OPINION
While Act and New Zealand First both won concessions in coalition talks on the principles of the Treaty of Waitangi, one is likely to be more problematic than the other.
New Zealand First’s is likely to be the least controversial because much of what it is suggesting should happen to the principles of the Treaty in legislation is already happening - ensuring that Treaty references in law specify the relevance and application of that law to the Treaty.
Act did not get what it wanted in terms of a referendum on what the principles should be but what it did get is likely to trigger intense debate and open up the country to a debate it didn’t bargain on – over Māori sovereignty.
And that debate could accelerate the politicisation of a new generation of young Māori to claim something more significant than co-governance.
Act will take a bill to a select committee that would enshrine the principles of the Treaty of Waitangi in law, and it will contain a clause saying that if the bill is passed through Parliament it will be put to a referendum.
National and New Zealand First will support it to a select committee for public submissions, with no guarantees beyond that.
That means several options: it could be voted down altogether at second reading, it could rewrite the principles in law with confirmation by a referendum, or it could rewrite and pass the principles in law without a referendum. Whichever it is, it will be an important constitutional debate.
It won’t be a binary debate between Act, which opposes the current principles, and Māori supporting them. Many radical Māori oppose the concept of the principles of the Treaty as well.
They believe the principles dilute the actual promises in the articles of the Treaty and that “tino rangatiratanga” in article two of the Māori language version guaranteed they could retain complete tribal control and did not cede sovereignty.
It is because of that apparent contradiction with the English version - of giving up their sovereignty to the British Crown, vs keeping their sovereignty - that the principles were articulated at all by the Waitangi Tribunal and the courts. They were supposed to represent the spirit of the Treaty in a modern world.
Te Pati Māori co-leader Rawiri Waititi opposes the concept of Treaty principles as shown last year when he unsuccessfully attempted to get rid of the references to them from health legislation with an amendment.
“It…replaces all references to the Treaty principles with references to the articles of the Treaty,” he said in debate on the Pae Ora (Healthy Futures) Bill 2022.
“For legislation to be compliant with Te Tiriti o Waitangi it must implement the actual text of the agreement that was signed in 1840 — the articles which include the reaffirmation of the tino rangatiratanga of hapū and iwi,” he said.
“References to the Treaty principles in law have been used to water down the Crown’s commitments to its relationship with tangata whenua. Te Tiriti o Waitangi was a contractual agreement, not a statement of principles. We must not allow the Crown to pretend otherwise.”
Waititi’s rejection of the concept of principles is shared by many Māori.
The principles are not set in stone and are intended to evolve as conditions change. Most would barely raise an eyebrow such as the principle of acting reasonably and in good faith, the principle of active protection of Māori taonga, of consultation and redress. The most controversial and contested by Act and New Zealand First is the principle of partnership, which is the basis for recent examples of co-governance.
The debate and protest around Māori sovereignty that gathered pace in the 1980s was dampened by the fact that the protesters got older and that successive Governments became more responsive to Treaty issues.
Governments used the principles to underpin Crown response to Treaty issues and in recent years required the public service to be Treaty “compliant” in its work - although no Government has encouraged public debate on the matter and Act’s move is backlash against that.
Act wants the principles to say in law that: 1. The New Zealand Government has the right to govern New Zealand; 2. The New Zealand Government will protect all New Zealanders’ authority over their land and other property; 3. All New Zealanders are equal under the law, with the same rights and duties.*
Parliament has twice before debated the principles of the Treaty of Waitangi – in bills by opposition MPs - but under more benign conditions.
Act’s move to dilute and define the principles in law is part of a wider agenda against which wider protest action is being planned and which the Kingitaanga is a leading force.
Whether it has the force of the fiscal envelope protests of the 1990s or the impact of the foreshore and seabed protests of 2004 is not yet known, but it would be safe to suggest that Waitangi Day will not be a day of celebration in 2024.
The Government’s agenda is wider and includes commitments to review the work of the Waitangi Tribunal, curb the use of Māori in the titles of Crown agencies, disestablish the Māori Health Authority, repeal the right of councils to establish Māori wards without referendum, repeal the law giving Ngai Tahu two seats on Environment Canterbury, repeal the regional co-governance committees under Three Waters, repeal the replacements for the RMA which includes Māori representatives on planning committees, and legislate to reverse a recent Court of Appeal decision on the foreshore and seabed.
Act’s move on the principles of the Treaty may be a backlash against successive Governments largely failing to explain the evolution of the Treaty within the wheels of government. But the Māori backlash against the backlash is bubbling away.
There are several other important differences since Parliament last saw mass protests by Māori.
The Government is inexperienced. Its Prime Minister, Christopher Luxon, has been an MP for only three years and the new cabinet minister responsible for Māori Crown Relations, Tama Potaka, has been an MP for only seven months.
New Zealand First Cabinet Minister Shane Jones, who might otherwise have been a valuable intermediary, has been at the forefront of confronting and criticising the Treaty’s direction within Government and some tribal leadership.
The new Attorney-General, Judith Collins, will play an important role in providing advice to the Government on the evolution of Treaty jurisprudence in New Zealand and what the consequences could be for up-ending it.
The political landscape within Māoridom has changed as well. Most iwi have settled grievances with the Crown in what are meant to be full and final settlements.
But the Waitangi Tribunal has said that Ngapuhi, the largest iwi in the country, did not cede sovereignty. Next weekend at Waitangi, the tribunal will be handing over its final report to Ngapuhi.
The report likely has consequences for all other iwi. It is a huge issue, so huge that it may be easier for the Government to ignore it than respond to it.
A debate about the principles inevitably leads to a debate about what the articles of the Treaty meant and that ultimately leads to a debate about sovereignty.
* An earlier version of this story used a different set of principles from a David Seymour speech which have since been updated to those listed above.
Audrey Young covers politics as the New Zealand Herald’s senior political correspondent. She was named Political Journalist of the Year at the Voyager Media Awards in 2023, 2020 and 2018. She was political editor, leading the Herald’s Press Gallery team, from 2003 to 2021. She has been writing about the Treaty of Waitangi issues for almost 30 years.
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