14.       By Article One of the Treaty the Crown has the obligation to govern. Implicit in that duty is the reciprocal obligation on Maori to accept the Crown’s governance.

15.       By Article Two, the Treaty guaranteed to Maori “the full exclusive and undisturbed possession of Lands” or “te tino rangatiratanga o ratou w[h]enua”. However the Treaty also envisaged the transfer of ownership in land from Maori to settler via Crown pre-emption. Two further obligations arise from this:

15.1     The Crown’s duty actively to protect Maori ownership in land for so long as Maori wanted to retain that ownership; and

15.2     The Crown’s duty to ensure that the transfer of ownership from Maori to settler via the Crown occurred fairly and effectually.

16.       In determining whether the Crown has fulfilled these three duties (the duty to govern, to protect Maori land and to ensure a fair and effectual transfer of ownership) the so-called ‘paramount’ principle of partnership is relevant. This principle places a reciprocal obligation on both Treaty partners to act in good faith, reasonably and honourably towards each other.

The duty to govern – Kawanatanga

17.       It is one of the Crown’s principal contentions that in assessing the Crown’s actions in Tauranga in the latter half of the 19^th century against significant regard must be had to the temporal context in which those actions occurred. Failure to do so – for example by judging the reasonableness of Crown actions then by our own 21^st century standards – does not only a great injustice to the Crown but ultimately also does a considerable disservice to the Tribunal process itself. In the recent words of Professor W. H. Oliver:

The elaboration of an alternative past which postulates a function for ‘the Crown’ which could not conceivably have been discharged is of no help in [the Tribunal’s] primary task