Mike Butler: Principle 2 should affirm property rights

My submission just sent to the Justice Committee on Principles of the Treaty of Waitangi Bill calls for Principle 2 to be replaced with a principle affirming property rights.

Principle 2 should be phrased as “The Crown recognises, and will respect and protect, the rights of all the people of New Zealand, the possession of their lands, dwellings and all their property which they may buy, rent, and sell, as they wish”.

Having said that, my submission supports:

1. The objectives of the Principles of the Treaty of Waitangi Bill;

2. Principle 1, that the executive Government of New Zealand has full power to govern, and Parliament has full power to make laws;

3. Principle 3, that everyone is equal before the law and, without discrimination, is entitled equal protection and benefit of the law, and the equal enjoyment of the same fundamental human rights; and

4. having a binding referendum on the treaty principles and their place in our constitutional arrangements.

The reasons I oppose the current phrasing of both parts of Principle 2 are this:

Firstly, the phrasing of Principle 2(1), that “the Crown recognises, and will respect and protect, the rights that hapu and iwi Maori had under the Treaty of Waitangi/te Tiriti o Waitangi at the time they signed it” entangles what should be three clear principles on the treaty in legislation with problems associated with the two treaty texts appended to the Treaty of Waitangi Act.

Two conflicting interpretations of the Treaty currently exist.

The 1840 “articles” treaty clearly said that the chiefs ceded sovereignty, the Crown confirmed that everyone owned what they owned and chiefs could sell to the Crown land if they wished, and the Maori people were protected and became British subjects.

Evidence that the chiefs understood that meaning is recorded in the speeches on February 5, 1840. For instance, Hakiro of Ngatinanenane said: “We are not thy people. We are free. We will not have a governor”’

The 1980s “principles” treaty says something quite different.

It has come to mean that chiefs merely allowed a governor to govern British settlers while the chiefs could carry on being chiefs.

This interpretation came about after Waitangi Tribunal member Sir Hugh Kawharu re-translated the Maori text into English.

To be clear, the treaty was drafted in English and translated into Maori.

The word “sovereignty” in Article 1 was translated into “kawanatanga”.

The word “possession” in Article 2 was translated into “rangatiratanga”.

In his 1986 retranslation, Kawharu asserted that the chiefs might have understood “rangatiratanga” to mean “chiefly authority”.

This gave birth to a rangatiratanga dogma, the belief that “Maori” retain some sort of ongoing last say in matters when everyone in New Zealand behaves in a way that shows the elected government has the actual last say.

An example of this rangatiratanga dogma appears in Section 6 (7) of the Ngai Tahu Settlement Act 1998, which says:

in fulfilment of its Treaty obligations, the Crown recognises Ngai Tahu as the tangata whenua of, and as holding rangatiratanga within, the Takiwa of Ngai Tahu Whanui.

This gives the appearance that the Crown has accepted that Ngai Tahu and other iwi have some sort of on-going sovereignty when the treaty that their forebears signed 184 years ago says no such thing.

Secondly, the phrasing of Principle 2(2), which says that “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” further entangles what should be three clear principles in the unclarity of treaty settlement phrasing.

The problem with treaty settlement phrasing appears in Section 6 (7) of the Ngai Tahu Settlement Act which is quoted above. That section was invoked in a recent interview of ACT leader David Seymour by Jack Tame on Q&A (November 24, 2024).

On the show, Tame read out that section as quoted above but with the word “catchment” in brackets after “takiwa”.

He then asked Mr Seymour: “So do you accept that under your principle that Ngai Tahu has sovereignty over 90 percent of the South Island?”

Without agreeing or disagreeing Seymour said: “That would be a plain reading of what it says . . . that’s what a previous government signed up to in a treaty settlement”.

Tame then read out Article 2 of the treaty as phrased in the English text appended to the Treaty of Waitangi Act, which says:

Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish.

Then Tame said:

that’s tino rangatiratanga for Maori, a specific carve-out for Maori, not for all people.

But that’s not what the English text says. It’s what Jack Tame was telling David Seymour and viewers what he believed it means.

It is also what the Crown is telling us to believe that is what it means.

This is despite substantial evidence that it is merely a dogma based on a twisted and self-serving interpretation of the treaty.

The words “tino rangatiratanga”, “mana”, and “tangata whenua” were not translated in the above quote as stated by Jack Tame on national television.

Neither were they translated in Section 6 of the Ngai Tahu Claims Settlement Act 1998. Nor are they translated in the Section 8 Interpretation of Terms part of that Act.

What does “tino rangatiratanga” actually mean and does it mean that "Ngai Tahu has sovereignty over 90 percent of the South Island" as Jack Tame says?

If the notion of sovereignty describes the person or entity who, or which has the last say in all matters affecting the affairs of a state, what evidence is there that Ngai Tahu currently has the last say in all matters in 90 percent of the South Island and if not, is that what they are working towards, and what do private property owners in the South Island think about it?

That is part of the problem with treaty settlements. Add to that the extensive re-writing of New Zealand’s history in treaty settlements that has become part of New Zealand law.

I analysed treaty settlement details posted on the Office of Crown Maori Relations website, originally for the New Zealand Centre for Political Research. The list to June 30 this year shows 107 treaty settlements with a total of $4.6-billion worth of financial redress.

For more than 50 years, I have observed the development of treaty policy and saw the privileges and racial division that came with it.

I have seen successive governments resurrect some remaining tribal groups and create and fund a neo-tribal elite that is now claiming the sovereignty of New Zealand.

I agree with Mr Seymour’s observation that treaty policy has been created behind closed doors by an elite that jealously protects its privileges.

I also agree with Mr Seymour that he is NOT causing division with the Treaty Principles Bill. Instead, he is exposing the race-based division and privilege that has existed for a long time.

This submission is based on my experience as 16 years chief sub-editor of the Hawke’s Bay Herald Tribune and 34 years as a residential rental property owner and manager.

I have written two books on the treaty and the issues that have grown around it, being Tribes Treaty Money Power and The Treaty: Basic Facts. I contributed to Twisting the Treaty and One Treaty One Nation.

As a final word, I was shocked that Mr Seymour’s last-minute tinkering with his bill invoked treaty settlements and was bemused that as leader of the property rights party he totally ignored property rights in his career-defining bill.