Lessons from Aotearoa New Zealand on how a Treaty can shape policy

The 2020 NZ Public Service Act articulates the responsibility of the Public Service to support the Crown to fulfil its responsibilities to Māori under The Treaty of Waitangi/Te Tiriti o Waitangi. Chief Executives are accountable for meeting those responsibilities.  This means that public servants in Aotearoa New Zealand must navigate an environment shaped by the Treaty’s Principles, which might add extra challenges to their work but provides opportunities to develop policy which genuinely reflects Māori values, interests and needs.

The Institute of Public Administration New Zealand (IPANZ) recently hosted a webinar on Te Tiriti in Policy Making where Will Collin, Principal Advisor, Te Tiriti me te ao Māori policy, Ministry for the Environment/ Manatū Mō Te Taiao, outlined the history of the Treaty and its principles, and then explained how public servants can work with iwi under a Treaty framework. He used a recent policy and legislative process to explain how to design and deliver free and frank policy advice that is responsive to Māori and honors Treaty principles.

What is the Treaty of Waitangi?

The Treaty of Waitangi was signed by the British Crown and over 500 Māori Rangatira (Chiefs) in 1840 at Waitangi, Northland, as well as many other locations across the country in the months that followed.

Among other things, the Treaty aimed to protect the rights of Māori tribes to keep their land, forests, fisheries, and treasures while also establishing rights of New Zealand citizens and declaring British sovereignty over New Zealand.

The English language version of the Treaty differs from the Māori language version, which has led to different understandings and expectations of the Treaty’s terms.

Mr Collin said the Treaty formed part of Aotearoa New Zealand’s (unwritten) constitution, which had been stated in a number of different places by politicians and by the courts.

He said the biggest challenge when applying the Treaty to the policymaking process was probably a general lack of awareness of the Treaty and the Treaty principles for both policymakers and for politicians.

“The Waitangi Tribunal has found that Te Rangatira who signed Te Tiriti o Waitangi in February 1840 did not cede sovereignty, instead agreeing to share power and authority, and of course this has significant potential constitutional ramifications,” he said.

“So, the principles of the Treaty of Waitangi – the phrase often used in in legislation – was a concept first introduced, in terms of legislation at least, in the Treaty of Waitangi Act 1975,” he said.

“The principles are derived from a number of sources, from the text of the Treaty, from the spirit, the intent, and the circumstances in which it was signed. And it’s important to know that there’s no final and complete list of the principles of the Treaty. As the principles are generally held to be constantly evolving as the Treaty is applied to particular issues and new situations.”

However he said there were some principles that are well established and relevant in a number of circumstances:

• Kāwanatanga (government’s right to govern)
• Tino rangatiratanga (Māori authority and autonomy)
• Te mana taurite (equity)
• Active protection
• Mutual Recognition and respect
• Partnership
• Redress
• Duty to make informed decisions
• Right to development
• Equal treatment
• Options
• Reciprocity and mutual benefit
• Duty to act reasonably, honourably and in good faith

Applying the Treaty in Practice

He said that this ambiguity about the Principles was both a strength and a weakness. Applying the Principles required flexibility and a sense of context, because there was often a range of policy options that would comply with Treaty Principles – some better or worse than others.

“In terms of best practice application of Te Tiriti policy, aim for Treaty consistency throughout all aspects of the policy cycle,” he said.

“Sometimes I see us focusing on certain aspects like engagement in the early stages, or Treaty impact analysis in terms of our policy analysis and advice, but not necessarily all the way through.

He warned that there would often be barriers to best practice and that public servants needed to balance the principles with the practical, which made building strong relationships with iwi even more important.

“If you take the time up front to develop relationships, to develop your processes and to kind of get everything going really well, and you spend a bit more time there, then in the later stages of your process, you can go faster because it’s a lot more efficient.

“You build that trust, you build that understanding, and you know how to make those decisions quickly and without impacting on your relationships.”

He used the Treaty of Waitangi clause for the Natural and Built Environment Act 2023 (since repealed by the new coalition government) as an example.

“We developed a policy paper looking at the issues and the options of different formulations and different options for addressing this issue. We tested this with our agency colleagues and with our Treaty partners, both at our regional hui (meetings) and also, we worked with a couple of national Māori groups on this.

“So we had an exposure draft of the NDA, the Natural and Built Environment Act. We had further Ministerial decisions after that based on feedback from that exposure draft. We had the select committee again for the bill proper.

“The insight there is having done that upfront work to develop our first best free and frank advice, we were able to draw on that heavily throughout, and be able to respond to different lines of argument.”

He said that public servants needed to be aware that there was sometimes not one Māori view, and that consultation often exposed diversity of opinions, which needed to be reflected in advice to department heads and ministers.

“One of the best ways that we as public servants can build trust with ministers is by providing our free and frank advice, whatever that may be. Then, when ministers make decisions, whether that accords with our advice or not, our role is to implement that. And that’s the way we can best build trust.”

Transferable lessons for better policy advice

The example shows the importance of engaging with First Nations throughout the policy process and ensuring that diverse interests are woven into free, frank and fearless advice to ministers and other decision-makers. A Treaty and acknowledged principles can form part of guidelines for developing inclusive policy advice. In Aotearoa New Zealand, guidance to public servants developing policy advice is provided through DPMC’s Policy Project policy improvement frameworks which all reference the Treaty of Waitangi, as well as in the Cabinet manual and templates.

Want to know more?

The IPANZ webinar and its accompanying resources are freely available here.

Thanks to IPANZ for allowing ANZSOG to share this material.

ANZSOG also holds a collection of resources on working with First Nations. For those interested, the Wise Practice Collection is a combination of public administration and policy resources centred on the knowledge and culture of the First Peoples of Australia and Aotearoa New Zealand. It focuses on stories which demonstrate how First Peoples culture, knowledge and perspectives can achieve successful outcomes when Indigenous communities and governments come together to work in partnership.

First Nations policy in Australia is now being designed and implemented under the National Agreement on Closing the Gap framework. This Explainer for public servants, written by ANZSOG in conjunction with the National Coalition of Peaks, outlines the responsibilities for public servants at all levels.

ANZSOG’s 2023 First Peoples to All Peoples Conference brought together over 800 people in Brisbane to hear from over 20 First Nations speakers in a series of plenaries, panels and yarning sessions, examining First Nations policy through the lenses of Australia’s National Agreement on Closing the Gap commitments, particularly the four Priority Reforms, as well as the New Zealand Public Service Act 2020. The conference report and videos of all sessions are freely available.