AARON SPENCER: The problem with Principles

“All this turmoil, because of a single word?” This may be the bemused reaction of some future scholar engaged in reviewing the course of New Zealand history as it occurred in the late 20th and early 21st centuries. The word in question being, of course, ‘principles’. 

Or, to be specific; ‘Principles’ - with a capital P.  

At first glance the word in question appears not to contain any incendiary properties. But it is this word, used several times in the 1975 Treaty of Waitangi Act, which is proving to be a source of great vexation as New Zealand increasingly finds itself in the midst of a blanket of constitutional fog.

It can be reasoned that the word ‘principles’ equates to ‘the fundamental truths’ i.e. the real substance, or gist, or essence; the nub of something. If we are to come up with a short summation of the essence of the Treaty, distilled from its three articles, we can say that it conferred British citizenship on the Māori people and afforded them the protection of the British Empire, it confirmed their property rights while allowing for land sales to settlers, and it allowed for the establishment of the British system of government and laws in this country. Māori society continued to order itself as per the Iwi and Hapu tribal structures, while acceding to the overarching sovereignty and governance of Queen Victoria and her government which was thereafter established in New Zealand.

All the salient points i.e. ‘principles’ that we need to take from the Treaty are therefore known. When the essence of something is ‘as written’, there is no need for further extrapolation or codification.

 So far we have been talking of ‘principles’; it is a set of codified ‘Principles’ (capital P) that are the 'bridge too far'. And it is the unfortunate appearance in the 1975 legislation of Principles with a capital P that has invited - if not necessitated - further extrapolation, with the process of codification having enabled a journey into speculation and abstraction, and the adoption of certain subjective opinions of those doing the journeying. This flight of fancy, embarked upon by Judges and academics, has in turn given us the ‘3 P’s’, which have found their way into the fabric of the Public service and local government and corporate entities. These 3 P’s (Partnership, Participation, and Protection) are also clearly an alliterative extension of ‘Principles’. One can surmise that if the pertinent word had been 'Fundamentals' instead of 'Principles' then we would probably be referring to the '3 F's'.  

Each step along this path - from the introduction of the word into legislation in 1975, to the purported need to then codify a set of Principles, to the creation of these Principles themselves - has taken us further from the Treaty ‘as it is written’.

 When it comes to the actions of Crown entities where they potentially conflict with Māori (or indeed, any citizens) private property rights, discussion between the parties concerned takes place to determine a way forward, with the aim of finding a mutually satisfactory outcome. This would be the case whether we were to utilise the Treaty ‘as written’, or if we were to utilise codified ‘Principles’. The existence of ‘Principles’ does not provide extra clarity to the matter one iota: in New Zealand the property rights of all citizens are enshrined in law. Much of the Treaty is today rendered superfluous simply by the act of it having been signed - becoming at once the foundation of a nation thereby established. Where once this document was required to confer citizenship upon the existing population, today the descendants of the Māori signatories are citizens at the moment of their birth. Similarly, where once an agreement was needed to establish property rights, today the law recognises the property rights of all citizens.

In conclusion, the case for utilising the Treaty purely 'as it is written' was emphatically stated by the Māori King Tūheitia in a speech at Turangawaewae earlier this year:

“There’s no Principles; the Treaty is written. That’s it.”

Aaron Spencer is a writer and truth seeker from the Bay of Plenty