A guide to making a submission on the Treaty Principles Bill

David Seymour’s dog whistle Principles of Treaty of Waitangi Bill has now been introduced and has been referred to the Justice Select Committee for the consideration of submissions.

The right will no doubt be rallying their supporters making sure they put submissions in. They will hope to persuade wavering Nats to change their minds.

Hobsons Pledge has set up a website accusing Christopher Luxon of being a scaredy cat. The site is pretty lame but no doubt will cause lots of submissions to be made.

And it is important for all good progressives to do the same. So get drafting and make sure you lodge your submission before the closing date of Januay 7, 2025.

Generic submissions do not have the same effect as a personally written submission. They tend to get lumped together and their effect is lessened.

Your submission does not need to be long. Sometimes the best submissions are succinct and to the point. And if you want to appear before the Select Committee mention this at the top of your submission.

It is best to break your submission into parts. Here is how I suggest you do this:

1. Introduction
2. Process
3. Article one
4. Article two
5. Article three
6. Conclusion

Introduction

First off introduce yourself. If you whakapapa Māori then give your background. If you align with Tangata Tiriti then say so. And if you have expertise, especially in history or law, then refer to this.

You could then talk about how the Treaty is the founding document of our democratic system and that it provides the basis for Parliamentary rule in the country.

Process

In terms of the process you could describe how appalling the current process has been.

When you are making changes to the country’s founding document you need to do it carefully and systematically and seek to achieve a consensus. As the treaty involves a pact between the Crown and Māori good faith requirements make it essential that the Crown sits down with Iwi to discuss the current situation, the issues and what may be the best way to progress resolution of any issues. After all it is an agreement. One party should not unilaterally change the terms of the deal.

You could quote passages from the Waitangi Tribunal whose decisions on the Bill should be compulsory reading.

Here are a few quotes from the first Judgment.

• “[T]he Crown agreed to pursue the policy without any engagement or discussion with Māori”.
• The bill is “a solution to a problem that does not exist”.
• “[T]here is no policy imperative that justifies it”.
• “[I]t is ‘novel’ in its Treaty interpretations”.
• The bill is “fashioned upon a disingenuous historical narrative”.
• The Bill’s “policy rationales are unsustainable”.

And here are some comments from the second judgment:

• “… if this Bill were to be enacted, it would be the worst, most comprehensive breach of the Treaty / te Tiriti in modern times. If the Bill remained on the statute book for a considerable time or was never repealed, it could mean the end of the Treaty / te Tiriti.”
• “The Crown’s process to develop the Bill has deliberately excluded any consultation with the Māori Treaty / te Tiriti partner.”
• “The Cabinet paper rejected the duty to consult Māori as a ‘novel reading of the Treaty’ by the courts and the public service. The Cabinet paper also rejected the ‘partnership interpretation’ of the Treaty / te Tiriti. Thus, due to unnecessarily truncated timeframes and the Crown’s rejection of the Treaty / te Tiriti partnership, Māori have been excluded altogether from this Crown rewrite of the principles.”
• “[T]there are two parties to the Treaty / te Tiriti, and the grant of kāwanatanga in article 1 is limited by the Crown guarantee of tino rangatiratanga in article 2.”
• “We do not accept that the Crown’s duty to consult Māori is a ‘novel reading of the Treaty’; it would fly in the face of almost 40 years of jurisprudence and previous Crown acceptance of this duty.”
• “[T]the Crown’s process to develop the Bill breached the principle of partnership, the Crown’s good faith obligations, and the Crown’s duty to actively protect Māori rights and interests.”
• This exclusion of Māori from any say in a process to abrogate their fundamental rights is extremely prejudicial. The impacts will not fade for a long time even if the Bill does not proceed beyond the select committee. Any trust or goodwill earned by Treaty settlements is under threat. The Māori–Crown relationship is being damaged, as officials have repeatedly advised.”

You may also want to mention the 40 Kings Counsel who wrote to the Government urging it to not continue with the bill or the estimated

As well as this there are some conservative heavyweights who have condemned the bill.

Like Jenny Shipley:

The voice of Māori, that reminds us that this was an agreement, a contract – and you do not rip up a contract and then just say, ‘Well, I’m happy to rewrite it on my terms, but you don’t count’.

I would raise my voice. I’m proud that the National Party has said they will not be supporting this, because you cannot speak out of both sides of your mouth.

And I think any voice that’s raised, and there are many people – Pākehā and Māori who are not necessarily on this hīkoi – who believe that a relationship is something you keep working at. You don’t just throw it in the bin and then try and rewrite it as it suits you.

And Chris Finlayson:

I think David’s got to understand that while he may want a nice, rarefied, intellectual seminar on the principles of the Treaty, it’s a lot more than that.

“It goes to the heart of what tangata whenua aspire to and so on and it can’t be seen as a mere debate. It’s a lot more than that.”

“We were on such a good path in a bipartisan way, over many years we’ve been working toward trying to undo the burdens of the past so that we could move to the future together as one, and a lot of that’s being undone now. It’s most unfortunate.”

And Christopher Luxon:

“You do not go negate, with a single stroke of a pen, 184 years of debate and discussion, with a bill that I think is very simplistic.”

And even the goddamn Regulatory Impact Assessment prepared by the best brains in the Civil Service which said this about the rushed nature of the introduction of the Bill:

The lack of consultation with Māori on policy development is likely to leave Māori feeling alienated and excluded from meaningful participation in the direction of Aotearoa New Zealand’s constitutional arrangements.

Article one

This says:

Ko nga Rangatira o te wakaminenga me nga Rangatira katoa hoki ki hai i uri ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu – te Kawanatanga katoa o o ratou wenua.

Loosely the Māori Chiefs ceded kawanatanga to the Crown which is essentially governance not sovereignty. Just remember that at the time there were an estimated 80,000 Māori in Aotearoa and only 2,000 Pakeha. Do you really think that Māori would have willingly ceded sovereignty to the Crown?

This is the finding of the Waitangi Tribunal which in 2014 concluded “the rangatira who signed te Tiriti did not cede their sovereignty. That is, they did not cede their authority to make and enforce law over their people or their territories. Rather, they agreed to share power and authority with the Governor. They agreed to a relationship: one in which they and Hobson were to be equal – equal while having different roles and different spheres of influence. In essence, rangatira retained their authority over their hapū and territories, while Hobson was given authority to control Pākehā.”

Seymour’s bill would replace article 1 with the following principle:

The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws … in the best interests of everyone; and … in accordance with the rule of law and the maintenance of a free and democratic society.

The result would be the obliteration of rights to Māori reserved by article 1. As the Waitangi Tribunal has commented:

Principle 1 is a statement of a new principle that bears no relation to article 1, overstates the kāwanatanga of the Crown, and ignores the two spheres of Crown and Māori authority that the Treaty / te Tiriti established, where overlaps must be resolved by good faith cooperation between the partners.

Article Two

This states:

Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu – ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia ko nga Rangatira o te wakaminenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o era wahi wenua e pai ai te tangata nona te wenua – ki te ritenga o te utu e wakaritea ai e ratou ko te kai hoko e meatia nei e te Kuini hei kai hoko mona.”

This preserves to Māori tino rangatiratanga or full control over their lands and estates and forests and fisheries and other things of importance to them while creating rights of preemption for the Crown.

This underlines the limited devolution of power contained in Article One. If Māori had intended to cede sovereignty then that article would have referred to “tino rangatiratanga” and not to “kawanatanga”.

Seymour wants to replace this article with the following provision:

(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.

Basically all treaty rights that have not been the subject of the settlement of a claim would be cancelled. Even pending applications to the Waitangi Tribunal would conceivably be affected.

As stated in the Regulatory Impact Statement:

This option is inconsistent with the Treaty/te Tiriti. It does not accurately reflect Article 2, which affirms the continuing exercise of tino rangatiratanga. 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 Tribunal made a similar statement in their report when they referenced expert evidence that stated rangatiratanga was not something “the Crown has the power to bestow”. For the Crown to assert that “overstates the kāwanatanga powers of the Crown”. It reduces indigenous rights to a set of ordinary rights that could be exercised by any group of citizens.

It is bizarre that a party that was formed to respect and protect private property rights should be so willing to destroy those rights just because they are owned by Māori.

Article Three

This states:

Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini – Ka tiakina e te Kuini o Ingarani nga tangata Māori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani.

This grants to all Māori rights as British Subjects.

This is what Seymour wants it to say:

(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.

Seymour’s principle essentially reasserts rights that already exist under the New Zealand Bill of Rights Act 1990 or the Human Rights Act 1993. My view is that it is essentially a smoke screen. Who could possibly argue that everyone should not have equal rights. Given that the effect of Article three is essentially spent I can’t think of any adverse consequence of this particular proposal.

Conclusion

It is important to have a strong conclusion. Tell the Select Committee that the Bill has to be voted down.

You could comment that a discussion about the importance and the future of the treaty is important. But the way that Seymour has done this is disrespectful, unilateral and of itself is a breach of the treaty. The treaty relationship is long standing, fundamental to our country and based on good faith between the parties. Proceeding with Seymour’s bill is an anathema to all of this.

Good luck with this. And remember the right will be clogging up MPs inboxes with submissions urging the bill to proceed. We need to balance this up. Otherwise National may get cold feet. And this would be disastrous for our country.

Reprinted from gregpresland.com.