What is wrong with the “partnership” interpretation of the Treaty principles?

The term “partnership” does not appear in the Treaty of Waitangi. The partnership concept is a recent invention of the courts.

The concept of “partnership” was given force in 1986 when Parliament, with very little debate, included undefined “principles of the Treaty of Waitangi” in the State-Owned Enterprises Act.

The Court of Appeal then interpreted this in 1987, writing that the Treaty “signified a partnership between Pākehā and Māori requiring each other to act towards the other reasonably and with the utmost good faith”. This definition of “partnership” was relatively restrained, but was a seed for later interpretations that expanded the concept without democratic input.

Despite successive governments failing to define in law what the Treaty principles really are, more references to the principles were added into new legislation. As the Minister who introduced the Resource Management Act 1991 stated later, “I am quite sure that none of us knew what we meant when we signed up to that formula”.

Meanwhile the courts and the Waitangi Tribunal have steadily pushed the boundaries of what is meant by Treaty principles and partnership.

In a 2019 decision, the Supreme Court extended a Treaty principle of “active protection” to the Government having a duty to privilege iwi in economic development, in which interests with “mana whenua” were deemed stronger than other commercial interests.

The emergent interpretation of Treaty principles as meaning separate rights for two separate peoples clearly does not align with either version of the original text, Māori or english.

Moreover, it has far-reaching implications for the life of every child born today. Small steps toward co-governance and racial quotas are a red flag for more sweeping changes in coming decades. This makes the Treaty principles a question of constitutional importance for all New Zealanders to decide.