David Seymour treaty principles proposal recognises need for clarity

But it was not the first piece of legislation to make reference to these “principles”. The Treaty of Waitangi Act 1975 set up a tribunal to make recommendations on claims relating to the practical application of the principles of the treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles.

The legislation of 1975 and 1986 and subsequent laws that use the “principles of the treaty” mantra do not refer to the “terms” or “provisions” of the treaty but to its “principles”.

At no time was it considered necessary to define these principles. These, no doubt, were to be discovered.

Or was the assumption that there were principles to begin with that would spring like Athena fully formed from the head of Zeus?

In a sense, this recognises that events – historical, social and demographic, to mention but a few – had overtaken the precise wording of the treaty, which was an artefact.

It was by way of the principles that new life would be breathed into the treaty but those principles would be guidelines only and they would be identified and articulated by the courts.

As things stand, this has not taken place. The treaty has provided a foundation for a number of developments in the law, most recently with the development of tikanga as an element of the common law. The principles of the treaty are undefined, and unarticulated. The certainty and clarity that are essential elements of law are not present.

So, if the principles of the treaty are not defined and are not clear, what is the problem with Act’s proposal to have them clearly articulated after a lengthy consultative process?

In what seems to be the practice these days, an application has been made to the Waitangi Tribunal to rule on the validity of Act’s proposals, although, unlike Athena, these proposals have not yet achieved full form.