Act Party leader David Seymour has introduced a bill to parliament aiming to create a new Act that would set out the principles of the Treaty of Waitangi in legislation, and require that those principles be used when interpreting legislation.
This has been perhaps the most controversial bill in modern New Zealand politics, drawing thousands into the streets of Wellington and other major cities for protests, as well as an unprecedented number of submissions during public consultation.
Te Tiriti o Waitangi, the Treaty of Waitangi, is widely considered to be New Zealand’s founding document, and it has had a rough history.
After the treaty’s signing in 1840, the Crown broke it many times, taking land and other resources that rightfully belonged to Māori as set out in the treaty.
There have also been issues due to mismatch between the English language and te reo Māori versions of the treaty, meaning the Māori chiefs who signed had a different understanding of what they were agreeing to than the signing representatives of Queen Victoria. One particular source of problems is the English word “sovereignty”, which did not have a direct Māori translation at the time.
The Treaty of Waitangi Act 1975 established that the treaty had principles, but did not explicitly define them. The Waitangi Tribunal, also established by this Act, was created with the intention of interpreting those principles, addressing treaty grievances and compensating iwi groups for transgressions by European settlers and the Crown.
The Principles of the Treaty of Waitangi Bill proposes to force government to make laws “in the interest of everyone”, and allows governments to disregard the rights of hapū and iwi Māori under the treaty if they are not in the interest of everyone.
The bill explicitly states “everyone is equal before the law”.
In Seymour’s submission in favour of his own bill, he said “The [way] courts and the Waitangi Tribunal have sought to define the principles of the Treaty is incompatible with freedom under the law, a free society, where each of us has equal rights.”
The three principles, as set out in the Bill, are:
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.
Rights of hapū and iwi Māori—the Crown recognises the rights that hapū and iwi had when they signed the Treaty/te Tiriti. 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 Treaty settlements.
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.
Who’s for it?
Several significant political entities and personalities have made oral and written submissions in favour of the bill.
The Act Party’s website says “The Treaty Principles Bill would restore the mana of our founding document by ensuring it delivers what it originally promised in 1840: nga tikanga katoa rite tahi – the same rights and duties for all New Zealanders.”
It says the bill will not change the treaty itself, but rather “continue the process of defining the Treaty principles, for the first time incorporating the voices of all people through a democratic Parliamentary process, instead of through the Tribunal or the courts”.
Hobson’s Pledge, a lobby group formed for the explicit purpose of opposing affirmative action for Māori, made a submission stating that it supported articulating what the principles of the treaty are. “That the New Zealand Parliament has never clearly legislated the principles is negligent. This Bill provides an opportunity to right this wrong, provide certainty, and provide the democratic legitimacy currently lacking.”
The submission goes on to emphasise the importance of equality of all people before the law. “Hobson’s Pledge notes with dismay an increasing trend for legal equality to be undermined in New Zealand, based on race, and believes strongly this must stop. The list of examples is lengthy, but includes: separate Māori seats in Parliament; Council seats based on race (Māori wards); the appointment of non-elected people to council committees because they are Māori; quota systems in universities based on race; scholarships based on race; government procurement decisions that take race into account; preferencing of Mātaurangi Māori when making research funding decisions; and so on.”
Media commentator and National Party pollster David Farrar submitted in favour of the bill, but proposed another method of achieving its aims. “While I personally like the proposed principles in this bill, I favour certainity over personal preference. I would challenge opponents of the current version of the biill to propose alternate wording for the principles, rather than have Parliament provide no guidance at all. [sic]
“I would much rather have a legislative definition of the Principles that I 75% agree with, than no legislative definition at all.”
Who’s against it?
Of the over 300,000 submissions on the bill, it is believed that the vast majority are against it.
Former Labour Party Minister Kiri Allan made a written and oral submission, and spoke to The New Zealand Herald about her stance that the bill is divisive and misrepresents history. “It’s eroded social cohesion; it’s eroded the fundamental trust between all of us as New Zealanders because you have political leadership driving a discussion that seeks to put wedges between people based on race.
“But Te Tiriti is not about race, Te Tiriti is about how each of us find a home here in Aotearoa. It weaves us together, but that’s not the political rhetoric that’s been driven by those that are the leaders and the architects of this bill.”
Te Pati Māori co-leader Debbie Ngawera-Packer penned an open letter speaking directly to Seymour. “The line you use, David, about equal rights is a compelling one. I understand what you mean by that – the idea that we should all be treated equally – and I agree with it in theory. In a perfect world. But in reality, we don’t all arrive at the new day and the new dawn, equally. Some arrive with baggage and trauma and lack of equity so damn heavy that it holds us back for generations. And to then wipe out Te Tiriti, to wipe out the reference to our sovereign, our chiefs, is effectively wiping out our ability to ever live equally. It is a betrayal.”
She said Seymour had underestimated the opposition New Zealanders would have to this bill, particularly the majority non-Māori cohort. “We’re not America – nobody likes to see the underdog being kicked here. I think you radically underestimated that there would be such empathy for indigenous people in this kaupapa.”
Prime Minister Christopher Luxon has openly and vocally opposed the bill, despite it being put forward as part of the National Party’s coalition with Act. “We [National] have a united view, which we just don’t think this is the right way forward… Treaty issues are complex, and I think it’s very simplistic with a stroke of a pen to believe that you can resolve 184-year debate and discussion.”
As part of the agreement, National voted as a bloc to get the bill past its first reading, but would not support it beyond that point. “Since we’ve entered the coalition agreement, we’ve talked about it openly as a caucus. We also believe very strongly it’s not something we’re supporting, and we know why we’re not supporting it.”
My cuppa tea
This bill was the reason I started this website. I missed the boat on writing about it in a useful way before submissions closed, but here we are.
Let’s talk first about the fundamental issue the bill aims to address: the lack of explicit definition of the principles of the treaty.
Vagary in the wording of the law is a deliberate feature of the New Zealand legal system. This can provide flexibility in certain circumstances, allowing judges (or in this case the tribunal) to interpret the law and take context into account when applying it in different circumstances.
This also allows the tribunal to apply the principles of the treaty in unforeseeable circumstances – a reasonable approach given that the Treaty of Waitangi will, in theory, exist forever.
But I have a lot of sympathy for the argument that the law should be clearly defined to avoid people being treated differently. Poor definition can lead to inconsistent enforcement of laws, disproportionately disadvantaging minorities.
David Farrar made some good points in his written submission, particularly when he wrote “If Parliament is to pass dozens of laws referring to the Principles, it should provide certainity [sic] on what it means in doing so.”
I think we should consider real-world precedent for deciding whether flexibility or rigid definition is the best approach for any particular law. The precedent does not seem to show much bias against Māori in the application of the Treaty of Waitangi Act. Quite the opposite – while the outcomes of tribunal actions are mixed, it has definitely made large strides to improve equity for Māori.
Does it disadvantage other minorities? That’s hard to say, but I think it’s fair to defer to comments made by minority groups representing Pacific youth, gender minorities, disabled people, as well as the Human Rights Commission and Amnesty International against the bill.
Overwhelmingly, other minorities have supported Māori in opposition to this bill. I just don’t think the Treaty of Waitangi is being used to oppress minorities.
But let’s say that the principles of the treaty do merit explicit definition. As I said, it’s an outcome I am open to. Are Act’s proposed three principles potential contenders?
The first proposed principle states “the Government of New Zealand has full power to govern, and Parliament has full power to make laws”. This is the status quo, and cannot be overridden by the Treaty. The above sentence is a waste of paper. The principle continues: “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.”
I’m absolutely on board with laws being made in accordance with the maintenance of a free and democratic society. The rule of law is also an admirable pursuit – this is generally speaking a principle that the law applies to everyone equally. It is a basis of human rights, our independent judicial system, and free speech, among other things that are important to New Zealand society.
The part about “the best interests of everyone” is also, I believe, broadly a good thing. I say this because I believe that equity is in the best interests of everyone. Helping disadvantaged people creates a safer and more enjoyable society, and even saves money in the long run. I do understand, though, that some people consider this wording to be the thin end of the wedge for pushing a libertarian stance of equality, rather than equity, through the legislative door.
The second proposed principle recognises the rights of hapū and iwi Māori under the treaty at the time it was signed, and acknowledges that those rights differ from the rights of everyone else, but only when they are specified in treaty settlements. This, I have a problem with. It is limiting the recognition of hapū and iwi Māori rights to specific circumstances regarding settlements. I believe, however, that the spirit and explicit intent of the treaty was that it would be honoured in the ruling of our country. When you sign a contract or a treaty, it infers special rights on the signatories, and I don’t believe that is a contravention of anyone’s human rights. You can’t go back later and wipe it out.
The treaty is not a legal document that set out grievances for reparation. It is an agreement between Māori signatories and the Crown on how our country would be created and ruled.
The third proposed principal states that “everyone is equal before the law”, and “Everyone is entitled to the equal enjoyment of the same fundamental human rights without discrimination.”
So this is where it gets particularly messy. Given his stated intentions, it is clear that Seymour wants to use this as the basis for removing what he sees as unfair advantages given to Māori in the name of the Treaty of Waitangi.
Let me be clear: on balance, there is no unfair advantage to being Māori. Māori, on average, have less wealth, worse health, and lower education outcomes than Pākehā. Any initiatives that contribute to levelling this playing field are not an unfair advantage; they are a basic requirement for treating Māori like any other New Zealand citizen, after generations of deliberate oppression. These initiatives include programmes that reserve spaces for Māori in tertiary education, healthcare initiatives, and providing funding to Māori-centric research.
The inclusion of Māori electorate seats and Māori wards helps appoint a small number of Māori to positions of power that might be difficult to reach given they are overwhelmingly outnumbered by Pākehā voters. This allows Māori voices in the halls of power, providing insight, supervision and legislative strength in the very places they are needed to ensure the principles of the treaty are being applied. When the day comes that Māori are enjoying similar societal outcomes to other groups, and are well represented in all levels of government, I’ll gladly advocate for disestablishing these seats.
I agree that everyone should be equal before the law and entitled to the equal enjoyment of the same fundamental human rights without discrimination. I also think our current laws and principles already aim to provide this. The way in which they fail is not the way Seymour envisions; rather the failures are that Māori are treated worse by our legal system and face discrimination throughout society.
The key takeaway is that the bill aims to limit the application of the Treaty of Waitangi so it only applies settlements regarding breaches of Māori rights that existed at the time the treaty was signed. It aims to eliminate the role the treaty will play in the creation of new law and policy.
Interpreted in its best light, the treaty is a tool of equity. David Seymour is pushing a libertarian ideology that often sounds like it has merit, especially when he throws around words like “equality” and “fairness” – these can be hard to argue with. I agree with Debbie Ngawera-Packer’s take on this.
The real world is messy. Māori are disadvantaged on average compared to non-Māori. If interpretations of the treaty and the 1975 Act can help provide a more even platform, that can only contribute to a better and truly fairer society.
I fundamentally disagree with Act’s philosophy that equity is bad. Some people are disadvantaged through no fault of their own. And more evidence is emerging that affirmative action actually improves the collective skillsets and outcomes for organisations with increased diversity. I can’t see any well-supported reason to bin equity – just lofty and meaningless philosophy.
I made a written submission on this bill, calling it a national embarrassment, and I stand by that.
I do keep coming back, though to something David Farrar wrote: “I would challenge opponents of the current version of the biill [sic] to propose alternate wording for the principles, rather than have Parliament provide no guidance at all.”
I think this is worth exploring, especially since we’ve already opened this can of treaty worms. In theory, we could have a discussion about how the principles should be defined, keeping open the option of leaving them as-is, then put the refined bill to a conscience vote in a form that might actually pass into law with cross-party or at least coalition support. As interesting as this idea is, I don’t think it can really happen. This bill is poison, and no member of parliament wants to touch it in good faith lest that poison leech through their skin.
Ultimately, it doesn’t matter. The Principles of the Treaty of Waitangi Bill is going nowhere.
It is worth noting, though, that it is part of a package of proposed legislation from the Act Party that aims to define how laws are made and interpreted, including the Regulatory Standards Bill, which has not yet been introduced to parliament but is also part of the coalition agreement with National. More on that another day.