The Treaty Principles have been developed carefully over time, since the 1980's, by the Waitangi Tribunal, the courts, and previous governments. Their purpose is to reconcile differences between what Māori and the Crown each understood the Treaty to mean and to address breaches after the Treaty was signed. The concept of having Treaty Principles is a middle ground or compromise, allowing the Treaty partners to move past interpretation disputes and to implement a workable relationship. It is a framework which previous governments have used in over 40 pieces of legislation.

While there is no specific list of Treaty Principles, we now have a pretty clear idea about what the term “the principles of the Treaty” means when used in legislation, and how the principles should be applied. The application of “principles”, rather than more specifically prescribed rules, is not unusual in the law. The courts will often look to identify broad legal principles in order to understand how best to interpret and apply the law to specific cases as they arise. Key Treaty principles that have been identified and applied are: Partnership: The Treaty established a relationship akin to a partnership and imposed on both Treaty partners an obligation “to act towards each other reasonably and with the utmost good faith”. The principle of partnership is about the concepts of kāwanatanga and tino rangatiratanga. Active protection: The Crown has positive obligations to deliver on the guarantee of tino rangatiratanga. The capacity of Māori to exercise authority over their own affairs “as far as practicable within the confines of the modern State” is key to the active protection of tino rangatiratanga. Redress: Where there has been a breach of Treaty Principles, there ought to be “a fair and reasonable recognition of, and recompense for, the wrong that occurred.” Mutual benefit: The basic concept was that a place could be made for two people of vastly different cultures to achieve mutual advantage, and where the rights, values and needs of neither would necessarily be subsumed. To achieve this requires compromises on both sides. Options: This principle requires that the Crown to consider the availability and viability of kaupapa Māori solutions in the social sector as well as in so-called mainstream services, in such a way that Māori are not disadvantaged by their choice. Equity: Freedom from discrimination, also obliges the Crown to positively promote equity. There is now a considerable body of law which identifies and applies Treaty Principles which are contained in legislation. Some government agencies have also made statements on how they understand the Treaty Principles apply to their work. So, Treaty Principles have been developed by the Waitangi Tribunal, the Courts, and government. For a recent example of how the Treaty Principles are dealt with in practice, see the approach of the Royal Commission of Inquiry in its Abuse in Care (Whanaketia) report: Chapter 2: Te Tiriti o Waitangi | Abuse in Care - Royal Commission of Inquiry

The government’s coalition agreements include controversial proposals relating directly to the application of Treaty Principles: The National-New Zealand First agreement includes a proposal to review all references to Treaty Principles in legislation and remove or replace them, as well as a proposal to review the Waitangi Tribunal. The National-ACT agreement states that the parties in the coalition will “Introduce a Treaty Principles Bill based on existing ACT policy and support it to a Select Committee as soon as practicable”.

1. ACT's proposed principles are based on disputed translations - described by 27 respected licensed Māori translators as “deeply flawed” and which ‘failed international ethical standards.’* 2. ACT's proposed principles ignore the fact that the Treaty is an agreement between Māori and the Crown. Any re-drafting of an agreement should include both signatories. 3. ACT’s proposed principles would override the Treaty Principles, which are already well established in our law. This is because ACT disagrees, in particular, with the principle that the Treaty is a partnership between Māori and the Crown. *Rnz.co.nz, Treaty Principles Bill: Māori translators pen letter over ‘deeply flawed translations’, 5.31pm, 3 July 2024

The coalition agreement commits the government parties to support the Treaty Principles Bill to the select committee stage. The National Party has indicated that it does not support holding a referendum and the Bill becoming a law. However, the ACT Party leader David Seymour has made it clear that he thinks he can persuade his coalition partners to support the bill progressing through the final stages of the parliamentary process to become law. Given that the National Party has already agreed to support the first stages of this bill it is possible that National will continue to support the bill if it thinks that there will be some political advantage in doing so.

A good faith public discussion grounded in good information would be helpful. This is not what is being proposed by the Treaty Principles Bill. A referendum such as the one proposed is not an appropriate vehicle for such a discussion. It reduces a range of complex legal, social, political, and constitutional issues to a yes or no proposition, which is likely to produce much more heat than light. Recent fear-mongering over a range of issues relating to Māori participation and visibility in public life, including co-governance, has created a hostile environment in which it is virtually impossible to have a good faith conversation about the Treaty. A referendum in this climate would be unhelpful and divisive.