Treaty Law: Principles of the Treaty of Waitangi in Law and Practice

Over the past 40 years, the phrase “the principles of the Treaty of Waitangi” has become a common reference in legal vocabulary in Aotearoa New Zealand. It has been interpreted and applied by the Waitangi Tribunal, as well as by the ordinary Courts, up to and including the Privy Council and, more recently, by the Supreme Court.

The principles have been invoked in a wide variety of contexts, ranging from the protection of Māori customary lands and resources, to the process and substance of government decision-making, and the actions of state-owned companies.  The principles have been incorporated into a range of statutes – in so-called “Treaty clauses” – and referred to in the government Cabinet Manual, the formal touchstone of executive decision-making. In short, the principles have become the primary legal framework through which the Crown-Māori relationship is analysed and assessed, as that relationship has evolved ever more nuanced and challenging dimensions.

Treaty Law: Principles of the Treaty of Waitangi in Law and Practice analyses and assesses over 600 judicial decisions with the intention of synthesising how the courts of New Zealand have interpreted the principles. It is a statement of current and historical applications, and a first stop for future research, discussion and deliberation.

Written by Damen Ward, Kevin Hille, and Carwyn Jones.

9 August 2024

Treaty Law: Principles of the Treaty of Waitangi in Law and Practice has been awarded the JF Northery Memorial Book Award for best legal book published in 2023 by the Legal Research Foundation.  

The adjudicator made the following comments:

It is a well-researched and well-presented exposition of the development of treaty jurisprudence and case-law over the last 40 years.  There has been nothing like it before.  It is founded on extensive research and in-depth analysis of the case-law from all relevant fora.  It provides a correct and indeispensable point of reference for students, teachers and practitioners of law.  Those with a particular interest in this area as well as those with less familiarity will find their knowledge much improved from reading it.

This book is also essential reading for those who seek to debate the place of Te Tiriti and its principles.  For that to be done sensibly and effectively we first need to correctly understand their place in our current law.  This book greatly assists here.  

Put shortly, this book is a game changer for all who have an interest in Aotearoa New Zealand's constititutional health.

1. Introduction
2. Overview and summary of specific chapters
3. The Treaty: Outline of Its Legal Status and Effect
4. Judicial Review and the Principles of the Treaty
5. The Principle of Partnership, Reasonableness, And the Duty to Be Informed
6. The Principle of Active Protection
7. The Principle of Redress
8. Treaty Principles and Fiduciary, Fiduciary-Like, And Good Faith Duties
9. The Treaty and Statutory Interpretation
10. Tikanga Māori As a Source of Laws, Values, And Considerations in Treaty of Waitangi Case Law
11. Tikanga Māori, Statutory Interpretation, and the Treaty
12. Treaty Litigation: Parties and Representation
13. Treaty Settlements