24 September 2024

Proposed Treaty Principles Bill

Background

When the Treaty of Waitangi Act 1975 was enacted, it affirmed the existence of certain Treaty principles derived from Te Tiriti o Waitangi/the Treaty of Waitangi.  These include the core principles of active protection and partnership.  To date, it has been the role of the Waitangi Tribunal to determine claims through the practical application of these principles.  The Coalition Government now seeks to define the Treaty principles through legislation and has taken steps to progress the introduction of the proposed Treaty Principles Bill, which has been approved by Cabinet.

Cabinet has asserted that the intention of the proposed Bill is to create certainty about what the Treaty principles are and how they apply in New Zealand.  However, the Treaty principles have been dealt with before the Waitangi Tribunal for over 35 years, already giving clarity and certainty about what the existing principles are and how they operate.

Waitangi Tribunal Report

On 16 August 2024 – prior to the specific wording of the proposed “Treaty principles” being published – the Waitangi Tribunal issued an urgent report into the proposed Treaty principles Bill and Treaty clause review policies.  The Tribunal found that the Crown’s policies and actions have breached the Treaty principles of partnership and reciprocity, active protection, good government, equity, redress, and the Article 2 guarantee of tino rangatiratanga.  The Crown failed to engage with Māori, and the proposed Bill:

• lacked a policy imperative justifying its development;
• was based on flawed policy rationales;
• was ‘novel’ in its Treaty interpretations;
• was fashioned on a disingenuous historical narrative; and
• distorted the text of te Tiriti o Waitangi.

Given the findings of significant breaches by the Crown summarised above, the Tribunal recommended that:

• The Treaty Principles Bill policy should be abandoned.
• The Crown should constitute a Cabinet Māori-Crown relations committee that has oversight of the Crown’s Treaty/te Tiriti policies.
• The Treaty clause review policy be put on hold while it is re-conceptualised through collaboration and co-design engagement with Māori.
• The Crown consider a process in partnership with Māori to undo the damage to the Māori–Crown relationship and restore confidence in the honour of the Crown.

The recommendations are made in light of the significant effects that the introduction of such a Bill is likely to have on Māori.  If the Crown proceeds with the introduction and progression of the Bill through the House, further significant damage will be caused to the Māori-Crown relationship and the Treaty partnership.  The Tribunal has also noted significant impacts that the policy will have on the social cohesion of Aotearoa as well as significant practical issues that will be created for the future Treaty settlements.

What are the proposed principles

In place of the existing well-established Treaty principles – and seemingly in place of the wording of te Tiriti/the Treaty itself – Cabinet has agreed that the following principles be included in the Bill:

1. 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.
2. Rights of Hapū and Iwi Māori: The Crown recognises the rights that hapū and iwi had when they signed the Treaty. 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.
3. 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.

While the Waitangi Tribunal has not yet commented on the above text, comments from the Tribunal on its origins and its distortion of te Tiriti demonstrate clear flaws with what is proposed.  From a legal perspective, this is of huge concern as it has the potential to rewrite historical agreements and arrangements through the misinterpretation of a legally binding treaty.

The proposed Bill is currently being drafted and is set to be introduced to Parliament by the end of 2024.  Submissions can be made to Select Committee once the Bill has been introduced.

If you have any questions about the proposed Treaty Principles Bill or any te Tiriti-based kaupapa, you can contact Senior Solicitor, Carmen Mataira, or Law Clerk, Hakaraia Richards-Coxhead who are both part of our Kahurangi Team.