Editorial: Opportunity for alternative principles on Act’s Treaty Bill

If the principle of partnership has been overextended, Act Party leader David Seymour's bill goes too far in the opposite direction. Photo / Mark Mitchell

Editorial

OPINION

The intensity of opposition to the Act Party’s Treaty Principles Bill has been well expressed this year, with a mass demonstration in the grounds of Parliament and the streets around, plus a haka in the debating chamber. But reasoned opposition to the bill has not been expressed as clearly.

That ought to change in the New Year now the bill is before a select committee. Submissions will explain the historical flaws in the bill and Act’s misreading of the Treaty.

Critics could go further though.

They could seize this opportunity to suggest alternative principles for practical applications of the Treaty. For the partnership principle developed by judges since the 1980s has now had its political limitations exposed by the Labour Government’s planned “co-governance” of water networks.

The public has largely accepted co-governance of iconic landscape features for the agreed purpose of conservation, but the backlash against “three waters’ suggests a majority of voters cannot be persuaded to give a minority disproportionate power over vital services and infrastructure.

If the principle of partnership has been overextended, though, Act’s bill goes too far in the opposite direction.

The bill fails to acknowledge that the Treaty of Waitangi recognised and promised to preserve much of the pre-existing autonomy of iwi when it established a colonial government of New Zealand. The obvious conflict in those intentions does not provide an excuse to re-interpret the Treaty for the benefit of one side or the other.

Te Pāti Māori may be as guilty as Act in this regard. Te Pati Māori is arguing that chiefs in 1840 not only retained full power over their tribes and territories but that the sovereignty they agreed to give the Crown covered only the British settlements at that time.

The records show this was the intention until quite late in the preparations for New Zealand’s colonization, but it changed by the time the Treaty was drafted at Waitangi. When it was translated for the chiefs an earnest debate ensued among them about the consequences for rangatiratanga if they signed te Tiriti.

It seems unlikely they would have been as worried about this if they had been given to believe kāwanatanga would extend no further than the few small British settlements at that time. But they were assured their customary rights and authority would be preserved.

The debate among the chiefs before they signed the Treaty is a debate that has never finished. It is about how New Zealand might provide room for Māori self-determination within a cohesive state.

The partnership principle was one answer but never entirely satisfied either party. Māori advocates have generally sought self-governance not co-governance. The Māori Health Authority is a greater loss to them than water entities.

Self-governance was the principle David Seymour recognised in Article 2 of the Treaty when he spoke in halting te reo at Waitangi last year. Sadly, when the election put him in a position to advance his ideas he decided rangatiratanga meant no more than equal individual rights under law.

His bill is going no further than the select committee but it has presented an opportunity to propose something better.

The Treaty is New Zealand’s distinctive, defining challenge. It is more than a constitution, it is our national soul and one day, some way, we will get its balance right.