The first month has been for me, a whirlwind entry into the Royal Commission. There is much to be done and to prepare for. I have started my private sessions with survivors, albeit via zoom due to COVID 19 restrictions. These sessions are critical to our mahi and I want to thank those who have and will contribute. Ultimately these, along with the written accounts and public hearings, will serve as the backbone to our investigation. Ka mau te wehi!

Te Tiriti o Waitangi – The Treaty of Waitangi (Te Tiriti)– is a founding document of Aoteoroa/ New Zealand. Our Terms of Reference state that we must recognise Te Tiriti and its principles. Before I share my thoughts on important implications of Te Tiriti in our work, I would like to look at its role in the constitutional establishment of our nation.

The Treaty was signed in 1840 at the Waitangi Treaty grounds as an agreement between the British Crown and many of the Māori chiefs of the time. The purpose of the Treaty was to establish cohabitation, through an agreed set of rights for both Māori, (who occupied Aotearoa before British settlement) and the British settlers.

Today, Te Tiriti is widely accepted to be a constitutional document that continues to establish and guide the relationship between Māori and the Crown (embodied by the government) in Aotearoa.

While Te Tiriti is viewed as a constitutional document, its status in our national law remains unresolved and controversial today. This is due in part to the debate over how to interpret the two versions that were written each in Māori and English. Further complicating the constitutional role of Te Tiriti in our legal framework is the fact that our nation does not have a single written constitution.

The Waitangi Tribunal has exclusive authority to determine the meaning and effect of Te Tiriti as embodied in the two texts and to decide issues raised by the differences between them, pursuant to s 5 of the Treaty of Waitangi Act 1975.

Helpfully summarised in our Briefing paper[1] are the contemporary meanings afforded by the Waitangi Tribunal and case law. It outlines eight principles that have been drawn from Te Tiriti.

I provide some excerpts to each principle’s explanation here which are useful in understanding what they mean, but it should be noted that these are not full explanations: [2]

1. The Principle of Partnership

Importantly, this refers to the guarantee of tino rangatiratanga (full authority) that requires the Crown to acknowledge Māori control over their tikanga, resources, and people and to allow Māori to manage their own affairs in a way that aligns with Māori customs and values.[3]

2. The Principle of Autonomy

This refers to the mutual recognition between the parties of kawanatanga (governance) and tino rangatiratanga, which means that the Crown guaranteed to protect Māori autonomy over things Māori. This has been further described[4] as ‘the ability of tribal communities to govern themselves as they had for centuries, to determine their own internal political, economic, and social rights and objectives, and to act collectively in accordance with those determinants.’

3. The Principle of Reciprocity

As in the Autonomy principle, this refers to the part of Te Tiriti where Māori ceded kawanatanga of the country in return for a guarantee that their tino rangatiratanga over their land, people and taonga would be protected.

4. The Principle of Active Protection

From the Reciprocity principle this principle arises. The Crown retains an obligation to actively protect Māori tino rangatiratanga with the right to decision-making power over their affairs.[5] It’s important to note that this is qualified by reasonableness in terms of what protection is afforded in the prevailing circumstances.[6] However, it does require the Crown to keep itself informed of relevant circumstance as they apply to Māori needs.[7]

5. The Principle of Equity

Te Tiriti, as found by the Waitangi Tribunal, obliges the Crown to positively promote equity. This is in addition to the Crown’s guarantee to Māori of freedom from discrimination.[8]

6. The Principle of Equal Treatment

This one speaks for itself; Māori must be treated as equals with respect to rights. The Crown must ensure Māori do not suffer inequity and must also actively inform itself of the occurrence of inequity.[9]

7. The Principle of Options

This Principle speaks to the Crown requirement to protect the availability and viability of Kaupapa Māori solutions in the social sector and mainstream services to ensure Māori are not disadvantage by what is available for Māori preferences. [10]

8. The Principle of Redress

This holds the Crown accountable for breaches of Te Tiriti principles and any prejudice suffered by Māori. In short, the Waitangi Tribunal found the Crown has a duty to set these matters right.

I must stress again that this is not intended to be an exhaustive explanation, but rather an insight into the current meanings found by learned authorities. [11]

The Treaty - what it means for the Inquiry

The fact that such a tikanga based understanding has been dismissed in the colonising history since 1840 does not invalidate it. Rather, it merely indicates the steps this country still needs to take to properly honour Te Tiriti.

It also indicates that there is already a Te Tiriti based framework in place that could justly provide both a measure to assess the wrongs of abuse in care and a way to prevent such harm in the future.[12]

Dr Moana Jackson

For the Royal Commission, all our mahi needs to reflect Te Tiriti and its constitutional role in Aotearoa. This is required under our Terms of Reference.

Māori are disproportionately high in statistics about abuse and neglect in care and we will continue to work hard to make the Commission a place where Māori survivors feel confident and safe to share their experiences. Safety is paramount, and at the same time we will assure people we will listen openly and carefully and that the sharing of survivor stories will make a difference.

Te Tiriti and its principles provide a framework for the lens we must cast over our investigation. This means incorporating a Te Ao Māori (Māori world view) approach to our work for and with survivors. It is also about understanding how our shared history is important for gleaning insights that assist us to critically reflect on our work and how the Crown must give effect to Te Tiriti.

Examples of what this means in practice, can be found in the Commission:

• building strong partnerships externally with our survivor communities, iwi and hapū authorities and other relevant Māori entities;
• operating in a way that recognises, enables and protects the right to self-determination. In this context it is about recognising and enabling the diversity that survivors bring with them and being flexible enough to respond in a culturally flexible manner; and
• providing mechanisms for participation and co-design opportunities with survivors, NGOs, Iwi and Māori entities to ensure survivors are both supported and encouraged to engage.

Our values of aroha, fairness and balance, independence and determination and transparency overlay our approach, guiding the Inquiry journey with those we work with. This is about working with hapū, iwi and whānau to ensure the Royal Commission is a safe and welcoming place for all to contribute. We embrace whakamana – through respect for everyone’s dignity and connections – and mahitahi, collaboration and cooperation with all those we work with.

For me personally, I see Te Tiriti as an important part of our nation’s history that all New Zealanders should take the time to understand and fully consider from all sides. It is an agreement between two parties that set about the unique formation of our nation. I am driven by ensuring the Royal Commission does its part to recognise this importance and honours the obligations within.

1. Royal Commission of Inquiry: Abuse in Care, Briefing paper, Findings on te tiriti/treaty of Waitangi principles and māori consultation identified in recent inquiries and reports. Relating to redress of abuse in state care.  
2. www.waitangitribunal.govt.nz/treaty-of-waitangi/principles-of-the-treaty/
3. Waitangi Tribunal, Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wellington: Legislation Direct, 2017), p 21.
4. By the Turanga Tribunal
5. Waitangi Tribunal, The Ngātiwai Mandate Inquiry Report (Wellington: Legislation Direct, 2017), p 27; Waitangi Tribunal, Te Whanau o Waipareira Report, p 215; Waitangi Tribunal, Ngāpuhi Mandate Inquiry Report, p 24; Waitangi Tribunal, Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims, 2 vols (Wellington: Legislation Direct, 2004), vol 2, p 739; and Waitangi Tribunal Hauora: Report on Stage One above n 3, p 30.
6. New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC), p 517.
7. Waitangi Tribunal, The Napier Hospital and Health Services Report, p 362
8. Ibid, pp 48, 62 ; Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy (Wellington: Legislation Direct, 2004), p 133; Waitangi Tribunal, The Mohaka ki Ahuriri Report (Wellington: Legislation Direct, 2004), p 27; Waitangi Tribunal, The Te Arawa Mandate Report (Wellington : Legislation Direct, 2004), p 94; Waitangi Tribunal, The Offender Assessment Policies Report (Wellington : Legislation Direct, 2005), p 13; Waitangi Tribunal, He Maunga Rongo, vol 2, p 428.
9. Waitangi Tribunal Hauora: Report on Stage One, p 34.
10. Waitangi Tribunal Hauora: Report on Stage One, p 34.
11. Waitangi Tribunal Foreshore and Seabed (Wellington: Legislation Direct, 2004) p 134; see also Waitangi Tribunal, Tarawera Forest Report, p 29.
12. RCOI Transcript of Dr Moana Jackson, 30/10/19, page 17, lines 23-30.