David Seymour’s Treaty principles released, with major warnings from officials
Wednesday, 11 September 2024
Cabinet has agreed on what the Treaty Principles Bill should say, but its proposed principles could cause social division and constitutional uncertainty - according to official advice.
The bill has caused massive debate already, after National leader Christopher Luxon agreed with ACT leader David Seymour to support it through to first reading in Parliament. That vote would trigger a six-month public inquiry, by way of select committee, into the principles of the Treaty of Waitangi.
But Luxon said the National Party would then bin the bill, rejecting it before it became law.
On Wednesday, Seymour released the next steps - agreed by Cabinet - and the advice it received when it discussed the Treaty Principles Bill on Monday. That advice warned ministers that progressing with the bill, as it was proposed, risked causing significant social harm and constitutional uncertainty for the nation.
The breakdown
The papers revealed that Cabinet’s proposed Treaty Principles were different from what the ACT Party had campaigned on. The new principles were:
- Civil Government – the Government of New Zealand has full power to govern, and Parliament has full power to make laws. They do so in the best interests of everyone, and in accordance with the rule of law and the maintenance of a free and democratic society.
Rights of Hapū and Iwi Māori – The Crown recognises the rights that hapū and iwi had when they signed the Treaty/te Tiriti. The Crown will respect and protect those rights. Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreement with the Crown.
Right to Equality – Everyone is equal before the law and is entitled to the equal protection and equal benefit of the law without discrimination. Everyone is entitled to the equal enjoyment of the same fundamental human rights without discrimination.
Those principles would form the basis for the Treaty Principles Bill, which was expected to be introduced to the House in November.
Following its introduction, the bill will undergo a full select committee process. That is due to last six months.
The Cabinet paper said the committee was expected to report back mid-May, 2025.
That would mean the Treaty debate would go right through to Waitangi Day next year, after dominating much of the debate earlier this year at Waitangi.
The arguments
Officials warned the Government that the bill “calls into question the very purpose of the Treaty and its status in our constitutional arrangements”.
And officials have warned that the bill could be detrimental for Māori and social cohesion.
“[It] could generate further division posing a threat to social cohesion. The Tribunal concluded that Māori will suffer the impacts of division and social disorder, bearing the brunt of blame for it,” they said.
Fundamentally, the advice said the Government’s proposed Treaty principles were “inconsistent with the Treaty”.
By doing so, it warned it risked introducing “more uncertainty into our constitutional arrangements”.
It said the principles of Te Tiriti, as they stood today, had been created through years of jurisprudence and debate. It said not having those principles listed in legislation allowed for them to evolve with the nation.
“Although there is no exhaustive list of principles, there is a degree of certainty about what the principles are and how they operate,” the regulatory impact statement, from the Ministry of Justice, said.
It said there was a strong argument to have further debate about New Zealand’s constitutionalist framework, but said the bill was unlikely to assist in that larger debate.
It said iwi and Māori had already shown deep concern about the proposal, evident through the scathing Waitangi Tribunal report about the proposed bill. It said the Government’s principals wrongly suggested that the rights of Māori were dependent on the the Crown granting those rights.
“Restricting the rights of hapū and iwi to those specified in legislation, or agreement with the Crown, implies that tino rangatiratanga is derived from kāwanatanga,” the officials said.
Tino rangatiratanga is commonly understood as chiefly autonomy, while kāwanatanga is parliamentary governance. Te Tiriti allows for both, within their own jurisdictions.
Who said what
Seymour said Parliament should legislate the Treaty principles, as he disagreed with how the courts interpreted them.
“Either Parliament defines them, or the courts will continue to venture into an area of political and constitutional importance,” he said.
Oppossition parties have urged the Government to drop the bill, given Luxon and NZ First have already ruled out supporting it beyond first reading.