Barrie Davis: The Revised Treaty Principles Bill

The ACT Party Treaty Principles Bill promising equality for all New Zealanders has been eagerly anticipated by some. It has been suppressed by the National Party and New Zealand first, and vilified in the press which is always a good sign. But then it went terribly wrong and reinstated exclusive race based privileges – or institutionalized racism as I prefer to call it. What can we do to correct the problem?
On 10 October 2022, a year before the 2023 election, Nicole McKee put out a Press Release saying:

“ACT proposes that the next Government pass legislation defining the Principles of the Treaty, in particularly their effect on democratic institutions. Then ask the people to vote on it becoming law.

“It would define the Principles of the Treaty as.

1. The New Zealand Government has the right to govern New Zealand.

2. The New Zealand Government will protect all New Zealanders’ authority over their land and other property

3. All New Zealanders are equal under the law, with the same rights and duties.

“The great promise of New Zealand is that everyone’s equal. For generations people have travelled long distances to give their children a better tomorrow in this little country where everyone gets an equal chance.”

In February 2024, ACT proposed a Bill based on those three principles:

1. That the government has the right to govern for all New Zealanders

2. That the government will honour all New Zealanders in the chieftainship of their land and all their property

3. That all New Zealanders are equal under the law with the same rights and duties

The Bill is part of the coalition agreement between ACT and National, which promised to introduce a Bill based on existing ACT policy and support it to a select committee as soon as practicable.

But Cabinet recently approved a revised Bill which is quite different to the ACT policy given above. Note how the Government still has full power to govern, yet the people’s rights now differ as specified by the Government:

1. 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.

2. Rights of Hapū and Iwi Māori: The Crown recognises the rights that hapū and iwi had when they signed the Treaty. 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 legislation, Treaty settlements, or other agreement with the Crown.

3. 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.

The problem I have with that is articulated by Janet Wilson (The Post, 14 Sept, here):

Forget any rights the Treaty principles infer; if passed, this would enshrine the Treaty into law. Rather than restricting Treaty rights, which was Seymour’s intent in introducing the bill, it would expand them.

It’s hard to know if, in trying to make concessions to make the bill more appealing the ACT leader lost sight of the political consequences; or, as Politik’s Richard Harman opined this week, that the hapu and iwi clause was the trade-off Seymour bargained with to get a referendum over the line.

But the clause is an open invitation to Treaty lawyers and judges to advocate and decree what rights hapu and iwi had in 1840, then enshrine those protections into law.

Here are a couple of obvious examples:

First example. There is conflict within Principle 2, which says, “2. Rights of Hapū and Iwi Māori: The Crown recognises the rights that hapū and iwi had when they signed the Treaty.” When the Chiefs signed the Treaty, slavery, cannibalism and infanticide were customary practices which continued until the British finally stopped them around 1860, yet the Bill continues; “The Crown will respect and protect those rights.” They contradict that when they then say “Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreement with the Crown.” The customary rights the Maoris had when the Chiefs signed the Treaty are not applicable today and should not be ratified by our representative Parliament.

Second example. There is also conflict between Principles 2 and 3. Principle 2 says there will be different rights, “2. Rights of Hapū and Iwi Māori: Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreement with the Crown”; and Principle 3 says our rights will be the same, “3. 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.”

It’s no use saying, “Oh, what it means is …” What it means is what it says, which is incoherent. The author is talking out of both sides of the mouth in an attempt to appease both sides of the debate. It’s a mess and the Waitangi Tribunal pettifoggers will be all over it. It occurs to me that it is intentionally being left up to the Waitangi Tribunal to figure out what it means, like the Treaty of Waitangi Act 1975, which has been a disaster. We will be out of the frying pan into the fire. Even if it were to go to a referendum it would be foolish to support it. Cabinet has set this up to fail.

I do not now agree with the Bill, the jurists will have a field day as Janet Wilson says. The next Ardernist government will use it to conclude the descent of New Zealand into a Maori ethnostate somewhere between Samoa and South Africa. It seems to me that the revised Bill is a miscreation and there is a risk that it will deliver the opposite of what it was intended to do.

My position is that I want no exclusive rights for Maoris. Why should Maoris get exclusive rights and not Samoans, or Chinese, or Scots? What would be the response if the New Zealand arrangement were applied to the indigenous people of England? I want the Treaty put in an historical context where it belongs which entails that its provisions are removed from legislation.

Whether you agree with me on that or not, I hope you at least agree that if we are going to have a sound debate and make submissions, allowance should be made to include my position.

Yet here is the situation I now find myself in regarding making a submission on the revised Treaty Principles Bill:

If I don’t make a submission that will be taken to mean that I have no interest in the issue which will disincentivize proceeding to a referendum.

If I make a submission and argue against the Bill because of the revisions that will be taken to mean that I do not want the Bill to proceed. That will also disincentivize proceeding to a referendum.

If I make a submission and argue in favour of the revised Bill conditional on it being put back to what it was, that will never happen and my submission will be negated and so a waste of everyone’s time. If I do not make that condition but instead merely point it out as a problem, my submission will be taken to mean that I endorse the revised Bill. I would then have to rely on it not proceeding to a referendum and being passed. But it may just happen that after the first reading the revised Bill could proceed to a referendum. It has occurred to me that David Seymour could be stringing it out until the next election at which time there may an opportunity to include a referendum in his next coalition agreement. But if the revised Bill is passed into legislation, that is not what I want and my submission would have contributed to that.

So my position has been excluded from consideration. If I make a submission, it could only be as an explanation such as that I have given here. But that would be with respect of the revised Bill that is being considered and would not address the problem of exclusive rights for Maoris which is what I understood the initial Bill would address.

At best, I would just be making the point, to which no one will pay any attention, that the revisions of the Bill stymied the debate that the referendum was intended to ratify: It was not a public debate; the Cabinet had the debate for us.

From my position, therefore, the revised Treaty Principles Bill is useless and a waste of everyone’s time.

I think that there are two things we need to do instead:

The first is to remove the Waitangi Tribunal provisions from legislation as proposed by Winston Peters and the Principles of the Treaty of Waitangi Deletion Bill 2006 (see David Farrar, here). The way we the people can do that is to show that the Waitangi Tribunal provisions are fallacious and, as they are based on the reconstructed back-translation of the Treaty into English by Professor Sir Hugh Kawharu, then the first step is to show how Sir Hugh’s translation is mistaken. If we take down Kawharu’s translation of the Treaty, we take down the Waitangi Tribunal and with them the provisions they have had installed in our legislation.

The second thing we need to do is reclaim our sovereignty. Who is Christopher Luxon to tell us we cannot have a referendum? That is worse than Jacinda Ardern telling us we have to have a lockdown and then us doing what we are told. We all know why Prime Minister Luxon does not want a referendum; it’s because he knows we do not want what he is doing. It needs to be brought home that we the people are the source of sovereignty and that our representative Parliament exists to serve us, not the other way around. Certainly we need an authority to implement boundaries, but that authority needs to take their steer from us. We need to look into our constitutional rights and ensure that a referendum is a necessary part of our democracy and that it is our choice to invoke one should we so desire.

Before I proceed, I would very much like your opinion on this in the Comments section.

Barrie Davis is a retired telecommunications engineer, holds a PhD in the psychology of Christian beliefs, and can often be found gnashing his teeth reading The Post outside Floyd’s cafe at Island Bay.