If Seymour succeeds what happens to Ngāpuhi’s Treaty claim?

David Seymour is on a roll.

He keeps popping up in the media talking about how his Treay Principles Bill is a good thing and will not completely undermine the Treaty of Waitangi.

He has been interviewed on Radio New Zealand, after having previously turned down many many offers.

Last weekend he appeared on Q&A. It was superficially an impressive appearance. I have never seen someone so sure of themself assert with such confidence that what he was saying was correct even though when the blowtorch of historical and legal reality is applied he is clearly wrong.

And his proposed bill has all sorts of fish hooks and catches in it.

As an example what happens to Ngāpuhi’s claim? Along with other Northland Iwi its claim is not yet settled.

It has a great deal of history. In 2014 the Waitangi Tribunal concluded that the Northland tribes (“Te Raki hapū”) did not cede sovereignty. Instead they agree to a relationshp with the Crown’s Governor and to share authority.

In 2023 after considering the claim in more detail the Tribunal concluded that many egregious breaches of the treaty had occurred. It recommended:

The Crown make a formal apology to Te Raki hapū and iwi for its breaches of te iriti/the reaty and its mātāpono/principles for :

• Its overarching failure to recognise and respect the tino rangatiratanga of Te Raki hapū and iwi
• The imposition of an introduced legal system that overrode the tikanga of Te Raki Māori
• The Crown’s failure to address the legitimate concerns of gāpuhi leaders following the signing of te iriti, instead asserting its authority without adequate regard for their tino rangatiratanga which resulted in the outbreak of the Northern War
• The Crown’s egregious conduct during the Northern War
• The Crown’s imposition of policies and institutions that were designed to wrest control and ownership of land and resources from Te Raki Māori hapū and iwi, and which effected a rapid transfer of land into Crown and settler hands
• The Crown’s refusal to give effect to the iriti/reaty rights of e aki Māori within the political institutions and constitution of ew Zealand, or to recognise and support their paremata and komiti despite their sustained efforts in the second half of the nineteenth century to achieve recognition of and respect for those institutions in accordance with their tino rangatiratanga.

The Tribunal further recommended:

• All land owned by the Crown within the inquiry district be returned to Te Raki Māori ownership as redress for the Crown’s breaches of te iriti/the reaty and ngā mātāpono o te tiriti/the principles of the Treaty.
• The Crown provide substantial further compensation to Te Raki Māori to restore the economic base of the hapū, and as redress for the substantial economic losses they suffered as a result of the Crown’s breaches of te iriti/the reaty and ngā mātāpono o te iriti/the principles of the Treaty.
• The Crown enter discussions with e aki Māori to determine appropriate constitutional processes and institutions at national, iwi, and hapū levels to recognise, respect, and give effect to their Tiriti/Treaty rights Legislation, including settlement legislation, may be required if the claimants so wish.

As you can see the recommendations are significant.

One Ngapuhi elder has sought payment of $8 billion.

Negotiations concerning the treaty settlement have however become bogged down.

Andrew Little spent a great deal of effort trying to advance the settlement. But the problem appeared to be that the Crown wanted to deal with one entity and the Northland tribes including Ngāti Hine wanted norhing of the sort.

So what will happen to the claim if Seymour’s act is passed?

The Tribunal’s essential finding is that Article 2’s promise of Tino Rangatiratanga to Māori iwi including the Northland tribes was breached.

But Seymour’s bill would rewrite article two to state:

(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.”

Ngapuhi’s and Ngati Hine’s and other Nortland Iwi’s rights are clearly different to the rights of everyone.

On the face of it as Northland Iwi’s claims have not been settled the Crown would no longer have to recognise, respect or protect their rights. Some fancy lawyering would be required to avoid this result.

There is the saving in section 8 of the Bill that it does not apply to the Treaty of Waitangi Act 1975 “in relation to the settlement of a historical Treaty claim entered into after the commencement of this Act”.

But the provision would stop applications being made to the Courts for redress or recognition of a claimed right.

And this would place attention on recent efforts to stack the Tribunal with members who have a world view they approve of.

And how do you reconcile having one law for one purpose and a different law for another purpose.

This is why Seymour’s bill is so dangerous. Longstanding and well recognised grievances could be left without a remedy or at least effected. The Courts would have to apply a different law to the Waitangin Tribunal. And we could face the situation where some Iwi have had their grievances addressed but others will be left without any compensation simply because of timing.