Part 1: Should there be consultation with Maori? If so, what form should the consultation take?
Part 2: Is there a possibility of conflict between the principles of the Treaty and the legislation? If so, should uncertainty be avoided by including an appropriate provision in the legislation?
Part 3: Are any Maori rights and interests affected by the legislation recognised at common law? If so, have they been clearly identified and addressed by the legislation?
The Treaty of Waitangi does not directly create rights or obligations in law except where it is given effect by legislation. It however has been judicially described as "part of the fabric of New Zealand society" (Huakina Development Trust v Waikato Valley Authority  2 NZLR 188, 210) and has become a constitutional standard. Legislation is expected to comply with the principles of the Treaty. Generally the Courts will presume that Parliament intends to legislate in accordance with those principles and that in relevant contexts they should have appropriate application (so that, eg, decision makers may have to take some account of the principles), even perhaps in the absence of any mention of the Treaty in the particular legislation. (See eg the decisions of the Court of Appeal in Attorney - General v New Zealand Maori Council  2 NZLR 129 and Attorney - General v New Zealand Maori Council (No 2)  2 NZLR 147.)
The Government's recognition of the need for legislation to comply with Treaty principles if possible is itself a recognition that, whatever the difficulties, the Treaty is constitutionally important and must (at the least) strongly influence the making of relevant legislation. Thus the Cabinet, in its directive of 23 March 1986, agreed that-
- all future legislation referred to it "at the policy approval stage should draw attention to any implications for recognition of the principles" of the Treaty and
- "departments should consult with appropriate Maori people on significant matters affecting the application of the Treaty", the Minister of Maori Affairs to provide any necessary assistance in identifying those people.
It also noted that "the financial and resource implications of recognising the Treaty could be considerable and should be assessed wherever possible in future reports".
The principles of the Treaty, so far as they affect the preparation of legislation, are among those that derive from the basic principles of partnership and the need for good faith between the Crown and Maori as parties to the Treaty. The principle of appropriate consultation, in accordance with the Cabinet's directive just quoted, is especially important where without it Maori interests or values may not be identified or adequately considered. (The Court of Appeal has said that 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  2 NZLR 142, 152.) Similarly important matters, arising from the basic principles, are
- the presumption of legislative Treaty compliance mentioned above;
- whether an appropriate provision should be included in the legislation to give some effect to Treaty principles; and
- that in many cases the law and processes (and hence the content of the relevant legislation) should be determined by the general recognition in Article 3 of the Treaty that Maori belong, as citizens, to the whole community, so that no separate consideration of Maori is appropriate.
It must also be borne in mind that some rights covered by Article 2 are also recognised at common law (such as customary rights in land where these are found to exist - see paragraph 5.3.1) and may raise special questions if the legislation is to affect them.
The following issues are discussed in this chapter:
Part 1: Should there be consultation with Maori?
Part 2: Is there a possibility of conflict between the principles of the Treaty and the legislation?
Part 3: Are any Maori rights and interests affected by the legislation recognised at common law?
SHOULD THERE BE CONSULTATION WITH MAORI?
5.1.1 Outline of the issue
Maori should be consulted in some appropriate way if the proposed legislation would affect Maori rights and interests (including the taonga of Maori) protected by Article 2 of the Treaty.
Consultation is a means by which Maori may make some contribution to the content of proposed legislation. Whether consultation is necessary or appropriate, and if it is what form it should take, are determined in light of -
- the Treaty and in particular of the rights and interests recognised in Article 2; and
- the recognition given to the principle of consultation by the Courts and by government policy.
It will be necessary to identify at an early stage the Treaty issues involved, that is, the significant matters "affecting the application of the Treaty" and Maori rights and interests, that will be the subject of the proposed legislation and necessitate consultation.
Consultation must be with appropriate Maori people or institutions (who may be identified with the help of Te Puni Kokiri), including representatives from any iwi or hapu particularly affected.
Consultation may in the first instance have to extend to identifying the Treaty issues and rights and interests involved and to the matters raised in Part 2 and Part 3 below.
Consultation should as far as possible be in a form that those consulted regard as appropriate and should have clear results that are communicated by way of feedback to them and their communities.
IS THERE A POSSIBILITY OF CONFLICT BETWEEN THE PRINCIPLES OF THE TREATY AND THE LEGISLATION?
5.2.1 Outline of issue
As noted in Chapter 1 it is important that legislation be enacted only if necessary. There may be means other than legislation which are appropriate to give effect to Treaty obligations. If identifiable Maori rights and interests protected by the Treaty would be affected by proposed legislation, the question may arise whether there should, as a matter of policy, be some specific recognition or protection of those rights and interests by the inclusion of an appropriate provision in the legislation. In any event there will be a question of the effect of the proposed legislation on those rights and interests, whether or not such a provision is included.
There is a range of provisions used in existing legislation which vary in the effect they give to the Treaty from the stronger provision of s.4 of the Conservation Act 1987 (the Act to be so "interpreted and administered as to give effect to the principles" of the Treaty) to the weaker one of s.8 of the Resource Management Act 1991 which (put briefly) merely requires persons exercising power under the Act "to take into account" the principles. Provisions such as these may, as well as varying in strength, relate to the interpretation and administration of the Act as a whole or to the manner in which, or to the conditions under which, powers under the Act are to be exercised. The provisions may have the effect of defining the extent to which the Act is to implement the Treaty. But it is also possible that, as regards the non-specific provisions in the range mentioned above, the Courts will use whichever one is chosen simply as a means to ensure that Maori interests are not overlooked, or (at least without fair consideration by the exerciser of power) transgressed, by those exercising the relevant powers.
Where possible the Maori rights or interests affected should be identified in the legislation, together with the specific means of protecting them that is appropriate (such as the obtaining of consents, if consultation is deemed insufficient). If this is not done the Court may have to undertake the dual task itself, as best it can.
In considering these issues drafters need to bear in mind the general presumption in favour of Parliament's intention to comply with Treaty principles, mentioned above. If the context of the legislation would invite that presumption and it is intended that the legislation should take effect without reference to the Treaty, the legislation (quite apart from not including any provision of the types referred to above) must be drafted to make that intention clear and hence to exclude the presumption. (See, eg, the Radio New Zealand Act (No 2) 1995 and the effect given it, despite Treaty principles, by the Court of Appeal in New Zealand Maori Council v Attorney-General  3 NZLR 140, 168, 174-175.)
The following must be ascertained as precisely as possible:
- what, if any, Maori rights and interests protected by the Treaty will be affected by the legislation;
- how the Crown's power to govern (kawanatanga) relates to them; and
- how they will be affected, in light of the presumption referred to above.
If the presumption is to be excluded, appropriate wording will be required, possibly assisted (as in the case just referred to) by the context of the legislation and its clear purpose as a whole.
If a provision giving some effect to the Treaty or its principles is to be included, the relevant rights and interests should, if possible, be identified in the legislation and the appropriate provision must be selected, in the knowledge -
- that it may be taken as defining the extent to which the Act gives effect to the Treaty; but also
- that a non-specific provision in the range mentioned above, whichever one is adopted, may simply be used by the Courts to ensure some recognition of Maori interests, as they consider appropriate.
If any of the rights and interests affected by the proposed legislation are also common law rights, special considerations apply. See Part 3 below.
ARE ANY MAORI RIGHTS AND INTERESTS AFFECTED BY THE LEGISLATION RECOGNISED AT COMMON LAW?
5.3.1 Outline of issue
Some classes of rights and interests covered by Article 2 of the Treaty have been recognised at common law, quite apart from the Treaty. Being legal rights and interests, they are in a stronger position than Treaty rights and interests not so recognised and are protected by more than the presumption that Parliament intends to comply with Treaty principles. Rights to Maori customary land coming within Te Ture Whenua Maori Act 1993 now appear to be the main such class. The issue here, different from that covered in Part 2 above, is the effect the legislation is to have on any such existing legal rights and interests.
If the rights and interests in question are recognised at common law and the legislation is to extinguish them or to take effect despite them, the trend of modern authority is to require this to be done especially clearly, in express terms. See, for example, the legislative vesting in the Crown of the beds of Lake Taupo and of the Waikato River down to the Huka Falls, expressly free of Maori customary title, by s.14(1) of the Maori Land Amendment and Maori Land Claims Adjustment Act 1926.
This is the approach described as "well-settled" by Blanchard J in Faulkner v Tauranga District Council  1 NZLR 357, 363. An Act may be sufficiently clear to exclude the presumption that Parliament intends to legislate in accordance with Treaty principles but be insufficiently specific to extinguish or otherwise affect existing Maori customary rights and interests at common law.
Where Maori rights and interests are to be affected by legislation, the nature of the rights and interests must always be checked: in particular, whether any of them are, or are arguably, rights or interests recognised at common law.
If the legislation is of general application, whether it is intended to apply to such rights and interests may need special consideration.
If the rights and interests are to be extinguished or otherwise affected, precise wording to achieve this should be used.