in exercising its sovereign authority while dealing with Tauranga Maori, had to respect their tino rangatiratanga, or unqualified exercise of chieftainship.

The differences between the two texts of the Treaty may explain why Parliament, in passing the Treaty of Waitangi Act 1975, chose to require the Tribunal to consider claims of breaches of the principles rather than the provisions of the Treaty. Plainly, however, the Tribunal cannot ignore the Treaty’s specific provisions, since they are a starting point for the delineation of principles. As Justice Edward Somers of the Court of Appeal put it in 1987, in the leading case New Zealand Maori Council v Attorney-General (the Lands case), a ‘breach of a Treaty provision must… be a breach of the principles of the Treaty’.⁶³ The Tribunal in the Muriwhenua Land Report added that: ‘As we see it, the “principles” enlarge the terms, enabling the Treaty to be applied in situations that were not foreseen or discussed at the time.’⁶⁴ The Privy Council took a similar approach in New Zealand Maori Council v Attorney-General in 1994:

the ‘principles’ are the underlying mutual obligations and responsibilities which the Treaty places on the parties. They reflect the intent of the Treaty as a whole and include, but are not confined to, the express terms of the Treaty … With the passage of time, the ‘principles’ which underlie the Treaty have become more important than its precise terms.⁶⁵

Apart from a reading of the express terms of the Treaty, guidance as to the nature of its principles is also to be found in the circumstances surrounding the Treaty’s signing. The general nature of those circumstances is referred to in the Treaty’s preamble, which begins by stating that Queen Victoria was ‘anxious to protect’ the ‘just Rights and Property’ of the chiefs and tribes of New Zealand and to secure to them the enjoyment of ‘peace and good order’. More specific assistance is gained from the instructions given to Captain William Hobson in 1839 by Colonial Secretary Lord Normanby concerning the reasons for Hobson’s mission to establish ‘a settled form of Civil Government’ in New Zealand.⁶⁶ Further guidance as to the Treaty’s principles is to be found in the records of the exchanges between Crown officers, missionaries, and Maori when the Treaty was being explained and discussed at the various sites around the country where it was signed.

Bearing in mind these general considerations, we now discuss the principles most relevant to the Tauranga Moana raupatu claims that are the subject of this report.

1.5.2 Treaty principles and the Tauranga raupatu

We begin by noting that, although Treaty principles are often designated by a single word or phrase, they usually need to be explained or qualified at greater length. Some principles flow

63. New Zealand Maori Council v Attorney General [1987] 1 NZLR 641, 694 (ca)

64. Waitangi Tribunal, Muriwhenua Land Report (Wellington: GP Publications, 1997), p 386

65. New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513, 517 (pc)

66. Waitangi Tribunal, Report on the Orakei Claim, pp 191, 198, 194