Dr Don Brash: Time to submit on the Treaty Principles Bill fast running out

This Parliament is being asked to pass a significant number of important Bills during the course of its three-year life – Bills related to resource management planning, to infrastructure, to education and to health. But few Bills are of greater significance than the Treaty Principles Bill which David Seymour has sponsored.

Why? Because it goes to the very heart of our constitution. And there are only days left in which to express your opinion: submissions on the Bill close at 11.59 p.m. next Tuesday, 7 January.

The most surprising thing about the Bill is that the only party in Parliament which supports it is the ACT Party.

The constitution of the National Party commits it to “equal citizenship”, and over the years various National Party leaders have strongly endorsed that principle. And yet the Prime Minister, responding to a question at a post-Cabinet press conference, said that there is “nothing” in the Treaty Principles Bill with which he agrees.

How on earth can that be true? Has he not read the Bill?

The Bill asserts three principles.

The first states that the Government “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.”

It’s extraordinarily hard to see how any New Zealander, let alone the Prime Minister, could object to that principle.

A few radicals claim that Maori chiefs didn’t cede sovereignty in signing the Treaty and haven’t ceded sovereignty since. But the Prime Minister is on record as saying that he understands the Maori chiefs did in fact cede sovereignty in signing the Treaty, and the chiefs who gathered at Kohimarama in 1860 were in no doubt that they had ceded sovereignty to the Queen.

Sir Apirana Ngata, perhaps the greatest Maori leader since 1840, was in no doubt that sovereignty had been ceded, and while Chris Hipkins can say with a straight face that Maori chiefs did not cede sovereignty in signing the Treaty in 1840, he is nevertheless on record as acknowledging that the Crown is sovereign now.

So there can be no basis for objecting to the first of the three principles set out in the Bill. Those radicals who disagree with that first principle, asserting that the Government does not have the unfettered right to govern, are away in la-la land, dreaming of a world where the elected Government has to seek approval from some unspecified Maori body in “partnership” with the elected Government.

But as David Lange said in his famous Bruce Jesson Memorial Lecture in November 2000,

“Democratic government can accommodate Maori political aspirations in many ways. It can allocate resources in ways which reflect the particular interests of Maori people. It can delegate authority, and allow the exercise of degrees of Maori autonomy. What it cannot do is acknowledge the existence of a separate sovereignty. As soon as it does that, it isn’t a democracy. We can have a democratic form of government or we can have indigenous sovereignty. They can’t coexist and we can’t have them both.”

The third principle set out in the Treaty Principles Bill asserts that “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.”

Again, it is clear that some Maori radicals want to live in a society where anybody with the slightest smidgen of Maori ancestry has some kind of preferential constitutional status – a status which entitles them to a veto on planning rules, for example – but it’s hard to see why the Prime Minister would subscribe to such a view, or indeed why any other New Zealander would want to live in such a feudal society where some, by virtue of birth, have a preferential constitutional status.

And this leaves us with the second principle, entitled the “rights of hapu and iwi Maori”. That notes that “the Crown recognizes, and will respect and protect, the rights that hapu and iwi Maori had under the Treaty of Waitangi at the time they signed it. If those rights differ from the rights of everyone, it will only be when agreed in the settlement of a historical treaty claim under the Treaty of Waitangi Act 1975.”

It is possible to see why some New Zealanders without Maori ancestry might be concerned about this clause: it raises the possibility that some New Zealanders will enjoy certain rights that other New Zealanders do not have. But Maori New Zealanders can surely have no objection to that clause – the Bill would guarantee them all the rights they had in 1840, and such additional rights that Parliament had explicitly determined to give particular groups of Maori – not Maori New Zealanders in general – in compensation for some previous breach of those rights.

To remind, this is a Bill in which the Prime Minister sees nothing of value.

In a scientific poll undertaken by Curia Market Research at the beginning of December, people were asked who, in their opinion, should determine the meaning of the principles of the Treaty of Waitangi: Parliament, a referendum, the judiciary, or the Waitangi Tribunal. Of those who responded, 20% were undecided on that issue. Of those who had an opinion, 68% favoured either Parliament or a referendum being the final arbiter of the meaning of the principles of the Treaty. Among those inclined to give their party vote to National and who had an opinion, 80% wanted the interpretation of the principles of the Treaty to be in the hands of either Parliament or a referendum; and corresponding figures for those inclined to vote NZ First and ACT were 85% and 94% respectively.

In other words, it seems beyond any reasonable doubt that people who support one or other of the Government parties are overwhelmingly in favour of either Parliament or a referendum being the final arbiter of what the principles of the Treaty mean in today’s world. This rather strongly suggests that the Prime Minister is out of step with the National Party’s own supporters.

If you haven’t yet made a submission in favour of the Treaty Principles Bill, please do so urgently – you have just days before submissions close on 7 January.

Dr Don Brash, Former Governor of the Reserve Bank and Leader of the New Zealand National Party from 2003 to 2006 and ACT in 2011. Don blogs at Bassett, Brash and Hide - where this article was sourced