interests as
called for—one pointing to activ- There is a requirement under section indivisible. ‘Higher authority’
ity rather than abstraction. The 4 of the Conservation Act to “give for management will come
idea of cooperation (literally effect to the principles of the Treaty from iwi rather than from the
‘working together’) appeared to of Waitangi”. purposes set out in adminis-
offer that more practical concept The department’s vision of where tering statutes. Consequently
with administrative relevance. it is going in relation to Treaty matters the public will not be able to
“The concept of cooperation was established early in its history. In call to account either the de-
has the advantage that most peo- 1988 the Waitangi Tribunal recorded partment or Minister.
ple know, at everyday level, what what Ken Piddington, the first Direc-
cooperation is and can recognise tor-General, saw as the departmental
its presence or absence with con- vision for the future of the public The department has relied on its own
siderable accuracy. It should be estate: interpretations of the Treaty and case
stressed at the outset that the word Mr. Piddington indicated that, in law to formulate a ‘partnership’
‘cooperation’ will here be used in thinking about the way in which model. All these aspects are highly
its formal sense without the con- the principles of the Treaty of challengeable in terms of interpreta-
notations of a particular political Waitangi affect the department in tion and matters of record, as well as
or industrial philosophy and, cer- its operational work and how it under the statutory purposes for pro-
tainly, it is not used in that collo- might best achieve the form of tected areas. However this depart-
quial, figurative, ironic sense partnership articulated by the Court mental position, conceived without
which implies coercion. The term of Appeal in the New Zealand consultation and debate with the wider
will be used in its standard dic- Maori Council case, he proposed community, has set the scene from
tionary sense of ‘working together to develop a set of guidelines. Later then on.
to the same end’ (Concise Oxford he said: For instance, Janet Owen, DOC’s
Dictionary). Cooperation is a be- “In considering our responsibili- Director of Protected Species, writ-
havioural strategy for achieving ties for the public estate the central ing in March 1992, prejudged the
ends difficult or impossible to issue comes back to whether or not validity of all future claims by stating
achieve otherwise”. the question of title is actually rel- that “...the Crown has defaulted on its
evant to our management role. responsibilities as a Treaty partner”.
Mr. Frame went on to define seven Since the claimants have raised She continued “...the Treaty of
characteristics of ‘cooperation’. In several issues in respect of title I Waitangi confers a special position
summary these are—two (or more) believe the conclusion we have on Maori” and “in line with the princi-
The Principle of ‘Partnership’ and the Treaty of Waitangi 11You can also read
