The dubious politics of the Treaty Principles Bill

Opinion: The controversial Treaty Principles Bill proposed by Act Party leader David Seymour has been criticised by many, but little light has been cast so far on the real threat it poses to New Zealand’s democracy and society.
Seymour claims his bill is all about democracy. He puts forth the argument that New Zealanders as a whole have never been democratically consulted on the Treaty principles. This view overlooks some important understandings of what democracy is and how our Parliament, Government and legal system operate.
In the unlikely event that his Treaty Principles Bill passes, it would create great legal uncertainty and serious constitutional issues, as well as adversely impacting on the rights of the indigenous Māori people and this country’s race relations. It could go so far as to cause civil unrest and become an international embarrassment – whether it passes or not.
Earlier this month, Seymour released some official documents summarising the government’s policy on the Treaty Principles Bill. The first is a media release, announcing the next agreed steps, then a Cabinet paper containing the policy features of the proposal, as well as the Cabinet minutes on the decisions for the Cabinet paper. 
Anyone wanting to understand what the government is up to here needs to study these documents, although they conceal in some ways more than they reveal. The release is commendable, however, since it adds a welcome element of transparency to a novel set of planned parliamentary processes. It allows judgments to be made on the weaknesses of the approach chosen.
The media release says Cabinet has agreed the next steps for the bill which will now be drafted by Parliamentary Counsel and considered by Cabinet before it is introduced to Parliament later this year.
The bill was part of the coalition agreement between Act and National, which promised to introduce a bill based on the existing Act policy and support it to a select committee. The policy seeks to define the Treaty of Waitangi principles through an Act of Parliament, rather than allowing the interpretation to come through the Waitangi Tribunal or the courts.
The separation of powers is an important safeguard in a democracy. Power is divided between the branches of government – the Executive, the Parliament, and the Judiciary.  Seymour is attempting to capture Parliament as the supreme law maker in our polity and bend it to his eccentric view of the Treaty. This is ministerial over-reach of a new kind. 
It is agreed that “in accordance with agreed coalition processes, the coalition parties will be free to differentiate publicly regarding the Treaty Principles Bill, including progressing it in the House beyond the first reading.”
There is some uncertainty about what that could mean. However, both National and New Zealand First have said publicly that they will not support the bill beyond first reading.
For this reason, the bill may be regarded as a political stunt, designed to stir up feeling against the Treaty.  In no way does it qualify as a serious legislative proposal.
How it could have been agreed to have select committee hearings on such a measure when only Act will vote for it defies explanation. This should have been an ACT party member’s bill – a non-government bill promoted by a member of Parliament who is not a minister. To cloak it in the respectability of a government bill is unfortunate.
If the bill cannot pass, why should it be introduced? It seems aimed at generating a policy for Act to run on at the next general election in 2026, hoping that by then it may have secured support. Seymour will be Deputy Prime Minister in the run up to that election. Indeed, support might increase, promoted by well-funded right-wing nationalist interests. Recall the prototype of this policy on the Treaty promoted by Dr Don Brash in 2005, when he was Leader of the Opposition.
Seymour will report back to Cabinet in November 2024 to seek decisions on conducting a referendum for the bill. This again is puzzling, since the bill is not expected to pass. The possibility of a referendum will be even more divisive than the bill itself. It would also be costly. Clearly Mr Seymour wants to have the next Parliament dealing with the same issue all over again. How did the referendum provision make it into the Cabinet paper?
The Prime Minister says this bill is a result of the MMP electoral system. That is true in one sense, as this is a government elected under MMP. But MMP has never before produced a policy posture like this one. ACT has just 11 MPs in the House of Representatives out of a total of 123. ACT received 8.64 percentage of the votes   in the 2023 general election. It can hardly be said that ACT secured a mandate from the voters for such a policy.
MMP does not dictate the policy as the Prime Minister argued. The National Party agreed to it. What we have is a new and novel development in MMP to ensure the House behaves like a First-Past-the- Post government, with a disciplined majority. It seems so far there can never be any retreat from what the coalition agreement contains, whatever the public thinks. 
We have seen a legislative frenzy of unsound and divisive measures unsupported by evidence during the life of this government. But this proposed bill is egregious. Such an extreme policy has little approval in the electorate at large. And the Government has no mandate for it. Yet the programme persists – to what end?
The bill will be designed to assist with the interpretation of any law enactment where Treaty principles are considered relevant. There are many statutes where that is the case, well beyond even the 30 or so statutes that explicitly require decision-makers to follow Treaty principles.
It’s impossible to say the full effects this policy will have without analysing each actual situation to which it could apply.
Seymour has said the bill will not alter or amend the Treaty itself. Nonetheless, it would have significant legal and other consequences. 
In August, the Waitangi Tribunal released a report on the policy finding that, if enacted, the bill would reduce the constitutional status of the Treaty | te Tiriti, remove its effect in law as currently recognised in Treaty clauses, limit Māori rights and Crown obligations, hinder Māori access to justice, impact Treaty settlements, and undermine social cohesion. 
The Tribunal report found the bill itself will be a breach of the Treaty, since it is calculated to weaken the Treaty’s effect on the interpretation of all the laws on the books that contain the principles.
Act is attempting to disguise this fact by saying the bill is not altering the Treaty. But clearly the purpose of the policy is to render the Treaty less important with less influence over government actions.
The upset that this will cause will be substantial. The bill would reduce the influence of Māori in a range of public policy issues, with noticeable consequences over time.  
In a strong statement contained in the Cabinet paper the Ministry of Justice has also warned against the proposal, saying it is not consistent with article 2 of te Tiriti because it ignores tino rangatiratanga, and it relies on the English language version of the Treaty. It reduces indigenous rights to ordinary rights that could be exercised by anyone and reduces the collective rights of iwi and hapu with a significant risk of majority tyranny over Māori.
The bill will, if passed, create great legal confusion and cost. And it would be the worst possible way of starting a national conversation about our constitutional arrangements, which the Cabinet paper says is one of the purposes of the policy. The other two purposes are certainty and clarity. These purposes are delusional claims. 
Act policy purports to be the policy of a liberal democracy but liberal  democracies with indigenous populations provide special protective  policies for them and have done so for many years.  
The approach ignores two vital factors – the historical context and experience of the Treaty obligations since 1840, and the contemporary relevance of the Treaty to government decision-making today.
Professor Paul McHugh, a distinguished New Zealand academic who teaches at Cambridge University, wrote an influential book which outlines these issues, entitled The Māori Magna Carta – New Zealand law and the Treaty of Waitangi (Oxford University Press, Oxford,1991). It is a long book. The complex constitutional issues, the intricate statute law, case law, and international law involved cannot be properly addressed by the simplistic approach taken by Act.
New Zealand cannot change its history and neither can we ignore it. This is heavy history and important constitutional material, and it needs to be engaged with properly, not superficially in an ad hoc way thinly cloaking an ideological agenda. The policy is disingenuous. It will produce division and polarisation and achieve nothing but confusion.
The notion that Māori in New Zealand constitute a privileged minority is risible when one examines statistics relating to poverty, education, income, rates of imprisonment and health. And that is not to mention the great historical injustice perpetuated by the settler governments of the 19th century that led to the New Zealand wars and land confiscations. What was promised to Māori under the Treaty was not delivered, although the settlements of the last 40 years have tried to redress the balance somewhat. The Department of Statistics states the 2023 census shows people of Māori descent made 19.6 per cent of population.
The history of Aotearoa New Zealand has been well covered in many historical sources and scholarship. The brief recap here is by no means definitive.
By the early 1830s, Māori were trading under a recognised Māori flag. The French also had aspirations to settle the country. In 1831, 13 Ngāpuhi chiefs wrote to King William IV of the United Kingdom to seek an alliance. To secure some order among unruly settlers, James Busby was sent as an official British Resident to Northland. On 28 October 1835 Busby called a hui at Waitangi. By the end of the day 34 Rangatira had signed He Whakaputanga o te Rangatiratanga o Nu Tireni (known in English as the Declaration of Independence of the United Tribes of New Zealand). It was later acknowledged by 18 other Rangatira.
The Declaration was recognised by the British Crown. But it was not a legally binding document. It acknowledged Māori independence and “sovereignty’’ over New Zealand. Busby hoped he was forming a confederation, but it didn’t happen as Māori preferred to retain their autonomy.
The Treaty of Waitangi / Te Tiriti o Waitangi was signed in 1840. It was agreed between the British Crown and ultimately signed by 540 Māori Rangatira. They covered much of the country, although some refused to sign and some areas were not represented. The Treaty has been described by a great New Zealand judge, Lord Cooke as “simply the most important document in New Zealand history.” This is because it was used to provide legitimacy for the British coming here in the first place. The Treaty was drafted mostly by the Crown officials, Captain William Hobson and Busby. Translation into a version in te reo was carried out by the Anglican missionary Henry Williams.
The British understanding of the Treaty was that it ceded sovereignty to the British, relying on the English text of the Treaty. However, it is now generally recognised that Te Tiriti in te reo did not adequately convey what the British meant by the word “sovereignty”. The Māori text guaranteed tino rangatiratanga for Māori over their lands, homes, fisheries and other taonga.  Hobson reinforced the Māori perception of this in oral discussions. And he told them they would “retain their perfect independence.” This reflected the instructions that he had received from the Colonial Office regarding the settlers.
In England, however, it was assumed that New Zealand had now become a British colony and part of a massive imperial system safeguarded by the British Navy. After a number of false starts, the Parliament at Westminster passed the New Zealand Constitution Act in 1852. The Parliament in New Zealand set up by the Act first met in Auckland in 1853.
New Zealand’s current legal and governance systems are based on those set up during the first 20 years of government by the Crown. The 1852 New Zealand Constitution Act was followed by the granting of responsible government in 1857. At that point the government here was largely self-governing, except for defence and foreign affairs. However, tikanga Māori also had a place, and remains currently represented in our legal system.
Māori found themselves in conflict with the Crown, principally because the colonial government wanted to exercise authority over Māori and increasing number of settlers wanted land. These pressures led to the New Zealand wars breaking out with battles between government forces and some iwi. The most  serious conflicts occurred in the 1860s, and finally at an end with Parihaka in 1881. Land confiscations to punish iwi that fought against the Crown left a legacy of grievance. These aspects of colonialism explain much about the inequities that afflict Māori to this day.
Modern experts in international law are in broad agreement that the Treaty of Waitangi was a valid treaty under international law. Professor Ian Brownlee, a recognised authority on international law wrote in 1991:
There can be no doubt… that the Treaty of Waitangi presupposed the legal and political capacity of the chiefs of New Zealand to make an agreement which was valid on the international plane. As such, the Treaty created real rights and obligations at international law.
This means the rights and obligations the Crown took up in 1840 now belong to the Crown in right of New Zealand under international law. The Treaty is binding on New Zealand twice, first as the country that is subject to the Treaty, and second as the successor to the obligations of  Great Britain for the Treaty.
New Zealand is now totally independent. London cannot make decisions for us now, so New Zealand is the successor to the obligations of the British government which was one party to the Treaty. It is also binding as a valid treaty at international law and it applies to this country. And to cap it all, the Treaty may be binding as a matter of contract law.
The Crown has obligations to honour its guarantees of tino rangatiratanga and equal rights under New Zealand’s existing constitutional arrangements. These obligations cannot be recklessly dismissed.
Rights and obligations arising from treaties cannot be specifically invoked and enforced in the domestic courts unless they have been incorporated in domestic law by Acts of Parliament. Many domestic laws do refer to the Treaty as matters now stand. The courts have often used the Treaty as both a source of principle and as an aid to interpretation of both statute and common law.
The third Labour government elected with a clear mandate in 1972 had a policy to “examine a practical means of legally acknowledging the principles set out in the Treaty of Waitangi.” The policy was worked through a caucus committee and a statute was passed, the Treaty of Waitangi Act 1975. A key adviser on it was Professor Quentin-Baxter of Victoria University, an expert international lawyer. 
It was then the formal ‘principles’ of the Treaty entered the constitutional dialogue. The Treaty of Waitangi Act 1975 was a most significant step to reversing the trend of trying to ignore the Treaty that had dominated in previous years. The preamble to the statute states the reasons for the approach.
The brief three articles in the original Treaty were written in two languages and were not compatible with what was agreed. It was thought by taking the issues gradually and examining each issue individually and thoroughly before the Tribunal that it would be possible to progress. And that proved to be correct.
The Tribunal under the chairmanship of Sir Edward Durie made a number of important reports that produced recognition of the Treaty and convinced the fourth Labour Government to extend the jurisdiction of the Tribunal back to 1840. This produced many claims for the palpable historic injustices that had been visited upon Māori and large awards of money, land and other assets were handed over in recompense.
Claims began to be negotiated directly between iwi and the Crown. This produced many settlements. The historic claims now are almost at an end and the Tribunal has produced many important reports on contemporary issues. Contemporary breaches remain to be dealt with on a continuing basis as the law currently exists.
Treaty clauses in New Zealand statutes have been interpreted by the courts. For example, Section 9 of the State Owned Enterprises Act 1986 provided that “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.” This provision led to a most significant legal case, known as the Lands Case, in which the Court of Appeal unanimously held that the Crown could not transfer assets to a state owned enterprise without establishing a system to consider whether such a transfer would be inconsistent with the principles of the Treaty of Waitangi, and therefore unlawful.
The result of this legal declaration was a negotiation with Māori followed by the passage of a statute that permitted transfers as long as titles to the lands in question made it clear they were subject to Treaty claims. This meant the rights of claimants were expressly protected. There were other cases as well.
Over the years, the courts have interpreted statutes and, in doing so, developed a series of Treaty principles that can be applied in other cases. These principles include that the Treaty was a partnership between the Crown and Māori in which both must act reasonably, honourably and in good faith. It includes active protection, as the Crown’s right to govern involved in a corresponding obligation to actively protect Māori interests. It includes redress, putting wrongs right. The Tribunal has also identified other principles of reciprocity, mutual benefit, self-government and the right of Māori communities to manage themselves and their territories and resources.
So, the present situation is that the Treaty and its principles are part of statute law for some purposes and not for others, and the applications of the Treaty may be inconsistent from one statute to the next. Furthermore, under some circumstances the courts can consider the Treaty when interpreting other statutes even when it is not specifically mentioned.
In recent decades the Treaty has also come to form a more important element of government decision-making. Decision-making processes set out in the Cabinet Manual 2023 require attention to the consequences of decisions that affect Māori interests. For example, it is necessary for ministers who seek Cabinet approval for bills to be introduced into Parliament to draw attention to any features of the bill that have te Tiriti implications. It is not clear that the present government is following the guidance in the Cabinet Manual. It is the definitive guide as to what ministers and public servants must consider in their decision-making.
Having the privilege of exercising the power of government in this country does not give the Government the right to do whatever it likes. With power comes responsibility. There are more responsible and constructive ways to fashion an enduring public policy platform for the role of the Treaty of Waitangi in the future.
In his second article in this series, Sir Geoffrey Palmer seeks a democratic way to explore Treaty principles.