Read the Green Party's differing view on the Treaty Principles Bill, prepared by Tamatha Paul.
Treaty Principles Bill - Differing View - Green Party Aotearoa
Prepared by Tamatha Paul, Wellington Central MP
Te Tiriti is tapu. It is a sacred covenant that carries characteristics of mutual benefit, good faith, permanence, mutual respect, commitment to relationship. It is the founding agreement that legitimises the presence of people who would otherwise be only visitors in Aotearoa.
We express our strongest condemnation of this Bill in its entirety and wish to set out our concerns in full detail given there has been truncated analysis of the Bill and its submissions from the public. We wish to make the following comments on the Bill.
Justification or rationale for this Bill does not exist
The development of this Bill was not preceded by a legitimate policy imperative or outcome. This exercise has been estimated to cost around $6 million to the Government and has put the onus for truthful and accurate information regarding Te Tiriti o Waitangi on the general public.
This Bill is premised on an assertion that the principles of the Treaty are unclear. This assertion is baseless. The Regulatory Impact Statement on this Bill says that this Bill creates additional uncertainty because it displaces existing case law about how the principles should be applied in real life. This Bill is effectively a reset button on decades of jurisprudence and careful weighing of evidence by the Courts. This is the case law that gives clarity on what Te Tiriti o Waitangi means according to the Courts, and this Bill would overturn that clarity for no justifiable reason. Principles that have been carefully and deliberately established over the last forty years including partnership, active protection, and redress would no longer be relevant.
This Bill is a prime example of executive and legislative overreach by Parliament. We have a separation of powers for a reason, which is to provide an effective check on unbridled power wielded by politicians. The author of this Bill and some submitters supporting the Bill made claims about an "unelected judiciary". This deliberately misrepresents the role of the judiciary. Judges should not be punished and dragged through the mud with no right of reply. The role of our judiciary is to interpret and apply legislation passed by Parliament, and there is no credible evidence that they have done anything but that in relation to legislation which mentions, or is relevant to, Te Tiriti o Waitangi. It is critical to our democracy that these roles remain independent and it is completely inappropriate for elected members to generate public uncertainty and distrust to our judicial system in order to enhance their own power.
Contrary to the assertions of the Bill's author, It is not unusual or extraordinary to have constitutional arrangements that recognise and provide for different ancestry, languages, religions and genders. Canada, Denmark, Bolivia, Sweden, Finland, Ecuador, and the Philippines are a few countries that have enabled constitutional recognition of Indigenous rights. The reason why examples of constitutional structures that affirm indigenous self-determination and autonomy are apparently uncommon is that in many settler colonial countries the cultural, political, and constitutional presence of Indigenous peoples is extremely limited, as a result of deliberate efforts to render Indigenous peoples invisible. This Bill exists in a tradition of assimilationist approaches to indigenous people. The recognition of Māori rights does not diminish the rights of others. Upholding Te Tiriti aso protects the rights of non-Māori to make Aotearoa their home. It ensures that our country's constitutional promise and social cohesion is achieved for the benefit of all.
We also note that this Bill does not include interpretation or definitions for the wording it uses to replace the principles of the Treaty. Despite the Bill using contested language such as "best interests", "everyone", "free", "democratic", "equal protection", "equal benefit", "equal enjoyment" and "fundamental rights" - there is no definitions provided for these contested terms, nor does the Bill point to any similar interpretations within existing laws which might help in the application of the drafted principles.
In summary, there is no justification for this Bill aside from the author of this Bill seeking to incite a culture war because it gives him and his pathetic policies a platform.
Misrepresentation of the Principles of the Treaty
The existing Treaty principles are far more clear than has been alleged by supporters of this Bill. The principles as we know them, and as they are applied, have been developed by the courts and the Waitangi Tribunal over the last fifty years. The Bill misrepresents the normal legal processes whereby courts develop law and principles over time - presenting that as somehow uniquely inappropriate. It is true that public education on Te Tiriti o Waitangi has been lacking throughout our history, but the Bill does not solve that problem and further skews the public understanding of the true history and intent of Te Tiriti o Waitangi..
Parliament is not the appropriate place to decide the Treaty principles in the way contemplated by this Bill. This is what this Bill is attempting to achieve. In a great show of humility by previous Parliament's, including the Government who presided over the Treaty of Waitangi Act 1975 when it came into effect, they acknowledged that Parliament does not have the knowledge or expertise to determine and define the principles. Parliamentarians come from all walks of life and have a vast array of skills, however very few have a coherent understanding of the historical context in which Te Tiriti was signed, nor proficiency in Te Reo Māori to understand the true context of the original text, nor the experience applying the principles in a judicial context.Aside from the constitutional inappropriateness, parliament is out of its depth when it comes to unilaterally adjudicating over Te Tiriti o Waitangi and we suggest that this is left to people with proper constitutional and legal skills and understanding to interpret and determine the principles and adherence to those. This is an abuse of power. Moreover, and arguably more importantly, that is something that should happen with the Māori Tiriti partner, not by the Crown alone.
The author of this Bill takes advantage of the relative lack of understanding of Te Tiriti o Waitangi which is an additional suppressive act due to the fact that it is not something that many New Zealanders ever learnt about in school. The author has crafted the principles in this Bill in a way that suggests that all New Zealanders are not already equal in terms of human rights. This is not true.
There is not one reputable source or academic who concurs with the author's interpretation of the Treaty principles. This has been confirmed by the Waitangi Tribunal in the strongest of terms.
We wish to make the following comments on the principles as defined in this Bill:
On Principle 1, Māori never ceded sovereignty
This Bill defines the first principle of the Treaty of Waitangi/ Te Tiriti o Waitangi as: "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."
This misrepresentation of Article 1 demonstrates a complete lack of understanding of the historical context in which Te Tiriti was signed. Many of the Bill's supporters argued that Māori could not cede sovereignty because it was never ours to begin with, or because there were inter-tribal disputes. This completely dismisses and purposefully ignores He Whakaputanga o te Rangatiratanga o Nui Tireni 1835 which is the document preceding Te Tiriti o Waitangi which affirmed independence and sovereignty for Māori. Both He Whakaputanga and Te Tiriti o Waitangi were signed in order to safeguard hapū and iwi Māori in the face of rapid change. We can see through this Bill and its process that this is the enduring nature of Te Tiriti, even 185 years later after its signing. The fact that sovereignty was never ceded is equally true for other signatories to Te Tiriti who did not sign He Whakaputanga in 1835.
The distortion of our historical context by the ACT Party is not only limited to their illiteracy in New Zealand history, it extends to their historical illiteracy in relation to the history of the Crown. In 1840, Great Britain was not a democratic society, and the ruling classes at the time were opposed to the prospect that it ever might be. How could the first article of Te Tiriti be interpreted to say "the maintenance of a free and democratic society", when this was not the type of society that either of the signatories had, or aspired to, upon signing? In the words of Ani Mikaere, "in 1840 the Crown came to Māori as supplicant, not the other way around. The rangatira who signed Te Tiriti agreed to allow the Crown to remain in Aotearoa on the condition that it take responsibility for the conduct of its own citizens."
Article 1 of Te Tiriti is about rangatira who signed Te Tiriti o Waitangi agreeing to share power and authority with the Governor. This was not a transfer of sovereignty, power or authority from rangatira to the Crown. Article 1 is a form of delegated authority drawn from the absolute tino rangatiratanga that Māori possessed in 1840, outnumbering non-Māori by 1 to 40 demographically, militarily, economically and culturally. The fact that Māori never ceded sovereignty has already been spelt out by the Waitangi Tribunal's Te Paparahi o te Raki report.
On Principle 2, tino rangatiratanga
This Bill defines the second principle of the Treaty of Waitangi/ Te Tiriti o Waitangi as: "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. 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."
This misinterpretation of Article 2 completely disregards tino rangatiratanga affirmed by Te Tiriti o Waitangi. It constrains Māori rights to those conferred through Treaty settlements. Treaty settlements in and of themselves already fail to compensate for the violent dispossession of Māori land thanks to this Parliament's decision to apply a fiscal limit to all Treaty settlements which reflects around 1% of the estimated financial impacts of Treaty breaches. This represents a legacy of colonial instincts whereby some of the people who have benefitted from this violent dispossession are now defending their right to preserve their interests which they got through lying, murdering, raping, infecting and pillaging Māori.
Tino rangatiratanga is far broader than property rights or Treaty settlements. Tino rangatiratanga did not come into existence in 1840, or 1835. It doesn't exist relative to the Crown's comfortability of acknowledging its existence.
This bill seeks to replace tino rangatiratanga, which is a collective right, with individual rights. This is a classic libertarian interpretation where most things are seen to be bought and owned by individuals, and the purpose of rights in their view is to assert control and exclusive power over something else.
On Principle 3, equality for who?
This Bill defines the third principle of the Treaty of Waitangi/ Te Tiriti o Waitangi as: "Everyone is equal before the law. Everyone is entitled, without discrimination, to the equal protection and equal benefit of the law; and the equal enjoyment of the same fundamental human rights."
Principle 3, as it is proposed in this bill, purports to be about honouring the concept of equality. As pointed out by many submitters, this phrasing about equality is misleading. The term 'equality' is highly-contested and there are many iterations of the term.What this Bill refers to is what would be known as 'formal equality'. Formal equality makes a presumption that everyone is equal right now and therefore we should treat everyone the same.
In reality, Māori are over-represented in the worst statistics due to enduring legacies of colonisation. For example, we have shorter life expectancy, we have poorer health and education outcomes, we are over-represented in prison and in homelessness statistics. If everyone were to receive equal treatment, this would maintain, and indeed entrench, existing inequalities. We want to be clear that it is not a fault of iwi, hapū or Māori that we are over-represented in such statistics. The shame and burden of responsibility for these statistics falls squarely on this Crown and its decisions to violently separate our people from our land, our language, our identities, our history and our future. We can only live in a society with equal outcomes and equal quality of living if we first address areas where specific groups have been let down so that we can all operate from an even playing field, otherwise this principle simply consolidates inequality. That is why developed democracies choose to subscribe to frameworks of 'substantive equality', as opposed to 'formal equality' which is focussed on equality of results and outcomes. Substantive equality if about redressing disadvantage, accommodating difference and achieving structural change.
In reality, equal protection of the law and equal enjoyment of the same fundamental human rights is already recognised and safeguarded under the United Nations Universal Declaration of Human Rights, the New Zealand Bill of Rights Act 1990, Human Rights Act 1993 and Senior Courts Act 2016. To act as if the only way to achieve these rights are through rewriting historic agreements and relinquishing Māori rights is misleading and sinister.
We are still looking for any credible evidence that "special treatment" exists for Māori. Moreover, Te Tiriti in and of itself did not confer any "special rights" to Māori. It affirmed pre-existing rights that Māori already had. Te Tiriti granted "special rights" to the Crown, if anybody.
Select committee is not a "national conversation"
The Green Party has always supported a national conversation about constitutional transformation in line with Matike Mai report prepared by the Independent Working Group on Constitutional Transformation. However, a select committee process does not constitute a national conversation. Select committee is a one-sided process where there are very few exchanges of ideas, where the Government is in control and sets the parameters, and no ability to ask questions or delve deeply into the publics views. Not to mention, this process has been rushed with many submissions not able to be processed before the report back to the house in May. Moreover, the Crown cannot abrogate its constitutional responsibilities to Māori by asking the public to adjudicate on the matter via select committee or via national referendum. Aside from the extreme inadequacies of this so-called 'conversation', an arguably even greater problem is that this 'conversation' is happening unilaterally, without the involvement of the Māori tiriti partner. As the Waitangi Tribunal pointed out, that is not a conversation, it is a monologue. The invitation for Māori to take part in the select committee process, as though that is enough, is unjust, unconstitutional and falls far short of what Te Tiriti o Waitangi requires.
Parliament is power, but it is not omnipotent. The fact that its executive branch, Cabinet, think that they can unilaterally amend our country's founding document is historical vandalism and propaganda in the most dangerous form.
The select committee process has been unfathomably shabby. Not because of the hard work by the Committee's secretariat, but because it has been rushed. This is the most submitted on Bill in the history of this Parliament. We have been unable to analyse submissions to the high standard we are accustomed to, our oral hearings were not live-captioned for those with hearing impairments, Te Reo Māori translation has been slow due to a lack of capacity to translate and analysis has been cut short in order to fit into the Government's timeframes. This Parliament should never get in the habit of rushing legislation and cutting short the traditional process on such a polarising Bill of national significance.
A national referendum where a majority of people get the opportunity to undermine discrete rights of a minority population, who far outweighed the Crown and its subjects during the time of signing, is a recipe for polarisation, extremism and social division. A referendum which undermines the covenant between Māori and the Crown, led by politicians who are well-versed in giving opinions but constitutionally- and historically-illiterate undermines our aspirations and full ability to to be an honourable kāwanatanga. This Bill has completely undermined the mana and honour of the Crown against all advice from its officials and the people of New Zealand who it purports to represent.
Final comments
Overall, this Bill has been an international embarrassment. We have attracted international attention for this legislative attack on our indigenous people, as well as our inability to honour our agreements. New Zealand is party to 1,900 treaties. Te Tiriti o Waitangi, the treaty which founded our nation, is the one that this government refuses to honour or uphold. This Bill has been an absolute insult to Māori which will take a very long time to heal. This Bill has been described as a "legislative attack", "worst assault on Māori" and even as an invitation, in the words of former Prime Minister Jenny Shipley, for civil war. A discussion of this nature must be informed by tikanga and led by both parties to Te Tiriti.
Arguments from people supporting this bill made in submissions were incoherent, factually inaccurate, based on outdated perspectives and arguments, and many were outright racist. In reality, Te Tiriti and its interpretation is not a matter that is keeping New Zealanders up at night. It is only a vocal, fixated minority who believe that their rights have been eroded by the presence of Te Tiriti. The New Zealanders who wish to wage war against our indigenous people, via this Bill, will inevitably fail because this type of culture war is not natural or normal to New Zealand, it is imported. New Zealanders know that we have far more important issues to solve than this.
This Bill is part of a suite of legislation that attacks and diminishes the mana of Te Tiriti o Waitangi because Treaty rights are seen as a barrier to the government's agenda of facilitating corporate exploitation of nature. Indigenous rights do stand in the way of unfettered environmental exploitation. It is no coincidence that most of the world's most intact biodiversity is in indigenous controlled land. Many iwi have leveraged their rights under Te Tiriti to protect their precious natural environment. For example, Ngāti Ruanui in Taranaki have defended their seabed from mining by Trans-Tasman Resources so that they might protect their taonga for future generations. In previous years Te-Whanau-ā-Apanui exercised their rights over their customary waters in the Raukumara Basin to successfully oppose deep sea oil drilling by transnational Brazilian oil company Petrobras. These protections of the natural commons - our oceans, rivers, climate, and taonga native species - benefit all New Zealanders, Māori and non-Māori alike. Indeed insofar as Māori exercise of tino rangatiratanga and kaitiakitanga achieves the preservation of natural biodiversity and ecosystem health it contributes to the viability of life on Earth for the good of all humanity.
Te Tiriti in the fullness of its intent and meaning is the pathway to cohesive nationhood. An Aotearoa in which everyone thrives and present and future generations can sustain and enjoy all that our beautiful country has to offer.
We oppose this Bill in the strongest terms.
