Dr Oliver Hartwich: Lessons for Australia in NZ's polarising Treaty debate

For decades, Australian advocates for indigenous reconciliation have pointed to New Zealand’s Treaty of Waitangi as a model. Where Australia lacks a foundational agreement with its First Nations peoples, New Zealand has had one since 1840.

Yet current developments across the Tasman suggest that having a treaty is no guarantee of settling complex questions of indigenous rights. In fact, New Zealand’s experience shows how such documents can become focal points for ongoing – and often polarising – debates about national identity and governance.

The current debate reveals a deeper question: whether an ongoing and open-ended interpretation of a historical document best serves New Zealand’s future as a modern, multicultural society.

This was starkly illustrated last week as New Zealand’s Parliament held its first reading of the Treaty Principles Bill. The legislation, championed by ACT Party leader David Seymour, attempts to define the principles of the Treaty of Waitangi that have been referenced in New Zealand law since 1975 – but never actually defined by Parliament.

The history of these principles is worth examining. When Parliament passed the Treaty of Waitangi Act in 1975, it established the Waitangi Tribunal to hear Māori grievances. The legislation referred to Treaty principles but did not specify what they were.

Over subsequent decades, these principles have evolved through judicial interpretation, particularly following a 1987 Court of Appeal case which referred to the idea of Crown-Māori ‘partnership’.

This partnership concept has expanded into various aspects of governance. Treaty principles are now referenced in more than 50 pieces of legislation, affecting everything from resource management to local government decisions. Public entities must consider these principles in their operations, leading to consultation requirements and co-governance arrangements.

Seymour’s bill proposes three statutory principles. First, it affirms that the Government has full power to govern while Parliament has full power to make laws “in the best interests of everyone” and in accordance with maintaining a free and democratic society. Second, it recognises and protects Māori rights under the Treaty, but stipulates that these differ from general rights only in the context of specific Treaty settlements. Third, it establishes that everyone is equal before the law without discrimination.

These principles would mark a significant departure from how courts have interpreted the Treaty over recent decades. Where judicial decisions have emphasised concepts like Crown-Māori partnership, active protection of Māori interests and duties of consultation, Seymour’s principles would focus more squarely on parliamentary sovereignty and equality before the law.

The principles would only take effect if approved by referendum, yet the bill has provoked fierce opposition, with thousands joining protest marches and 42 King’s Counsels urging its withdrawal.

Both sides frame this as a debate about Treaty interpretation. Perhaps the real question is how New Zealanders want to live together today – a political and social question rather than one of historical or legalistic interpretations.

The political dynamics are complex. The bill emerged from coalition negotiations following New Zealand’s recent election, with centre-right National needing both ACT and New Zealand First to form government. While National agreed to support the bill to select committee stage, Prime Minister Christopher Luxon recently declared there was “nothing” he liked about it, stating “You do not negate, with a single stroke of a pen, 184 years of debate and discussion.”

Under Jacinda Ardern’s previous Labour government, Māori interests received increased recognition across public policy, including a separate Māori health authority and co-governance arrangements for water infrastructure.

These developments prompted significant pushback. In Parliament, Seymour argued his bill would democratise Treaty interpretation, giving all New Zealanders a say in principles that affect governance. “Where in the world,” he asked, “has it been a good idea to give citizens different rights based on ancestry?” He emphasised that the bill would not affect existing Treaty settlements or alter the Treaty text.

Opposition parties see things differently. Labour MP Willie Jackson condemned the bill as “a foul attempt to rewrite the constitutional framework,” while Green Party co-leader Chlöe Swarbrick argued it represents privileged resistance to equality. The Māori Party staged a protest in Parliament, performing a haka before walking out of the debate.

These disagreements reveal the bill’s central difficulty. It approaches the Treaty primarily as a contemporary governance document rather than acknowledging its historical and cultural significance to Māori. The proposed referendum would allow an 84% non-Māori majority to define the principles of a document viewed as sacred by a 16% minority.

Ironically, both the bill’s supporters and many of its critics share a vision of a New Zealand where all citizens can thrive regardless of ancestry. The difference lies in how to get there. Where Seymour proposes to achieve this through majority referendum and statutory definition, such an approach risks deepening rather than healing racial divisions. Using a referendum to redefine a minority’s treasured constitutional document could create precisely the kind of grievance that would make racial reconciliation harder to achieve.

This highlights a fundamental tension in liberal democracies: how to balance majority rule with the protection of minority rights. Minister of Justice Paul Goldsmith expressed this concern, calling it “a crude way to handle a very delicate subject” and suggesting Treaty issues should be addressed case by case.

While Parliament and protesters focus on constitutional principles, New Zealand faces pressing challenges in health, education, crime and economic opportunity. These affect all New Zealanders but Māori, due to socio-economic circumstances, often disproportionately. Yet the country’s political energy seems increasingly consumed by debates about Treaty interpretation rather than solving these immediate problems.

For Australian observers, these debates carry relevance as discussion continues about indigenous recognition. New Zealand’s Treaty is often cited as a model. Still, its current controversies suggest that having a historical treaty does not automatically resolve questions of indigenous rights in a modern democracy.

Until around 2017, New Zealand largely managed to balance Treaty obligations with practical governance. Recent years have seen increasing focus on racial identity and Treaty interpretation, creating a pendulum swing in race relations that has proved difficult to stabilise. Perhaps it is time for New Zealand to focus less on racial distinctions and more on building a future that works for all its citizens.

Looking forward another 184 years to 2204, would New Zealanders still define themselves primarily through an 1840 document? Or might they see it as marking the beginning of a journey that, through good times and bad, helped forge a nation where people of all backgrounds could build their lives, pursue opportunities and realise their aspirations?

Perhaps the real challenge is not endlessly debating interpretations of the past but building a future that works for all New Zealanders.

Dr Oliver Hartwich is the Executive Director of The New Zealand Initiative think tank. This article was first published HERE.