Mike Butler: Treaty principles and threats

Those who have done well out of the invention of treaty principles “will object to their removal” and “use the loud voices and threatening tactics”, Auckland University Professor of Education Elizabeth Rata wrote last October.

So true. Once the ACT Party’s proposed Treaty Principles Bill became a reality, as soon as the government changed, those loud complaints rang out.

• Te Pati Maori called for nationwide disruption on December 4. '

• The Maori king rallied 10,000 at Turangawaewae Marae on January 20 to oppose “contentious government policies set to impact Māori”.

• The same complaints were repeated at this year’s Ratana celebrations a few days later

• Further complaints are expected on Waitangi Day.

The phrase “treaty principles” first appeared in Maori Affairs Minister Mat Rata’s introduction to his Treaty of Waitangi Bill in 1974.

At that stage, no one knew what treaty principles were because they did not exist in any written form.

Twelve years later, in 1986, when the State-Owned Enterprises Act was being discussed, some were concerned that such an Act would infringe rights guaranteed to Maori by the treaty as Crown assets were transferred to new enterprises.

Ngati Tuwharetoa paramount chief Sir Hepi Te Heuheu approached Deputy Prime Minister Geoffrey Palmer.

Te Heuheu said that inclusion of the phrase “nothing in this Act shall permit the Crown to act in a manner that was inconsistent with the principles of the treaty” would allay concerns. Palmer agreed.

Such a reference was included as section nine of the State-Owned Enterprises Act 1986 as a treaty clause.

The first written version of the principles appeared in an Appeal Court judgement titled NZ Maori Council v Attorney General 1987. That case was to do with the above-mentioned transfer of assets to State-owned enterprises.

Five Appeal Court Justices either wrote summaries of what they thought they were or commented on them in the 1987 New Zealand Maori Council v Attorney-General decision.

Palmer wrote in his book New Zealand’s Constitution in Crisis that because addressing Maori grievances was politically unpopular and risked being outvoted, he set up “processes, procedures and the principles on which decisions should be based.”

Those “principles” are the Principles for Crown Action on the Treaty of Waitangi. Published on July 4, 1989, these five principles are:

• kawanatanga (government), which recognises the cession of sovereignty and the government’s right to govern and make laws in exchange for protection of rangatiratanga;

• rangatiratanga (self-management). The second article of the treaty guarantees to iwi the control and enjoyment of taonga that they wish to retain. “This is the price the Crown paid for what it obtained in the first article”;

• equality, which recognises the guarantee in the third article of legal equality and the actual enjoyment of social benefits between Māori and other citizens of New Zealand. Legal equality means that “all New Zealand citizens are equal before the law” while the enjoyment of social benefits recognises that “where serious and persistent imbalances exist between groups in their actual enjoyment of social benefits, then government will consider particular measures to assist in redressing the balance”;

• reasonable co-operation, which states that the treaty is regarded by the Crown as establishing a fair basis for two peoples in one country. “Duality implies distinctive cultural development and unity implies common purpose and community”; and

• redress, in which the Crown ensures a process is provided for resolution of grievances arising from the treaty, be that through the courts, the tribunal or direct negotiation.

More sets of treaty principles were to appear. They included:

• NZ Maori Council to Court of Appeal 1987- 10 principles

• Crown to Court of Appeal 1987- 5 principles

• Waitangi Tribunal 1983-1988- 12 principles

• Royal Commission on Social Policy 1988—3 principles

• Hiwi Tauroa (former race relations conciliator) 1989- 4 principles

• Office of Treaty Settlements 1999- 4 principles

• Douglas Graham(in his book Trick or treaty) –11 principles

• Centre for Maori Studies Lincoln University 1994 –4 principles

• New Zealand Law Commission 1999-13 principles

• NZ Attorney General 2000 – 6 principles

• Minister of Health/Privy Council (undated) – 3 principles.

ACT leader David Seymour is promoting a three-clause treaty principles bill which says:

1. The government has the right to govern and there is one government.

2. We all have rights to “tino rangatiratanga”, or self-determination, and to property.

3. We all have “nga tikanga katoa rite tahi” or the same rights and duties.

These three principles would make up a Treaty Principles Bill, to be ratified by all New Zealanders by referendum, to be passed by Parliament into law, to represent Te Tiriti, the Maori treaty text, that chiefs debated and affirmed 184 years ago.

A Treaty Principles Act in this form would be a necessary constitutional turning point for New Zealand.

For the past 40 years, voters have been deliberately kept out of the loop on treaty policy with politicians and judges making questionable decisions behind closed doors.

Coalition partners National and New Zealand First have only agreed to support it through the first reading to select committee to which submissions from the public may be sent.

Rata is one of the few New Zealand scholars who is clear that there are actually two treaties of Waitangi – the 1840 “Articles” treaty and the 1986 “Principles” treaty.

“Astonishingly the parliamentary representatives who inserted the word ‘principles’ did not know what they meant. To include a word estranged from its meaning into legislation is an egregious political failure,” she wrote.

"The consequence of Parliament’s failure is a racially divided country and a group asserting co-governance rights," Rata wrote.

Such is the failure Seymour appears to be trying to fix.

The main criticism that he faces, that is that he is trying to “rewrite the treaty”, is straight disinformation, because the treaty has already been re-written, in 1986, quietly, without voter involvement.

Seymour has simply put the treaty issue up for debate, this time by everyone.

Sources

Rata, Elizabeth. Two treaties – the articles treaty and the principles treaty https://www.bassettbrashandhide.com/post/elizabeth-rata-two-treaties-of-waitangi-the-articles-treaty-and-the-principles-treaty?fbclid=IwAR1DJ3g76EhZmGWXRSo0BPWx7Q4j4Ee6B3L8dtVaCfIs425-7W7BLm5ncqI

Palmer, Geoffrey. New Zealand’s Constitution in Crisis. P80