Fact-checking Prebble’s resignation rhetoric

Concerningly, the Waitangi Tribunal is doing its legislated job.

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Opinion & Analysis

Richard Prebble recently resigned from the Waitangi Tribunal, after only five months as a member. Much speculation has surrounded both his acceptance of the role and his subsequent resignation. However, there has been little analysis of the reasoning he gave for his departure. A detailed look at his discourse reveals a pattern of factual inaccuracies, legal misinterpretations, and a fundamental misunderstanding of the Tribunal’s role and treaty history.

The New Zealand Herald published his opinion piece, Why I’ve Resigned from the Waitangi Tribunal – Richard Prebble, on 5 March. It contained numerous factual errors and misleading statements about the Waitangi Tribunal and the treaty.

This article examines just some of those. At a time when misinformation about the treaty and the Tribunal is rife, ensuring that readily verifiable information is accurate is an important responsibility for all writers and publishers.

Prebble asserts:

“The tribunal now says there are two Treaties, one in English and another in te reo, that are not translations of each other.”

The erroneous implications in this statement are profound.

His argument appears to rest on the claim that there is only one version of the treaty—the English one—and that the Tribunal has fabricated a second version in te reo Māori.

However, the idea that there are two texts was not an invention of the Tribunal; it was enshrined in law with the passing of the Treaty of Waitangi Act 1975, which established the Tribunal itself. The Act explicitly required the Tribunal to consider both texts and acknowledged their differences.

The Act also grants the Tribunal exclusive authority to determine their meaning and effect, for the purposes of that Act, and includes both the English and Māori texts in its schedule.

If Prebble is implying that the existence of two treaty texts is a modern development, he is incorrect—they have been explicitly recognised in law since at least 1975, and in reality, they have existed since 1840.

A factually accurate statement might read:

“The law establishing the Tribunal requires it to recognise that there are two texts of the Treaty, one in English and another in te reo, that are not translations of each other.”

His complaint, then, appears to be that the Tribunal is simply adhering to the law and fulfilling its mandate.

A more valid debate might be whether the Tribunal should still be required to give equal validity to both texts—particularly since the te reo Māori text was the one debated and predominantly signed, whereas the English text is now widely known as Hobson’s draft.

Treaty Principles and the Tribunal’s Role

Prebble further argues:

“Parliament, by empowering the tribunal to make recommendations based on the principles of the Treaty, has allowed the tribunal to create Treaty principles.”

He is correct that Parliament empowered the Tribunal to make recommendations based on Treaty principles. However, this was a deliberate and pragmatic decision by the Government at the time, precisely because there were acknowledged differences between the two texts. Parliament gave both texts equal standing—despite the English version being signed on only one occasion, and the Māori text being the one that was debated.

Given Prebble’s apparent dismissal of the te reo Māori text in his article, he may be implying that the Tribunal should base its recommendations solely on the English draft.

This, however, would be both outside the Tribunal’s jurisdiction and legally flawed. It is well established that where multiple versions of a document exist, the valid version is the one that was actually discussed and signed. Furthermore, the legal principle of contra proferentem states that in cases of ambiguity, the interpretation should favour the party who did not draft or propose the clause.

Additionally, for the Tribunal to make recommendations based on Treaty principles – without defining those principles – would result in ad hoc and inconsistent findings, ironically contradicting Prebble’s implied preference for consistency. For over 40 years, both the Tribunal and the courts have carefully developed and applied Treaty principles to ensure clarity and fairness.

Tribunal Precedent

Prebble also claims:

“The Waitangi Tribunal has declared it is not bound by previous tribunal rulings that sovereignty was ceded or by decisions of the courts.”

Regardless of whether the Tribunal has explicitly stated this, its legal framework is clear. Section 5(2) of the Treaty of Waitangi Act establishes that for the purposes of this Act the Tribunal:
“…shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between them.”

Therefore, the Tribunal is not bound by others’ decisions. It has the exclusive authority to determine the meaning and effect of the Treaty for all its purposes.

Prebble states:

“Having a tribunal that does not follow court rulings or its own previous findings is politically destabilising and unsustainable.”

The Waitangi Tribunal operates differently from courts that adhere to the doctrine of precedent. However, the Tribunal often references its earlier reports to maintain consistency and fairness. Each claim is assessed on its own merits, allowing the Tribunal to adapt its findings based on new evidence and unique circumstances presented in individual cases.

This approach ensures that the Tribunal's findings are both consistent and responsive to the specific details of each claim. It would potentially be destabilising and unsustainable for the Tribunal to not adapt its findings based on new evidence or the unique circumstances of a case, as that could lead to unjust outcomes.

In his reference to sovereignty, Prebble may be alluding to the Waitangi’s Stage One report for Te Paparahi o te Raki (Wai 1040) which found that the Northern tribes did not cede sovereignty when they signed te Tiriti o Waitangi in 1840.

The Tribunal’s report focused on the intentions and understanding of the rangatira in Te Tai Tokerau, based on their history, diplomatic engagements with the British, and the context in which they signed te Tiriti. The Tribunal found that these rangatira expected to retain their own authority while entering into a relationship with the Crown.

However, this finding applies specifically to the rangatira who signed in Northland—it does not automatically extend to all iwi. If Prebble seeks rigid consistency, would he prefer that this finding apply nationwide?

Likewise, if the Tribunal was to declare that henceforth it will follow court rulings and not think for itself about the two texts of the treaty and the evidence presented in each claim, it would be working outside of the parameters of the law.

Prebble’s ‘Humpty Dumpty’ Accusation

Prebble goes on to say:

“Accordingly, the tribunal has turned the Treaty upside down and ruled:

-Sovereignty was not ceded.

-The Crown pledged to enhance the chiefs’ authority.

-Queen Victoria agreed to govern in partnership with 650 chiefs.

-It is for Māori to decide what is to be decided by Māori.

-Māori were promised economic equality.

-Māori only agreed that the Crown could control settlers.

The tribunal reached these decisions by textual analysis rather than looking at the intent of the parties. Like Humpty Dumpty, the tribunal says words mean what they say they mean.”

Given that Prebble seems to be recognising only the English draft of the treaty, this view is not entirely surprising.

However, even if Prebble has based his own interpretation solely on the English text, ignoring the te reo Māori text, historical context, and the parties' intent, then ironically, he is engaging in the very practice he accuses the Tribunal of.

Extensive research, including Ned Fletcher’s The English Text of the Treaty of Waitangi, has demonstrated that that the meanings and intentions of the English draft are far more aligned with the Māori text than they may first appear.

Prebble invokes Humpty Dumpty from Alice Through the Looking Glass, who famously said, “When I use a word, it means just what I choose it to mean—neither more nor less.”

However, claiming that the Tribunal is inventing meanings—while he chooses to ignore half the words it is legally required to consider—is a curious inversion of reality.

If Prebble’s analysis is based entirely on a textual analysis of the English text, without reference to the context and intentions of the time, or to the te reo Māori text, that could conceivably lead to the conclusion that the Tribunal is pulling a Humpty Dumpty. However, as outlined earlier, analysis of the two texts is a key legal requirement of the Tribunal.

Part of that process must surely be ascertaining what words mean – not through abstract creative processes, but through specialised textual analysis, and understanding the context, usage and intentions at the time. Integrating the potential different meanings of the English and Māori words is a further key step to determining meaning.

If Prebble was to recognise the fact that the te reo Māori text, which was debated and signed, is the primary document, or even to just give it equal legitimacy, as the Tribunal’s legislation does, he would be a lot less confused. Even David Seymour has acknowledged that the te reo Māori text of te Tiriti is the valid document, albeit while steadfastly misinterpreting it.

Prebble’s Misplaced Complaint

It’s not clear why Prebble asserts that the Tribunal reached their decisions on textual analysis rather than the intent of the parties. Based on the Waitangi Tribunal reports I have read, the detailed evidence I have listened to at various inquiries, and the conversations I have had with claimants and legal experts, my perception is that the Tribunal has a significant focus on the intent of the parties to the treaty.

Ultimately when fact-checked, the thrust of Prebble’s complaint seems to be that the Tribunal is adhering to the law, working within their legally prescribed boundaries and fulfilling the requirements on them.

He simply doesn’t like the outcome, and relies on misunderstanding or misinformation to suggest that the Tribunal is at fault.

At the time of Prebble’s appointment, ACT Leader David Seymour stated: “ACT looks forward to his contributions in ensuring that the Treaty of Waitangi is interpreted and applied in a manner that reflects what it actually says.”

The subtext was clear: Seymour hoped Prebble would work to fundamentally change how the Treaty is interpreted and applied.

While their respective views of which text is valid seem to be at odds with each other, if that was indeed also Prebble’s aspiration, he may have been disappointed to discover the legal parameters he was bound to operate within.

If Prebble truly believes the Tribunal disregards its own past findings, he could have remained in his role and pushed for decisions that contradicted them, and aligned instead with his own preferences. Instead, he has opted to misrepresent how the Tribunal functions.

His claim of inversion is, in itself, an inversion—disregarding legal realities, established Treaty interpretations, and the actual workings of the Waitangi Tribunal.

Prebble’s final complaint is that he “will not participate in turning the Treaty into a socialist manifesto.” This deserves more full analysis than is possible in this article. I will return to this subject anon. Please hit subscribe (free and paid options available) to receive further analysis on this issue.

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