The Treaty of Waitangi Principles Bill gets slammed

The Bill has been introduced.

As I said recently even the introduction of the bill has been controversial. It was brought forward and introduced earlier for one or more of three reasons:

1. To muck up a National hikoi due to reach Wellington on the original day the bill was to be introduced.
2. Because Christopher Luxon will be overseas on the day of the first reading of the Bill.
3. To stifle a second Waitangi Tribunal report on the bill. Under the Treaty of Waitangi Act 1975 the Tribunal cannot normally report on a bill once it has been introduced and its latest report had to be rushed out.

Whatever the reason the change is deeply disrespectful to Māori .

David Seymour claims that controversy about the change is much ado about nothing. Of course he would say that. But everything about this bill appears to be as aggressive as possible so there being an innocent reason for the change does not wash.

The Waitangi Report has not held back as shown by this scathing passage from its latest report about the bill.

From the report:

We found that 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 If the Bill remained on the statute book for a considerable time or was never repealed, it could mean the end of the Treaty / te Tiriti.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. This has been the case even though 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. We found that 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.

To all of those who claim there is no certainty about the meaning of the Treaty can I invite them to read the report. It contains an excellent summary of what the treaty provisions mean. Claims that we need the Bill because there is confusion about what the treate means is disingenuous. The only confusion I can see is amongst those who wish to change the treaty into a historical relic.

These are the individual principles contained in the Bill:

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 principles do not vary too much from the original leaked principles with the exception of principle 2 which appears to be even more restrictive. Maori will only enjoy treaty rights if they have already been established by a treaty settlement.

And principle 3 only reflects current human rights. It adds nothing to existing jurisprudence.

This is a summary of what the Waitangi Tribunal says about the individual principles:

• “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”.
• “The Crown and claimant evidence agreed that Principle 2 does not reflect the text or meaning of article 2, and would instead seriously damage tino rangatiratanga. It would abrogate rights of Māori that article 2 guaranteed and protected, and revoke the promises and guarantees the Queen made to Māori in 1840. It would trample the mana of the Treaty / te Tiriti and of all Māori underfoot.”
• “Principle 3, the ‘right to equality’, bears no resemblance to the texts and meaning of article 3. The Crown’s promises were made to Māori, not ‘everyone’. The right to equality was important but was only one of the rights promised to Māori as the rights and privileges of British subjects. The Queen’s protection, from which the principle of active protection is partly derived, has been left out of Principle 3.”

If the Government was prepared to start to improve iwi relationships then it would get Parliament to resolve to refer the matter to the Waitangi Tribunal for a formal report back. The Tribunal could then say to Parliament directly whether in its opinion the bill is contrary to the principles of the Treaty although its views are pretty clear.

But given all that has happened so far there is no chance of this happening.

National and NZ First are going to stand to one side as Act attempts to ignite a disgraceful race debate for political gain. Shame on them all.