Explained: The Treaty Principles Bill
Thursday, 14 November 2024
What is it and why is it causing such a massive backlash? Will it re-write the actual Treaty of Waitangi? Erase Māori rights? Or is it a storm in a teacup? Explainer Editor Lloyd Burr breaks it down.
Angst has been building for more than a year, it’s divided the Government, Crown lawyers are spooked, and there’s a mammoth hīkoi to Parliament all because of the ACT Party’s Treaty Principles Bill.
So what exactly is it, what would it do, and why is it causing such an uproar?
Does the bill rewrite the Treaty of Waitangi?
No, not literally. Nothing can re-write the Treaty of Waitangi. It’s one of our key founding documents, it’s an agreement between around 540 Māori chiefs and the British Crown, and its 9 rat-nibbled pages are under lock and key in a special storage unit at the National Library in Wellington.
But it would change how the Treaty is interpreted. There is a problem when it comes to interpretation because the Treaty is in both English and Te Reo Māori. Because Te Reo was an oral language and translating it was in its infancy in 1840, the two versions of the Treaty say different things.
The English version essentially says:
Article 1: Māori cede the sovereignty of New Zealand to Britain
Article 2: Māori give the Crown an exclusive right to buy lands they wish to sell, and in return are guaranteed exclusive and undisturbed possession of their lands, forests, fisheries and other properties.
Article 3: Māori are given the rights and privileges of British subjects.
The points of difference in the Te Reo Māori version were in articles 1 and 2. Article 3 was accurate.
“Sovereignty” was translated as “kāwanatanga” which means ‘governance’ and many chiefs believed they were ceding the government of the country but maintaining the rights to manage their affairs.
“Undisturbed possession of properties” was translated as “tino rangatiratanga” of “taonga katoa”. This means ‘chieftainship/full authority’ over ‘all treasured things’ (which aren’t always tangible).
Does the bill re-interpret the Treaty of Waitangi?
Yes. Because there are differing interpretations of the Treaty, the bill aims to create an interpretation - or principles - that everyone agrees upon. This is what the bill proposes:
Principle 1: The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws: (a) in the best interests of everyone; and (b) in accordance with the rule of law and the maintenance of a free and democratic society.
Principle 2: (1) The Crown recognises and will respect and protect the rights that hapū and iwi Māori had under the Treaty of Waitangi/te Tiriti o Waitangi at the time they signed it. (2) However, if those rights differ from the rights of everyone, subclause (1) applies only if those rights are agreed in the settlement of a historical treaty claim under the Treaty of Waitangi Act 1975.
Principle 3: (1) Everyone is equal before the law. (2) Everyone is entitled, without discrimination, to (a) the equal protection and equal benefit of the law; and (b) the equal enjoyment of the same fundamental human rights.
The full text is here.
Wait, aren’t there already Treaty Principles?
Different politicians, lawyers, tribunals, and courts have used “Treaty principles” for decades. This started in 1975 when the Waitangi Tribunal was established allowing Māori to bring claims against the Crown when it was being “inconsistent with the principles of the Treaty of Waitangi”. This was due to the many breaches of the Treaty by the Crown since it was signed. But these principles weren’t listed so it was up to the Tribunal to interpret what they were, based on the spirit of the Treaty.
New laws created by numerous governments have alluded to the Treaty principles as well. Members of the judiciary have to interpret what the principles are.
In 1989, David Lange’s Labour government developed Treaty principles:
The government has the right to govern and make laws.
Iwi have the right to organise as iwi, and under the law, control their resources as their own.
All New Zealanders are equal before the law.
Both the government and iwi are obliged to accord each other reasonable cooperation on major issues of common concern.
The government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.
Lange was accused by some of trying to re-write the Treaty.
In 2006, Winston Peters’ New Zealand First Party introduced the ‘Principles of the Treaty of Waitangi Deletion Bill’ but it was defeated by Parliament (Current NZF MP Shane Jones was a Labour MP at the time and vehemently opposed it). Interestingly, the party still wants to do this and it was promised by National in its 2023 Coalition Agreement.
What’s Seymour’s rationale for this bill?
Equal rights. He believes the current system has led to a disparity in legal and political rights of Māori and non-Māori. “This has led to co-governance arrangements and even racial quotas within public institutions,” his bill-specific website says.
“Creative interpretations of the ‘principles’ of the Treaty have been used to justify offering different access to taxpayer-funded services, guaranteed positions on government boards, and even a separate healthcare authority, all based on people’s ancestry,” it says.
Seymour says there are two options: Parliament can define the principles, or the courts can keep trying to define them, allowing them to change over time.
“The modern ‘partnership’ interpretation of the Treaty, which divides us into two groups with different rights based on ancestry, is an invention of the unelected judiciary and would not have passed any democratic process,” he says.
Seymour says he’s having this debate because ACT is the only party brave enough to do so.
What are the arguments against the bill?
In defining the Treaty principles, many argue Seymour is indeed redefining the Treaty itself and rewriting a contract long after it was signed. Ngāti Toa leader Helmut Modlik has been spearheading the debate against the bill and says it’s preposterous that one of the Treaty’s signatories - in Seymour representing the Crown - can try to unilaterally change it.
“Unwinding the path of truth and reconciliation that we’ve been on for four or five decades is not a direction of travel that anyone in the Māori community that I’ve met is interested in contemplating,” he told NBR.
There are concerns about the principles Seymour has devised too, with Ministry of Justice officials saying parts of them are inconsistent with the Treaty itself.
The Waitangi Tribunal says the proposed principles breached the existing principles of “partnership and reciprocity, active protection, good government, equity, redress, and the article 2 guarantee of rangatiratanga”. It also found them flawed, disingenuous, and that they distorted the Treaty itself.
“Māori would be particularly prejudiced by the extinguishment of tino rangatiratanga in a legal sense if the Bill were to be enacted,” its most recent finding states.
A group of 42 King’s Counsel lawyers have written to the Prime Minister, saying the bill will essentially rewrite the Treaty.
Other arguments are that the debate is divisive, dishonourable, and a distraction for the Government given it’s unlikely to pass the second reading.
Will it pass through Parliament?
It passed its first reading in Parliament on Thursday (after a protest haka and a suspended Parliament) because the National-ACT-NZ First coalition agreement required that. But at its second reading, it’s likely to be thrown in the bin. Here’s what the parties have said:
The National Party. Leader and Prime Minister Christopher Luxon says the bill is not helping get the country back on track. “You do not go and negate - with a single stroke of a pen - 184 years of debate and discussion with a bill that I think is very simplistic.”
The Labour Party. Leader Chris Hipkins says it’s “based on outdated and incorrect perspectives that do not reflect the spirit or words of the Treaty”. Its MP Willie Jackson says the bill “is a political stunt that prolongs discrimination against Māori” adding it will “give Maori rights and indigenous rights to everyone”.
The Green Party. Co-leader Chloe Swarbrick says: “Te Tiriti is foundational and enduring. Honouring Te Tiriti is the constitutional obligation of every Prime Minister.”
ACT. Leader David Seymour says: “We need to have this discussion. A lot of people don’t want to have it, a lot of people are scared to have it. But we need to have it.”
NZ First. De facto deputy leader Shane Jones says: “There are a range of New Zealanders who have confidence in David [Seymour] and his vision. It is not a vision that NZ First either will uphold or share.”
Te Pāti Māori. Co-leader Rawiri Waititi says: “The only people who can make changes in the agreement are the parties who signed it,' referring to Maori chiefs and the monarch of Britain. 'Tell me David Seymour, which one of those are you?”
Is everyone in New Zealand the same in the eyes of the law?
Should Māori be treated differently in the eyes of the law than non-Māori? This is the crux of Seymour’s reasoning - but is it as simple as he’s making it sound?
Generally speaking, this is inherently a political and philosophical debate based on how to justly run a society, while righting historical wrongs.
Centrist or centre-right politicians typically advocate for equality. That is, everyone gets the same opportunity to achieve.
Progressives typically advocate for equity in outcomes. Why is this different? Well, some argue that treating everyone the same isn't fair because some people start in disadvantaged positions.
The situation in New Zealand, given our history and make up, makes this debate much more profound.
In a piece a few years ago on Stuff, Dr Claire Charters, of the University of Auckland, put it this way: 'Māori became the minority in New Zealand, and there hasn’t been equality in terms of power-sharing and decision-making.'
National’s deputy leader Nicola Willis says the bill is a “crude way of dealing with a delicate topic” which essentially echoes her leader’s comments that it’s “too simplistic”. That ‘delicate topic’ refers to decades of institutional and inter-generational discrimination of Maori that has left them much worse off in nearly every social statistic that is measured.
The bill aims to provide equality but it seems to be missing something: equity.