Treaty of Waitangi Principles Bill

This is a moment for Kiwis to read and reflect – and argue.

The government’s Treaty of Waitangi Principles Bill has been introduced in the House of Representatives.

The wording of the Bill differs from what was anticipated at the start of this year. So I encourage people to read the Treaty Principles Bill and make up their own minds, rather than read edited summaries. (Readers abroad can find an explainer on the Treaty itself here.) The Bill lays out some basic rights, but it would not apply to Treaty settlements (see clause 8). Treaty settlement bills get unanimous support in parliament, and they are not directly affected by the Principles Bill.

A contest of values

The intense debate about the Treaty Principles Bill reflects, in part, differences of political ideas and values.

The ACT Party, which initiated the bill, stands for the rights of the individual and for equality of opportunity. We may not have equal abilities, status and wealth, but fundamentally all citizens should be treated as equals before the law, they say, regardless of ethnicity. Ancestry shouldn’t mean that anyone has more or fewer basic rights than others. ACT’s bill interprets the principles of the Treaty in ways that seek consistency with those underlying values of liberal democracy.

Those who oppose that model may emphasise equality of outcome as a goal, seeking to correct structural inequalities created by force of colonisation and of state or market power. They see the Treaty as a formal recognition of pre-contact political autonomy (tino rangatiratanga) that was never formally ceded and that continues to exist. Hence indigenous rights should be protected in law. The Principles Bill does go some way towards recognising customary rights.

There’s a normative pressure on commentators to oppose the Bill, but, as a political theorist, my job is to look for the reasons that underlie differing political opinions. Recent events around the world have revealed how things can go wrong when people feel like no one cares what they think or why they think it.

The temperature of the Treaty debate is heightened by indignation, anger and guilt. We can expect a prolonged spell of discontent as the select committee hears public submissions over the coming months.

The prime minister decided that the Bill won’t make it past that stage, as further debate and a referendum would, he said, be “divisive”. But it’s worth hearing what you think about the legislative process from here.

The ACT Party was responsible for this Bill, but it was introduced as a government bill as a result of post-election coalition negotiations. Even though the Bill looks set to fail, ACT will probably benefit politically, as it makes them look staunch to their supporters, while making National look cowardly (to those on their right flank) for cancelling it. On the opposing side, Te Pāti Māori will benefit from media exposure and leadership of their base.

I’d be interested in your comments on the wording of the Bill itself. What’s right or wrong with the text? Could it be improved? Or is it beyond redemption?

Some background

The Treaty was originally an instrument of foreign policy, but it’s always had consequences for the government or kawanatanga of the country, and hence interpretations have evolved accordingly. For example, not long after it was signed, some people (Māori and Pākeha) questioned Article 2’s principle of Crown pre-emption of land sales, as it was standing in the way of their plans.

The phrase “principles of the Treaty of Waitangi” first appeared in statute in the Treaty of Waitangi Act 1975. It reappeared in the State-Owned Enterprises Act 1986 and elsewhere. But parliament didn’t define or clarify those principles.

The Court of Appeal in 1987 inquired thoughtfully into what “the principles” were, and introduced the notion of “partnership”. “The Treaty signified a partnership between races”, as Cooke P. worded it at that time. He went on to describe “the Crown” as a partner that acts “towards the Maori partner with the utmost good faith”. He described Crown obligations such as “active protection of Maori people in the use of their lands and waters to the fullest extent practicable”. And there must also be a right of “redress” for past breaches. “For their part the Maori people have undertaken a duty of loyalty to the Queen, full acceptance of her Government through her responsible Ministers, and reasonable co-operation”. “The principles of the Treaty do not authorise unreasonable restrictions on the right of a duly elected Government to follow its chosen policy”. The learned judges’ opinions weren’t “law” as such, but the principles they outlined were taken as authoritative, and jurisprudence has evolved further since then.

Around that time, the courts were also beginning to recognise indigenous customary rights that pre-dated the Treaty and that should always have been protected by it. Those developments in the 1980s overcame an 1877 judicial opinion that had described the Treaty as a “nullity” in the eyes of the law.

The Treaty’s incorporation into domestic law and administration has come a long way in the last 40 years, and it’s often argued that the principles of the Treaty are now quite clearly understood and shouldn’t be tampered with.

Can parliament change the constitution?

Yes it can, and it does. New Zealand has no entrenched written constitution, but it’s held together by strong conventions and by politicians’ fear of the next election. Parliaments have passed statutes that give effect to constitutional reforms, without even a referendum – for example, the Statute of Westminster Adoption Act 1947, the Constitution Act 1986 and the NZ Bill of Rights Act 1990. Most Kiwis didn’t even notice these constitutional changes happening, which shows how trusting they can be.

It’s becoming more the norm, however, for important constitutional developments or reforms to be put to a referendum. Examples are the decisive MMP referendum of 1993 and two failed referendums about extending the term of parliament to four years. The term of parliament can legally be changed by either a 75% majority in the House or by a simple majority in a referendum, but I doubt that politicians would use the former method for fear of a backlash.

Although one may oppose the present Treaty Bill, it’s not “treasonous”, as claimed by Te Pāti Māori, for parliament to debate it. Three News didn’t show you the moment when the Speaker put a stop to TPM’s points of order.

Legislation affecting the Treaty has gained Royal Assent in the past, and the King doesn’t have to be consulted in advance – or at all. If he’d really wanted to be consulted he could have dropped in during his recent tour downunder, instead of skipping NZ altogether on grounds of illness. Or did he throw a sickie just to avoid a nasty argument in one of his branch offices?

The Bill’s introduction doesn’t appear to meet the standard of “utmost good faith” in terms of the partnership principle. But good faith is a two-way street, and false accusations of “treason” don’t meet that standard either.

New Zealanders will be subjected to intense pressures to think one thing or another. Media coverage is often biased on this topic. Factually incorrect claims have been quoted in the media without question, while others have been rigorously criticised. I’d invite readers instead to make up their own minds.

Parliament’s decisions affect us, so we can make our views known. People will be able to make submissions to the select committee.