Clive Boonham: Treaty Reset

Opportunity

With a more liberal government about to take office we have a once in a lifetime chance to push back all the Treaty hype and misrepresentations of the previous decades and "reset" the Treaty as it should be in fact, and in law, and in accordance with the constitution of New Zealand. Only then we will be able to move on as a united country.

We have an opportunity to reject a government based on separatism, legislated racial preference and inequality. We can also set in legal concrete the acceptance of the truth that our country is a multicultural, democratic sovereignty where all people are equal irrespective of race or heritage, or any of the other grounds of discrimination in our Human Rights Act.

We have the opportunity for our country to return to the values that our country was celebrated for.

We need to be bold

I have noted that politicians in the three parties that will form the next coalition government are very diffident about Treaty issues.

There is so much smoke and noise coming from the activists, the current government, judges, and lawyers created by false Treaty doctrines, opinions based on fantasies, half-baked theories, and slogans and principles of the Treaty that they do not understand.

Those advancing the facts and the law are swallowed up in a torrent of propaganda so that no one is allowed to know the truth.

The strategy of the Treaty activists is highly refined. They have learned how to promote their one-sided views of the Treaty, and ensure that their mantras are repeated over and over again to gain maximum credibility.

They are masters at playing the race card. Anyone who opposes them is branded as racist even though it is the activists themselves who are trying to establish a country separated by race.

They understand the need to inculcate the young from an early age with the Treaty propaganda, and ensure that it plays a part in all workplaces to capture the older people.

They push te reo in the media and in different aspects of our life, not for the benefit of learning te reo, but to show who is in control.

When resistance to their view is mounting, they know how to successfully play the thug card and threaten violence if their views do not prevail.

Perhaps their biggest success is that they have managed to bribe the mainstream media of New Zealand to play only from the Maori song sheet and to avoid reporting any aspect of Maori life that is not in accordance with the Treaty commandments, or, heaven forbid, hints at the actual truth or the law relating to the Treaty. Anyone in doubt about how our media has sold itself out to Maori activism should educate themselves about the Public Interest Journalism fund here:
https://thetreatyfacts.blogspot.com/p/public-interest-journalism-fund-facts.html

The mainstream media of New Zealand should forever be ashamed that it sold its integrity for thirty pieces of silver.

Despite all of this, the reality is that the Treaty claims are ill-founded and misconceived. If the smoke is cleared away, the facts, the truth and the applicable law will be exposed and can be assessed objectively. That will give us a much clearer picture of what we need to do to reset the Treaty and give it its correct legal status, resolve all the issues, and take the appropriate steps to set New Zealand on a united course.

The facts and the law

First, we need to summarise what we have established so far:

• The Treaty was a heads of agreement document for the establishment of New Zealand as a nation.

• Sovereignty was asserted by the Crown in 1840 pursuant to article 1 of the Treaty.

• Sovereignty has remained vested in the Crown from 1840 to the present day and that is confirmed by the Constitution Act 1986.

• The Treaty has no part in New Zealand's constitution.

• The agreement for protection of rights in article 2 relates to rights existing in 1840. Some claims have been made for breaches of those rights through the Waitangi Tribunal. Provision needs to be made for any outstanding claims.

• The agreement to grant rights of equal British citizenship in article 3 has been satisfied by the establishment of the new constitution, the setting up of government, with personal rights being protected initially under British law and subsequently by New Zealand legislation such as the New Zealand Bill of Rights Act and the Human Rights Act. Current property rights are also protected by legislation which apply to all New Zealanders.

• The rights and obligations in the Treaty itself have never been incorporated into either British or New Zealand legislation.

• There is no need for such legislation as article 1 was implemented with the assertion of sovereignty in 1840. The rights and obligations under articles 2 and 3 of the Treaty have now been satisfied through general legislation.

• The "principles of the Treaty" as defined by the Waitangi Tribunal are not binding in law.

• Legislation with a Treaty clause requiring compliance with the principles of the Treaty, or similar, is only binding on the Crown if a claim is heard before a court and the court rules that there have been breaches of principles of the Treaty.

• "Bogus Treaty" clauses in legislation purporting to impose principles of the Treaty obligations on non-Crown organisations to provide special treatment for Maori based on race are technically valid in law but are in breach of NZBORA and the Human Rights Act because such a distinction is prohibited.

• The slogans such as co-governance, partnership, and self-determination are based on the non-binding views of the Waitangi Tribunal and have no foundation in law. In addition, in the constitution of New Zealand "the Sovereign in right of New Zealand" exercises absolute sovereignty. Any sharing of that sovereignty would require a fundamental change to New Zealand's constitution.

• In summary, the Treaty itself does not have any footprint in the law of New Zealand or in the constitution of New Zealand.

Considerations

Principles of the Treaty

Some suggest that the principles of the Treaty should be defined through a referendum. The Act Party campaigned on three basic principles which, it maintains, align with the articles of the Treaty. The new principles would be:

• All citizens of New Zealand have the same political rights and duties.

• All political authority comes from the people by democratic means including universal suffrage, regular and free elections with a secret ballot.

• New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal

Although sensible, they purport to be "principles of the Treaty" but they have no real connection to the principles or to the Treaty. They are statements about the constitution not the Treaty.

 
If we tinker with the principles of the Treaty and create new ones, it will extend the life of a misconceived and flawed concept that is responsible for most of baseless slogans and the general mayhem surrounding the Treaty over the past 48 years.

The Act Party approach might give the concept some certainty, but would such a simple solution resolve all the trauma inflicted by the concept over the past 48 years? It would also leave the meaning of the Treaty itself unresolved, no doubt with endless arguments for generations to come over its various interpretations.

The concept of principles of the Treaty were ill-conceived by politicians, and badly handled by both the courts and the Waitangi Tribunal. Their misuse in legislation by the departing Labour government has created a hysteria for embracing principles that no one understands.

The reality is that the concept of the principles of the Treaty was an interloper that must be dealt with. It must be consigned to history.

Principles Of The Treaty Of Waitangi Deletion Bill 2005
http://www6.austlii.edu.au/nz/legis/hist_bill/pottowdb20052471445/

The proposal to repeal any reference to the principles of the Treaty is not new. In 2005 New Zealand First promoted a bill entitled Principles of the Treaty of Waitangi Deletion Bill 2005. The aim of the bill was to delete all references in legislation to the "principles of the Treaty", of similar. The Explanatory Note states:

The bill seeks to correct an anomaly which has harmed race relations in New Zealand since 1986 when the vague term "the principles of the Treaty of Waitangi" was included in legislation

It then continues with an unrestrained criticism of the concept and its consequences. It paints a dismal picture of the effect of the concept on race relations in New Zealand and the negative effect on Maori aspirations in 2005. This triggers a realisation of how much the situation has deteriorated in the following 18 years. It is worth a read. The bill failed to pass its second reading

The rule of law

The rule of law should be the major consideration when assessing the role of the Treaty in our law. The Treaty itself does not play a part in our legal system. Its cousin, the principles of the Treaty, has two roles. Its role in the Treaty of Waitangi is outside the law in that its role is limited to making non-binding recommendations to the government on Treaty claims. Its role in "Treaty clauses" is statutory, but only triggered by a Treaty clause in legislation.

The whole thrust of Maori Treaty claims is that Maori, as a race, have superior rights to all others because of the Treaty, because of the principles of the Treaty, and because they are indigenous.

In promoting their cause they appear oblivious to the fact that human rights legislation - the law - prohibits such preferential treatment.

Anyone who presents this very reasonable argument is immediately branded as "racist" for discriminating against Maori on the basis of race. Clearly Maori believe that they have a special status in law which overrides the statute law, and therefore the rule of law.

The statute law is quite clear. The New Zealand Bill of Rights Act states:

19 Freedom from discrimination

(i) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

The Human Rights Act 1993 states:

21 Prohibited grounds of discrimination

(1) For the purposes of this Act, the prohibited grounds of discrimination are—

(f) race:

(g) ethnic or national origins, which includes nationality or citizenship:

International law obligations are also compelling. The Universal Declaration of Human Rights states:

Article 1: All human beings are born free and equal in dignity and rights.

Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The United Nations Declaration on the Rights of Indigenous people (UNDRIP) commences with certain affirmations, including:

Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.

How then can the special status of Maori be justified? Why does the rule of law not apply?

An insight into the departing government's mindset on this issue is illustrated in the advice of the Attorney-General, David Parker, on the consistency of the Pae Ora (Healthy Futures) Act 2022 with the requirements of NZBORA. The Act contains a principles of the Treaty section (section 9) and then proceeds to list a series of preferential health treatments specifically for Mäori. On the face of it the provisions are blatantly in breach of human rights legislation.

Not so. The arguments of the Attorney-General run as follows:

22. The Bill has various provisions to explicitly promote Māori health and uphold the principles of Te Tiriti o Waitangi.....

25. The Bill could therefore be seen to draw distinctions on the basis of race or ethnic origins. However, to the extent the distinctions reflect the status of Māori as the Crown's Treaty partner, and the Crown's duties under Te Tiriti o Waitangi, we do not consider any other group is in a comparable position. The result of this assessment is that s 19 of the Bill of Rights Act is not engaged.

26. Nevertheless, for completeness we have considered whether a disadvantage arises to any class of people. We do not consider that this is the case, for the following reasons.

27. The relevant provisions are not designed to provide a specific advantage to Māori, but rather to achieve equity among New Zealand’s population groups. Addressing inequity does not result in disadvantage to those not already disadvantaged. As the Bill identifies, disparities in health services, access, and outcomes exist currently, in particular for Māori. This factor also supports our assessment that the Bill's distinctions are not drawn between comparator groups.

In other words, because Maori are a Crown partner and because of the Crown's duties under Te Tiriti o Waitangi, Maori have a special status in law. It is also a matter of providing equity for Maori. And, because Maori are specifically disadvantaged in health services there is no comparator group to compare with.
The departing government and the Crown law Office clearly believe that misconceived Maori rights place them above the rule of law. That cannot be allowed to continue.

The constitution

It is often said that New Zealand does not have a written constitution. That is not completely true. Certainly the principles of democracy and equality are not spelt out in any constitutional document, but many are included in our laws.

One part of our constitution is set out in writing very clearly and yet it is largely ignored. That is the way in which our country is ruled. The Sovereignty Act 1986 confirms in detail that the sovereignty of New Zealand is vested in the Sovereign in right of New Zealand and the power to make laws is vested in the Sovereign in Parliament.

There can be no challenge by Maori to this situation. The Treaty has no presence in New Zealand legislation. It is not referred to in the Constitution Act 1986. The principles of the Treaty are a red-herring that have no relevant part in the law of New Zealand or in its constitution.

It is quite bizarre that the Constitution Act was enacted in 1986. It stated clearly that the sovereignty of New Zealand is vested in the Sovereign in right of New Zealand. Yet only a year later in 1987 in the Lands case the Court of Appeal expressed the view that the Crown and Maori were in a relationship "akin to a partnership" created by the Treaty. (Note that the judges of the Court had sworn an oath of allegiance to the Queen.) That view still prevails in government circles.

We need to have confidence in our constitution, as written, and our laws of equality and non-discrimination. We must not be intimidated by baseless Treaty claims and misconceived slogans and the threats that stand (not so) thinly veiled behind them.

My very rough proposal

• There should be enacted a new Treaty of Waitangi Act 2023.

• The Treaty should be defined as the agreement between Maori chiefs and the Queen which laid the foundation for the new state of New Zealand.

• The current official Maori version of the Treaty should be declared to be the sole official version of the Treaty.

• The official English translation would be an abridged version but it would be the only official translation in law. It would read something like:

Article 1: The chiefs agree to cede the complete sovereignty of New Zealand to the Queen.

Article 2: The Queen agrees to guarantee to the chiefs, the tribes and all the people of New Zealand the possession of their lands, their villages and homes and all their existing possessions.

Article 3: The Queen agrees to grant to all the people of New Zealand the same equal rights of citizenship enjoyed by British subjects.

• There would be a provision:

(1) All the agreements set out in the Treaty in both languages have been implemented or executed through the sovereignty of the Crown or through legislation.

(2) The only exception to the above is the issue of resolving historic breaches of article 2.

(3) (The way of dealing with the issue, preferably through the courts, but with very rigid criteria.)

(4) Except for subsection (3) above no applications to the court will be entertained for any matter arising our of the Treaty of Waitangi in either the Maori version or the English translation.

• There should be a provision deleting all references to the principles of the Treaty and the Waitangi Tribunal from all legislation, along with the deletion of all provisions mandating special treatment based on race.

• There could be a statement confirming the multicultural democratic nature etc of the New Zealand constitution.

• There would need to be a provision to provide a remedy for the breach of existing property rights under article 2 of the Treaty. (See below)

Remedy for the breach of existing property rights (article 2)

Article 1 of the Treaty was implemented through the assertion of sovereignty by the Crown in 1840, by the exercise of sovereignty since that date, and through the Constitution Act 1986.

Article 3 of the Treaty was implemented through the assertion of sovereignty by the Crown, the establishment of a government, and by the adoption of British law, and subsequently New Zealand law, which included equal rights for all New Zealanders, including citizenship.
Article 3 contained an undertaking of the Crown to protect the existing property rights of the chiefs, the tribes and all the people of New Zealand. The adoption of British law protected the general property rights of all new Zealanders. However, the transitional protection of property rights existing in 1840 might be left in limbo.

From 1840 to 1975 there was no available remedy for Crown breaches of article 2. Because the rights and obligations of the Treaty had not been incorporated into domestic legislation there was was no remedy through the courts. The Waitangi Tribunal was created to fill that gap. However, claims for Treaty breaches heard by the Tribunal were not to be based on breaches of article 2 but on breaches of the "principles of the Treaty". There have been many claims since 1975, and, apparently, there are still historic claims still waiting to be heard.

If the Waitangi Tribunal and the principles of the Treaty cease to exist in the reset then there is no legal process for hearing those outstanding claims. The other problem is that all previous claims have been resolved through a very generous interpretation of the principles of the Treaty by the Tribunal. Taonga was interpreted as treasures and not possessions. In addition it was deemed to include not only the treasures existing in 1840 but all future so-called treasures that had a a very flimsy link to Maori. All prior claims were decided on the basis of the interpretation. Any new claims process through the courts will presumably be based on the interpretation of taonga as possessions, and strictly the possessions existing in 1840. This would create a disparity between the treatment of historic claims and new claims. Clearly this disparity would have to be resolved in some way.

A referendum, or not?

At the beginning of this article I discussed the Act Party proposal for a referendum on the principles of the Treaty. My view is that no referendum is needed on the principles or on the Treaty itself. There are two things that the new government will need to do:

1.  Ensure that all aspects of the Treaty are explained to the people. Rebut all the slogans, explain the current role of the Treaty, and expose the misconceptions about the principles of the Treaty. Explain the events in the creation of the sovereignty of the Crown, how it is the cornerstone of our constitution, and any shared governance is not feasible. Emphasise the rule of law and human rights legislation and that preferential treatment based on race is not possible in a civilised, democratic society.

2.  The mainstream media naturally control most communications in New Zealand. Because of the Public Interest Journalism Fund, Treaty issues are reported on a pro Maori basis. It will be impossible to convey the information about the Treaty and our constitution. That problem will have to be resolved.

Do we have an option?

I can make the following assertions quite confidently:

• Not one person in New Zealand can state accurately which is the lawful version of the Treaty and what English wording is binding in New Zealand law.

• Not one person in New Zealand can identify all of the principles of the Treaty that are binding in New Zealand law.

• Not one person in New Zealand can identify the lawful basis for 'co-governance" between the Crown and Maori, what it means in practice, and how it can be reconciled with the absolute sovereignty of the Crown in the Constitution Act 1986.

So, what are we going to do?

Can we allow the Treaty issues to keep on drifting without any attempt at resolution, because the issues cannot be solved?
Should we surrender to the pressure and threats of violence and accept shared or separate sovereignty?

Should we reach a compromise, which no doubt would satisfy neither party. The rift and the disputes would continue.

Or, should we take this opportunity to resolve the Treaty issues once and for all, to consolidate our constitution, so that it is based on democracy, on fundamental human rights, and ensure that New Zealand goes forward as a multicultural society where all of its peoples have equal rights?

An analysis of the facts and the law reveals the very limited role of the Treaty in our law and constitution in 2023, That is not surprising given that the agreements in the Treaty were entered into 183 years ago.

The sovereignty of our country and the constitutional provisions for the governing of New Zealand are set firmly in concrete in the Constitution Act 1986. Claims for shared governance or separate governance are simply not feasible.

Whilst our domestic legislation and international obligations contain provisions for the equal rights of individuals and the prohibition of preferential treatment, it may be necessary to link such rights to our constitution so that they cannot be ignored or overridden as they have been, especially under the previous government.

Everyone involved in the decision-making should read the wise observations of David Lange written in 2000 and reflecting on the past failures to resolve the Treaty issues and establish democracy and equal rights as the foundation of New Zealand.

Clive Boonham is a retired barrister and solicitor who blogs regularly on Treatyfacts.blogspot.com – where this article was sourced.