When he told journalists on Friday that the select committee report showing 90 per cent of submitters were opposed had “redoubled” his commitment to ensuring all New Zealanders were equal, with universal rights before the law, he made it clear Act will take that proposition to next year’s election as a policy plank.
He has previously framed the debate as turning on: “Whether our future lies with different rights based on ancestry, or whether we want to be a modern, multi-ethnic liberal democracy where every New Zealander has the same rights.”
Seymour has reason to remain optimistic. Analysis of submissions to the End of Life Choice Bill showed 90 per cent were opposed but when it was put to a referendum in 2020 it passed with 65 per cent support.
National’s undisguised glee last week at the imminent demise of the Treaty bill — including the Māori Development Minister, Tama Potaka, crowing, “Nehu [burial] day is coming, folks. Nehu day is coming for the Treaty Principles Bill. Can’t wait to see that nehu day” — looks very odd for a party that professes in its declaration of principles to be in favour of “equal citizenship and equal opportunity”.
Far from enshrining the principle of equal citizenship, the authorised interpretations of the Treaty / Te Tiriti over the past few decades have led to gifting those with Māori ancestry significant advantages in education (including preferential entry to Medical Schools); in political power (via unelected representatives on councils); and in many jobs in the public service (via DEI policies), among others.
The overwhelming opposition to the bill seen at the select committee says nothing, of course, about the views held by the majority of New Zealanders. That they would vote in a referendum to perpetuate such advantages for ethnic clans comprising 17 per cent of the population defies logic — unless, of course, turkeys have suddenly decided en masse to vote for Christmas. Why would anyone who cared about fairness and democracy endorse their neighbour’s child having preference over theirs on the strength of early 19th Century documents whose meaning and significance have never been agreed on and by virtue of some small splash of Māori blood?
This is, of course, why no prominent figures who oppose Seymour’s Treaty bill have come out publicly in favour of a referendum. Jubilant critics can crow all they like about 90 per cent opposition but until that figure is backed by a majority in a referendum, the victory remains hollow. In fact, it might turn out to be Pyrrhic.
One of the repeated refrains among opponents of the bill has been to remind New Zealanders who don’t have Māori ancestors that they are guests in their own country — essentially second-class citizens residing here under the classification of “Tangata Tiriti”. In PR terms, this must be one of the most disastrous and counter-productive tactics imaginable.
Thus Te Pāti Māori MP Mariameno Kapa-Kingi, who sat on the Justice select committee, asked businessman Roger Gower at the end of his submission in support of the bill whether he understood that his ancestors had been “invited and allowed to live here” by virtue of Te Tiriti — with the clear implication he is a guest here despite being a native New Zealander.
Gower replied: “So the people who arrived here before 1840 — did they receive that permission?”
Realising she was snookered, Kapa-Kingi immediately shut down further discussion by declaring imperiously that she was the one who got to ask the questions.
Also, it is not widely commented on but the parade of the good and great who submitted against the bill might end up having the opposite effect to that intended. The likes of Dame Jenny Shipley, Sir Geoffrey Palmer and Chris Finlayson are widely identified as having helped to put the country into the polarised racial mess we are in.
Ordinary voters mostly don’t like to be told what to think by their betters — something John Key found out to his cost as he rolled out All Blacks and other prominent Kiwis to support his campaign to change the nation’s flag in two referendums.
Ironically, the submission that might boost Seymour’s cause most significantly over time came from another grandee, Dame Anne Salmond. Reprising one of her favourite themes, she argued that anyone — including Seymour — who tried to instruct people “about the basic principles of an important constitutional document that they couldn’t even read” should lead them to be regarded “as a lunatic or a fool”.
Unfortunately, even the eminent jurist and Law Lord Sir Robin Cooke himself — whose view in 1987’s “Lands” case that the Treaty relationship could be seen as “akin to a partnership” that led to the doctrine of co-governance — could not read te reo.
This is something Salmond noted in 2021: “Instead of reading Te Tiriti in the original, the [Lands case] judges relied on an array of translations into English. In Europe, it would be unthinkable to embark upon the legal interpretation of a significant constitutional document (in French, say, or German) without a sophisticated grasp of its language and historic context.”
If her thesis is to be taken seriously, most of our Treaty jurisprudence over the past 40 years should be thrown out given that only a bare handful of our judges have been able to read te reo with the sort of “sophisticated grasp” Salmond deems necessary.
Perhaps the overwhelming impression gained from watching a selection of the 529 oral submissions and the debate they have sparked is the impossibility of using such a hotly contested agreement made 185 years ago — with one version in English and the other in Māori that many commentators judge to be irreconcilable — as any sort of constitutional basis for a modern nation.
Even experts seem unable to agree on whether the Treaty / Te Tiriti is a contract, a compact, a “sacred covenant”, or more akin to a statement of goodwill similar to that expressed in marriage vows. Or even whether it is technically a treaty. Or the nation’s founding document.
David Lange’s views in his 2000 Bruce Jesson lecture have been frequently cited on social media in the debate: “The Treaty cannot be any kind of founding document, as it is sometimes said to be. It does not resolve the question of sovereignty, if only because one version of it claims one form of sovereignty and the other version claims the opposite… The Treaty cannot even resolve the argument among Māori themselves in which one side maintains that you’re a Māori if you identify as such, and the other claims that it’s your links to traditional forms of association which define you as Māori.
“As our increasingly dismal national [Waitangi] day continues to show, the Treaty is no basis for nationhood. It doesn’t express the fundamental rights and responsibilities of citizenship, and it doesn’t have any unifying concept.”
Among the most interesting commentary arising from the debate was by former Labour Cabinet minister and Act leader Richard Prebble, in response to Salmond’s claim that “anyone who does not speak te reo who opines on the Treaty of Waitangi should be regarded as a ‘lunatic or fool’.”
He wrote on Newsroom regarding his experience negotiating a $US350 million contract in China, when “none of our engineers spoke Chinese [and] none of the provincial officials spoke English”.
Despite the fact “there are English terms for which there are no Chinese equivalents”, a legal contract was concluded through the work of translators “relying on the English text to express the agreement”.
Prebble wrote: “Anne Salmond is not a lawyer. I am. If the [Waitangi] tribunal is right and the chiefs and the governor misunderstood each other so there are two completely different treaties, then there was no agreement at Waitangi. There is a legal principle of ‘misunderstanding’. If two parties completely misunderstand each other, then there is no ‘meeting of the minds’ (consensus ad idem), which is essential for a valid contract.
“This concept applies in treaties. The principle is found in the Vienna Convention on the Law of Treaties (VCLT) 1969.
“‘Article 48 of the VCLT – Error: A treaty may be invalidated if a party entered into it based on an essential mistake concerning a fact or situation …’
“Either the chiefs and the governor reached an agreement, and we have one Treaty, or there was no consensus ad idem and there is no Treaty.”
It may turn out that the push by Māori nationalists to convince the public the chiefs who signed the Treaty understood its articles to mean something significantly different to those presented by the Crown in the English version will seriously backfire on them.
And, lest we forget, Governor William Hobson signed Te Tiriti on behalf of the Crown despite it being written in a language he could neither read nor speak.
Graham Adams is an Auckland-based freelance editor, journalist and columnist. This article was originally published by ThePlatform.kiwi and is published here with kind permission.
Seymour has reason to remain optimistic. Analysis of submissions to the End of Life Choice Bill showed 90 per cent were opposed but when it was put to a referendum in 2020 it passed with 65 per cent support.
National’s undisguised glee last week at the imminent demise of the Treaty bill — including the Māori Development Minister, Tama Potaka, crowing, “Nehu [burial] day is coming, folks. Nehu day is coming for the Treaty Principles Bill. Can’t wait to see that nehu day” — looks very odd for a party that professes in its declaration of principles to be in favour of “equal citizenship and equal opportunity”.
Far from enshrining the principle of equal citizenship, the authorised interpretations of the Treaty / Te Tiriti over the past few decades have led to gifting those with Māori ancestry significant advantages in education (including preferential entry to Medical Schools); in political power (via unelected representatives on councils); and in many jobs in the public service (via DEI policies), among others.
The overwhelming opposition to the bill seen at the select committee says nothing, of course, about the views held by the majority of New Zealanders. That they would vote in a referendum to perpetuate such advantages for ethnic clans comprising 17 per cent of the population defies logic — unless, of course, turkeys have suddenly decided en masse to vote for Christmas. Why would anyone who cared about fairness and democracy endorse their neighbour’s child having preference over theirs on the strength of early 19th Century documents whose meaning and significance have never been agreed on and by virtue of some small splash of Māori blood?
This is, of course, why no prominent figures who oppose Seymour’s Treaty bill have come out publicly in favour of a referendum. Jubilant critics can crow all they like about 90 per cent opposition but until that figure is backed by a majority in a referendum, the victory remains hollow. In fact, it might turn out to be Pyrrhic.
One of the repeated refrains among opponents of the bill has been to remind New Zealanders who don’t have Māori ancestors that they are guests in their own country — essentially second-class citizens residing here under the classification of “Tangata Tiriti”. In PR terms, this must be one of the most disastrous and counter-productive tactics imaginable.
Thus Te Pāti Māori MP Mariameno Kapa-Kingi, who sat on the Justice select committee, asked businessman Roger Gower at the end of his submission in support of the bill whether he understood that his ancestors had been “invited and allowed to live here” by virtue of Te Tiriti — with the clear implication he is a guest here despite being a native New Zealander.
Gower replied: “So the people who arrived here before 1840 — did they receive that permission?”
Realising she was snookered, Kapa-Kingi immediately shut down further discussion by declaring imperiously that she was the one who got to ask the questions.
Also, it is not widely commented on but the parade of the good and great who submitted against the bill might end up having the opposite effect to that intended. The likes of Dame Jenny Shipley, Sir Geoffrey Palmer and Chris Finlayson are widely identified as having helped to put the country into the polarised racial mess we are in.
Ordinary voters mostly don’t like to be told what to think by their betters — something John Key found out to his cost as he rolled out All Blacks and other prominent Kiwis to support his campaign to change the nation’s flag in two referendums.
Ironically, the submission that might boost Seymour’s cause most significantly over time came from another grandee, Dame Anne Salmond. Reprising one of her favourite themes, she argued that anyone — including Seymour — who tried to instruct people “about the basic principles of an important constitutional document that they couldn’t even read” should lead them to be regarded “as a lunatic or a fool”.
Unfortunately, even the eminent jurist and Law Lord Sir Robin Cooke himself — whose view in 1987’s “Lands” case that the Treaty relationship could be seen as “akin to a partnership” that led to the doctrine of co-governance — could not read te reo.
This is something Salmond noted in 2021: “Instead of reading Te Tiriti in the original, the [Lands case] judges relied on an array of translations into English. In Europe, it would be unthinkable to embark upon the legal interpretation of a significant constitutional document (in French, say, or German) without a sophisticated grasp of its language and historic context.”
If her thesis is to be taken seriously, most of our Treaty jurisprudence over the past 40 years should be thrown out given that only a bare handful of our judges have been able to read te reo with the sort of “sophisticated grasp” Salmond deems necessary.
Perhaps the overwhelming impression gained from watching a selection of the 529 oral submissions and the debate they have sparked is the impossibility of using such a hotly contested agreement made 185 years ago — with one version in English and the other in Māori that many commentators judge to be irreconcilable — as any sort of constitutional basis for a modern nation.
Even experts seem unable to agree on whether the Treaty / Te Tiriti is a contract, a compact, a “sacred covenant”, or more akin to a statement of goodwill similar to that expressed in marriage vows. Or even whether it is technically a treaty. Or the nation’s founding document.
David Lange’s views in his 2000 Bruce Jesson lecture have been frequently cited on social media in the debate: “The Treaty cannot be any kind of founding document, as it is sometimes said to be. It does not resolve the question of sovereignty, if only because one version of it claims one form of sovereignty and the other version claims the opposite… The Treaty cannot even resolve the argument among Māori themselves in which one side maintains that you’re a Māori if you identify as such, and the other claims that it’s your links to traditional forms of association which define you as Māori.
“As our increasingly dismal national [Waitangi] day continues to show, the Treaty is no basis for nationhood. It doesn’t express the fundamental rights and responsibilities of citizenship, and it doesn’t have any unifying concept.”
Among the most interesting commentary arising from the debate was by former Labour Cabinet minister and Act leader Richard Prebble, in response to Salmond’s claim that “anyone who does not speak te reo who opines on the Treaty of Waitangi should be regarded as a ‘lunatic or fool’.”
He wrote on Newsroom regarding his experience negotiating a $US350 million contract in China, when “none of our engineers spoke Chinese [and] none of the provincial officials spoke English”.
Despite the fact “there are English terms for which there are no Chinese equivalents”, a legal contract was concluded through the work of translators “relying on the English text to express the agreement”.
Prebble wrote: “Anne Salmond is not a lawyer. I am. If the [Waitangi] tribunal is right and the chiefs and the governor misunderstood each other so there are two completely different treaties, then there was no agreement at Waitangi. There is a legal principle of ‘misunderstanding’. If two parties completely misunderstand each other, then there is no ‘meeting of the minds’ (consensus ad idem), which is essential for a valid contract.
“This concept applies in treaties. The principle is found in the Vienna Convention on the Law of Treaties (VCLT) 1969.
“‘Article 48 of the VCLT – Error: A treaty may be invalidated if a party entered into it based on an essential mistake concerning a fact or situation …’
“Either the chiefs and the governor reached an agreement, and we have one Treaty, or there was no consensus ad idem and there is no Treaty.”
It may turn out that the push by Māori nationalists to convince the public the chiefs who signed the Treaty understood its articles to mean something significantly different to those presented by the Crown in the English version will seriously backfire on them.
And, lest we forget, Governor William Hobson signed Te Tiriti on behalf of the Crown despite it being written in a language he could neither read nor speak.
Graham Adams is an Auckland-based freelance editor, journalist and columnist. This article was originally published by ThePlatform.kiwi and is published here with kind permission.
26 comments:
All of the above makes it more galling that National and NZ First won’t back Seymour. Racial bias is breaking NZ apart, hence the brain drain to Australia and beyond.
The Treaty Principles Bill is very different from the End of Life Choice Bill, so you can't expect them to be treated the same. With the former, the number of submissions have nothing to do with the Bill's popularity. Also, just because someone is against the Bill doesn't mean they disagree that we are equal.
The problem with the Bill is that it focuses on Treaty principals, and as soon as you do that you are into a black hole. The only answer for race relations in NZ is to scrap the Treaty of Waitangi Act.
If you squint your eyes a wee bit, nationals 'potaka'-looks like 'harawira'.
The only way the Maorification of our country will end is at a parliamentary level. At present , there is no will on the part of the majority of our politicians to do so. Under Luxon this will continue. He fully believes in it as does Potaka. I know young people who are now taking extra, outside the mainstream education system, "Te Reo" courses because they have been told their future employment will depend upon it. Most people have no idea what is going on in the shadows.
I don't have a problem with Maori culture but I do have a problem with being relegated to second class citizen status. It is unfathomable why the majority of our politicians, teachers, university lecturers, lawyers and even doctors who are not "part-Maori" can agree with this as it will affect them all in the future as well. Maori culture was Stone Age and brutal and not benign as it is portrayed now.
Now clear that the 2026 election will turn on this issue - whatever the state of the economy. NZ voters feel deeply insulted by arrogant MPs and judges.
How will NZ move to a prosperous future if every time we look to the future we go back 200 years in the past
Easy: such people have a lot to lose by challenging this version - or, they are " indoctrinated" and truly believe they hold the moral high ground. They never speak of a 2-tier society based on cultural apartheid - only of the "social justice of indigenization." This way, they hope to stay on the winning side. A rude shock is coming.
The history of politics in this country suggest that it should come as no surprise when individual politicians vote according to their survival instincts at the time. Most talk about the moral aspects of legislation being proposed but when it comes to the crunch, their support is usually based on naked self interest.
In fact it is rare to see a principled stance on any major issue where the future of New Zealand is at stake - which is probably the main reason why David Seymour’s Bill is supported by a silent majority and, knowing that, why the Nats and NZ First will most likely reverse their policy position regarding the Bill in the lead up to the next Election.
If they don’t we are buggered big time.
The British didn't really care much about the treaty--they made dozens of such treaties around the world with various chiefs. Hence its tattered condition. Look at the condition of other founding documents, including Magna Carta. British disinterest in the document is the true 1840 context.
If the so called 90% are in favour of scrapping the Bill, surely they are so confident that they represent the majority, that a Referendum would confirm their opinion.
Bring it on and let's prove them to be so wrong !
MfK
On analysis, we ARE buggered
If you have come here from NZCPR, all the pollies email addresses are linked-get emailing, get your friends emailing.
I know it feels like ******* the wind, but let your elected pissant party-line-towing representatives know how the 'common person' feels (unless your a flake that voted for the type that got us here/keeps us here).
Hey Clive - I sincerely hope your right however Key, English, Shipley and Finlayson will be winding up Luxon (and the person who replaces him) to keep the status quo. And in doing so it will be goodbye National hello ACT.
Another key point - the term Rangatiratanga was invented by missionaries and wasn't a Maori word at that time, so again, Anne Salmond's argument is proved false.
Impossible to advance. But this is only for Europeans - Maori (e.g. Willy Jackson) refse to take any responsibility for their past. They are only its downtrodden victims.
Reckon you're right.... Surely they can read public opinion....but need to save face first....
The TOW was written on dog skin parchment.So naturally it deteriorated,there are 4 surviving copies of the Magna Carta. The one I have seen at Salisbury Cathedral is in excellent condition and is paper parchment.
https://www.google.com/search?q=Treaty+of+Waitangi+written+on+dogskin&client=firefox-b-d&sca_esv=7c54ee6eea2635c1&ei=IQf2Z7qEAdff2roPouiViAw&ved=0ahUKEwj6mJ6yncqMAxXXr1YBHSJ0BcEQ4dUDCBA&oq=Treaty+of+Waitangi+written+on+dogskin&gs_lp=Egxnd3Mtd2l6LXNlcnAiJVRyZWF0eSBvZiBXYWl0YW5naSB3cml0dGVuIG9uIGRvZ3NraW4yBxAhGKABGAoyBxAhGKABGAoyBxAhGKABGApIlkJQlwpY0SVwAXgBkAEAmAGpAqABtA-qAQUwLjIuNrgBDMgBAPgBAZgCCaACjRDCAgoQABiwAxjWBBhHwgIGEAAYFhgewgILEAAYgAQYhgMYigXCAggQABiABBiiBMICBRAAGO8FwgIFECEYoAGYAwCIBgGQBgiSBwcxLjAuNy4xoAfRHrIHBTItNy4xuAf5Dw&sclient=gws-wiz-serp
My National MP was immediately told in stiff letters on cardboard how I felt about Luxon's spiking of the Bill and my request that he vote FOR it on Thursday. I did receive a read receipt ... I so hope there are some ripples within the National caucus. As Lance Corporal Jack Jones (Clive Dunn) in Dad's Army. oft said: "They don't like it up 'em!" - Well, IMHO they do need it up 'em! We are all equal and I do not want to live in a dystopian version of Animal Farm.
Anon 9:54, the British concluded HUNDREDS of 'treaties' in Africa alone in the 19thC with tribal leaders. The International Court of Justice in 2002 held that these were null and void in international law because they had not been concluded with sovereign nations.
I like Barends comment. Maybe NZ should take the same path and get an International Court of Justice ruling on our "Treaty" as only one sovereign nation (Britain) was involved. What a great idea if TOW was declared null and void. Maori would be required to pay back money received because of Treaty breaches!!
I know how you feel, Anon 8:39. Unfortunately, the 1975 Act made the so-called treaty a part of domestic law so it no longer comes under international law.
Just a brief note: The website https://bills.parliament.nz/v/Bill/227e6d0b-e632-42eb-cffe-08dcfeb826c6?Tab=sub is still showing only 36,980 of the over 300,000 individual submissions received. Template-based submissions - with only slight variations & many thousands of signatures - were counted as one submission. These included submissions from Act, Hobson's Pledge, Green Party & several iwi groupings. Had they been counted separately, this would have brought the total submissions for the bill closer to a more credible 20%, but still dwarfed by the opposition. Unfortunately, following the Hikoi, the whole exercise seems to have developed into a game, aided by the media. However, even 400,000 participants are a drop in the bucket compared with the size of the NZ electorate!
Agree, someone is 'running' Luxon - at least until Budget. The "Night of Long Sharp Knives" thereafter. I personally think Nats & NZF are playing a -l o n g- game. I hope to see Nats & NZF putting it all to a Binding Referendum alongside next Election. Membership must be telling them aright! Will gain votes bigtime. Goodbye Lab &TPM [&greens?]..
More than 2,858,000 people voted in the last election. Reputable polls have shown clear support for each of the 3 Principles proposed by Act for verification by referendum. The participants in the recent Select Committee’s exercise would not have been a random sample, but one heavily weighted towards individuals/groups with an investment, either emotional or financial, in affirmative action for Maori, i.e., in unequal rights. Those will not be a majority of voters however. Assuming our economy is on the mend by late 2026, the next election may well turn on this issue.
NOT A CONSTITUTIONAL DOCUMENT BUT A “SIMPLE NULLITY”
The Treaty of Waitangi is a simple nullity in international law, because no body politic capable of ceding sovereignty existed in 1840.
It thus only has legal effect to the extent to which it has been – wrongly -- incorporated into domestic statute law.
Contrary to modern-day misrepresentation, the Treaty of Waitangi was not with a collective “Maori,” but with tribes, most of whom signed it, some of whom didn’t.
In February 1840, what is today New Zealand consisted of hundreds of these “dispersed and petty tribes,” each in a constant state of war with one another, and lacking any concept of nationhood.
There was no collective "Maori" or nation state. It was up to the white settlers to create one out of two main landmasses inhabited by hundreds of small groups or bands of cannibal savages existing in a Hobbesian state of nature with one another, in which “every man’s hand was against every other man’s,” "no man was secure in his life or in his property" and "life was nasty, brutish and short."
Some 512 chiefs signed the Treaty, while a substantial minority refused to, meaning there were probably around 600 of these individually insignificant groups.
In the absence of a universally acknowledged civil government and laws to provide for land ownership, in 1840, the various tribes owned nothing.
They simply used or occupied it until a stronger bunch of bullyboys came along and took it off them.
The only universally acknowledged system of laws was "te rau o te patu" [the law of the club] aka "might makes right."
Standing astride a bit of dirt, taiaha in hand, until someone puts a patu through your head and stuffs you in the hāngi pit is NOT ownership.
The Treaty of Waitangi was no more than a simple, moral and practical way of allowing Britain to proclaim sovereignty over all the Islands of New Zealand thereby heading off annexation-minded foreign competitors.
It allowed Britain to unite all the people of New Zealand (which included the Europeans already here as well as the settlers to come) in a newly-created nation state with one flag and one law, and to ensure the protection of its newly-minted Maori citizens from one another and the preservation of the lands that they identifiably used and occupied.
Once the Treaty of Waitangi was signed, all Maori (including the chiefs) became British subjects, rendering it analogous to a used table napkin after a meal, and other than as a historical artefact, about as important.
As Governor Hobson unequivocally stated as he shook the hand of each chief on the lawn at Waitangi: “He iwi tahi tatou” (“Now we are one people”).
The Treaty of Waitangi can thus best be described not as “New Zealand’s founding document,” but as “New Zealand’s founding moment.”
Britain obtained sovereignty over the North Island by Treaty and over the South Island by Proclamation of Discovery on 21 May 1840.
The Proclamation made New Zealand a dependency of New South Wales as an interim measure.
Five months after Britain declared sovereignty over all the Islands of New Zealand, Queen Victoria’s Royal Charter/Letters Patent dated 16 November 1840 superseded the Treaty and the Proclamation, and was enacted into law on 3 May 1841.
The Royal Charter/Letters Patent was Our True Founding Document and First Constitution, not the Treaty of Waitangi.
This separated New Zealand from New South Wales, turned New Zealand into a stand-alone British Colony with its own Governor and Constitution, and empowered a legal government to make laws with courts and judges to enforce those laws, all under the watchful eye of Great Britain.
In 1947 we became a Sovereign Nation when we adopted the Statute of Westminster.
It is not the Treaty of Waitangi, but Queen Victoria’s Royal Charter/Letters Patent, that is our First Constitution and True Founding Document.
It lies in the Constitution Room at Archives New Zealand in Wellington gathering dust.
ENDS
Please, somebody, set this to music.... Explains sooooo much.
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