Ele Ludemann: National’s alternative to Treaty Principles Bill

National has been roundly criticised from one side for allowing the Treaty Principals Bill to go to the select committee and the other for not letting it proceed beyond the second reading.

There might have been less criticism from those concerned about the proliferation of undefined Treaty principles in legislation has the party been more clear about its reasoning and explained its alternative, as Justice Minister Paul Goldsmith did on Thursday:

The outcome of the vote today has been known since the Treaty principles bill was introduced. National has consistently said we’ll not support it into law, fundamentally because we regard the bill, which seeks to impose a particular interpretation of the Treaty of Waitangi by simple majority and referendum, as a crude way to handle a very sensitive topic. National believes in equal citizenship and equal opportunity for all New Zealanders, and we hold that there are better ways to defend those principles than through this bill.

Equal citizenship and equal opportunity are the third of the party’s values laid out in its constitution.

So it was clear, from the beginning, that the Treaty principles bill was not going to pass. And yet it still generated 300,000 submissions. Of those, more than 16,000 New Zealanders wanted to come and talk to the select committee, and more than 500 actually did. In the meantime, some 40,000 people marched to Parliament to oppose it, and it’s dominated two summers.

So what are we to make of this? Clearly, it shows that many people feel passionately about the topic, and I want to acknowledge the effort so many people put in to expressing their views. Some of the submissions were truly remarkable. It’s equally true that the bill has provided a convenient vehicle for political campaigns, on all sides. And that is politics. We’ll hear all sorts of hyperbole today, as we already have from the Leader of the Opposition, about how terrible it is for National to allow this bill to even be introduced. That is just froth and spray. Coalitions require compromises. National opposed the bill and would have preferred it not to have gone forward. ACT wanted to have the bill passed into law. None of us got what we wanted. That is life under MMP.

Our country is not so fragile that we can’t withstand a debate about the role of the Treaty. And we certainly won’t take lectures from Labour about division. I’ll never forget seeing Willie Jackson on TV casually declaring that democracy in New Zealand had changed, as his Government was pushing an agenda of co-governance on public servants. And all of us were wondering what on earth he meant and when we had discussed it, and when the people of New Zealand had been asked whether they wanted their democracy changed.

National opposes this bill, but we do not oppose the open and frank discussion about the Treaty of Waitangi in our laws and within the context of a modern democracy. That discussion is alive and well and will continue. The critical thing is that we try our best to conduct that conversation with good grace. We live in a turbulent world, with examples every day of how societies can tear themselves apart. For all our faults and our disagreements, we hold things together very well in this country, and I have every confidence that we can continue to find a way through.

Parliament first referred to the principles of the Treaty in the 1970s, but never defined them. The courts stepped into that vacuum, as we know, and over the past 30 years, principles of the Treaty such as the concept of partnership have been given greater weight. The interpretations of the court are not gospel; they should be debated. But if enacted, the Treaty principles bill would have short-circuited that debate. Parliament would simply have set down its interpretation of the Treaty and then sought a majority of the public to confirm that in the referendum. That would have, at the stroke of a pen, unwound more than 30 years of jurisprudence.

And as I said at the first reading of the bill, there will be a wide variety of views within Māori, just as there are amongst any other group. But those opposed to the changes would likely conclude that fundamental change was being imposed upon them by a majority if it were to pass, and that would risk stoking an already keen sense of grievance. That’s why National hasn’t supported this bill. We continue to believe there are better ways to address the many legitimate questions about the role of the Treaty in our democracy today—to progress with the numerous specific changes that we’re making case by case, issue by issue.

The guiding principal is that, in our efforts to honour Treaty of Waitangi commitments, Treaty settlements, and to acknowledge tangata whenua, we should never lose sight of the basic expectations of people living in a modern, democratic society, such as equal voting rights, equality before the law, and, broadly speaking, an equal say in matters affecting their lives and in the world around them. There can be a tension between those two things, between honouring commitments to Māori flowing from the Treaty and the basic expectations of equality in a modern democracy. This is a tension that we can’t just gloss over and ignore. Our proposition is that as a nation, we should be serious in our commitment to the first, but, in doing so, should be careful never to lose sight of, or drift too far from, the second.

People, ultimately, have choices: where to live and where to invest. For our country to continue to succeed, those basic expectations of equality before the law must remain. This is not a topic, I don’t think, that lends itself to neat, tidy, single solutions; it has to be worked through issue by issue. That’s why we’ve reasserted the principle that healthcare should be delivered on the basis of need alone. That’s why we’re pushing back against the previous Government’s move against equal voting rights in local government. It’s why we’ve unwound co-governance arrangements in core public services and a separate Māori health authority. It’s why we’ve also taken the unusual step of introducing legislation to overturn the marine and coastal area Act—a decision in the Court of Appeal. We’re now considering following the Supreme Court’s decision in terms of what steps are necessary, if any. That’s why we’re embarking on the challenging task of reviewing the Treaty references in existing legislation, to ensure that they’re clearer about what Parliament does and doesn’t mean—or to remove the Treaty references if there is no clear reason for having them. None of this is easy.

It’s not easy but it is necessary. Legislation with undefined or ill-defined references is lazy legislation.

At the same time, we’re committed to continuing and completing the Treaty settlements process that was begun in the 1990s—around two-thirds of the settlements have been completed; many under previous National Governments. It has been a bipartisan effort across many decades and has involved thousands of Māori up and down the country, studying history, negotiating, forming new structures to manage settlements. Successfully, we have reestablished strong financial bases, confidence, and ambition.

The settlements have never been an exercise in achieving perfection. Many Māori complainants will rightly point out that the settlement payments reflect only a fraction of what was lost, and that’s true. Equally, the process requires today’s iwi to spend sums running to the billions, and to agree to bespoke arrangements in specific places, often because of events going back as far as 180 years or earlier. So Treaty settlements require grace on both sides, as well. Treaty settlements and the continued substantial investments in preserving te reo, Māori culture, and expanding their reach alongside investment in a great variety of Māori solutions to the challenges we face are all part of the effort we make as a country to address the injustices of the past, to recognise our unique history and blended culture, and to build a better future. And we’re proud of those efforts. And this Government will never lose sight of the reality that the things most Māori want are the same as most other New Zealanders want: they want a strong economy that will deliver jobs and incomes that will sustain our standard of living, they want decent housing, they want to feel safe in their communities, for their kids to have access to a great education that will set them up to succeed in the modern world, and they want to have access to quality healthcare when they get sick.

The reality is, in each of those areas, Māori, on average, currently have worse outcomes than the average New Zealander, and we want to work together with Māori New Zealanders to change that. The work we’re doing to fast track consents for infrastructure and new industries across the country are designed to raise income for Māori and all New Zealanders alike. And that’s why Māori businesses are keen to be part of it. The effort to restore law and order and deal with truancy will help Māori most, because they are more likely to be victims of crime and to not attend school regularly. The amazing progress we’ve made to reduce smoking rates and to increase immunisation rates will help Māori most. When we think of a referendum in 2026—[Interruption]

SPEAKER: Sorry, that member can take herself out of the House if that continues.

Hon PAUL GOLDSMITH: Thank you, Mr Speaker. When we think of a referendum in 2026, our preference is for the election to be a referendum on this Government’s success, or otherwise, in making progress on those massive challenges. And I have every confidence that we, together, will make genuine progress in these areas. Thank you very much, Mr Speaker.

If the Bill had passed, been supported in a referendum and the principles as defined in the Bill became law it would be very easy for a future government to amend or even axe it.

Doing what National is doing is slower but will make it much more difficult to change than amending or axing an Act would be.

This won’t please those who saw a simple solution in the Treaty Principles Bill, but complex issues aren’t easily addressed with simple solutions and enduring solutions are better than temporary ones that could be easily changed.

Ele Ludemann is a North Otago farmer and journalist, who blogs HERE - where this article was sourced.