Treaty principles in JR

Effect of a statutory Treaty clause

Creates legal requirements – breach → ultra vires

No Treaty clause?

Principle of legality – interpret consistently with Treaty (Trans-Tasman)

Lands case citation

NZMC v AG [1987] 1 NZLR 641 (CA)

Lands case – facts

Crown land being transferred to SOEs, putting it beyond Treaty settlements

Lands case – section

SOE Act s 9: Crown can't act inconsistently with Treaty principles

Principle – partnership

Good faith, reasonable, reciprocal – would a reasonable partner do this?

Principle – active protection

Fullest extent reasonably practicable – active not passive

Principle – redress

Reasonable redress where wrong found

Principle – consultation

Major decisions – consult Māori on implementation

All principles subject to…

Kāwanatanga – Crown's right to govern

Kāwanatanga limit

Principles don't allow unreasonable restrictions on elected government's policy

Lands case – result

Breach of active protection → ultra vires

Lands case – consequence

Clawback regime

Broadcasting assets case citation

NZMC v AG [1994] 1 NZLR 513 (PC)

Broadcasting – facts

Radio/TV assets to SOEs; concern for te reo

Broadcasting – active protection

Limited by what's reasonable (economy, state of taonga, past Crown defaults)

Material impairment test

Would transfer now or in future materially impair the Crown's ability to take reasonable action?

Material impairment – method

Counterfactual: before vs after transfer

Material impairment – considerations

Crown assurances, ability to fulfil them, capacity/willingness to redress

Broadcasting – why no impairment

Crown control, assurances, SOE s 4 social responsibility, redress, assets substitutable

Ngāi Tai ki Tāmaki [2018] NZSC 122 – facts

Concessions to Fullers and MRT on iwi's ancestral islands

Ngāi Tai – section

Conservation Act s 4: "give effect to" Treaty principles

Ngāi Tai – strength

Positive obligation – higher standard of care

Ngāi Tai – outcomes

May require substantive outcomes, even declining concessions

Ngāi Tai – relevant considerations

Preferential entitlement and economic benefit to iwi

Ngāi Tai – veto?

No veto for iwi

Ngāi Tai – error

Minister wrongly thought s 4 couldn't justify declining → material error of law

Matthew Palmer's two lenses

Constitutional dialogue; ordinary JR cases

Palmer – JR grounds used

Error of law, relevant considerations, legitimate expectation

Trans-Tasman [2021] NZSC 127 – facts

Marine consent to mine ironsand under EEZ Act 2012

Elaborated Treaty section

Specifies exactly what Treaty compliance requires (EEZ Act s 12)

Elaborated sections – pros (Palmer)

Certainty; Parliament decides what principles require

Elaborated sections – cons (Skellern)

Less judicial flexibility to protect indigenous rights

Trans-Tasman – held

Elaborated section not exhaustive unless explicit

Trans-Tasman – s 59

"Existing interests" includes tikanga interests; "other applicable law" includes tikanga

Trans-Tasman quote

Treaty clauses generously construed; limiting the Treaty must be made quite clear

Hart v Marlborough DC [2025] NZHC 47 – facts

Bylaw banning vehicles on coast where iwi had customary interests

Hart v Marlborough – held

LGA s 4 limited council's Treaty duties; bylaw needn't comply

Hart v Marlborough – iwi equality

No duty to treat different iwi/hapū the same

Hart v Marlborough – exam use

Open question – argue councils have common-law Treaty duties

Te Pou Matakana [2022] 2 NZLR 148 – facts

MoH refused vaccination data on unvaccinated Māori

Te Pou Matakana – held

Public COVID principles giving effect to Treaty → LE breached → ultra vires

Treaty-in-JR step 1

Which ground? Usually illegality (relevant considerations, error of law) or NJ/LE

Treaty-in-JR step 2

Treaty-incorporating provision? If not, principle of legality

Treaty-in-JR step 3

How strongly worded? (Dean Knight)

Strong provision

"Give effect to"/"not act inconsistently" – specific duties (Ngāi Tai)

Intermediate provision

Duty to consider; discretion how

Treaty-in-JR step 4

Which principles engaged? (lands case)

Treaty-in-JR step 5

Can the requirement fit the statute? (broadcasting; Hart)