Other judges made similar comments.⁷² Since then, the principle of partnership has been constantly reiterated in Tribunal reports. We select one view that captures the essence of partnership : that ‘Maori must recognise those things that reasonably go with good governance just as the Crown must recognise those things that reasonably go with being Maori’.⁷³

(3) The principle of active protection

As the president of the Court of Appeal stated in the Lands case, both parties to the partnership have obligations. The Crown’s obligation, he continued, is ‘not merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable’. Referring to passages in the Tribunal’s Report on the Motunui–Waitara Claim, Report on the Manukau Claim, and Report on the Te Reo Maori Claim that supported that proposition, he described them as ‘undoubtedly well founded’.⁷⁴ He also described the Crown’s responsibility as ‘analogous to fiduciary duties’.⁷⁵ However, the principle of active protection goes beyond the Crown’s obligation to protect specified Maori resources, as spelled out in article 2 of the Treaty. As several Tribunal reports have argued, the Crown also needs to ensure that Maori retain a sufficient endowment of land and other resources, and receive effective Government aid to fully develop them in order that they can share in the economic benefits that have flowed from colonisation.⁷⁶ The fiduciary obligation also applies to other aspects of Government policy, such as providing for the health and welfare of Maori.⁷⁷ Such affirmative action is not a modern invention but was explicit in Normanby’s instructions to Hobson and in both the preamble and article 3 of the Treaty.

(4) The principle of redress

The Crown’s fiduciary responsibilities have other ramifications. For instance, the Muriwhenua land Tribunal described the principle of active protection as embracing three other key elements of the Treaty relationship – honourable conduct, fair process, and recognition by the Crown and Maori of one another’s authority.⁷⁸ Elaborating on the requirements of fair process, that Tribunal noted both that the Treaty, in effect, promised the ‘necessary laws

72. Waitangi Tribunal, Report on the Orakei Claim, p 207

73. Waitangi Tribunal, Report on the Motunui-Waitara Claim, p 52(b) (as quoted in Waitangi Tribunal, Te Whanau o Waipareira Report, p 29)

74. New Zealand Maori Council v Attorney General [1987] 1 NZLR 641,665 (ca). See also the similar statements of the other four judges at pages 682, 693, 703, and 716.

75. Ibid, p 664

76. Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim, pp 195–196; Waitangi Tribunal, Report of the Waitangi Tribunal on Claims Concerning the Allocation of Radio Frequencies (Wellington: Brooker and Friend Ltd, 1990), pp 31–32; Waitangi Tribunal, The Radio Spectrum Management and Development Final Report (Wellington: GP Publications, 1999), pp 40–41

77. Waitangi Tribunal, Napier Hospital and Health Services Report (Wellington: Legislation Direct, 2001), pp 49–57; Waitangi Tribunal, Te Whanau o Waipareira Report, pp 213–234

78. Waitangi Tribunal, Muriwhenua Land Report, p 388