Treaty Principles Bill: Three principles of the bill agreed on by Cabinet

Three principles Cabinet has agreed to include in David Seymour’s contentious Treaty Principles Bill have been released – alongside warnings from officials that the policy is based on a “novel reading” of the Treaty and the Government should stick with the status quo.

Seymour’s Treaty Principles Bill has been the subject of intense criticism. The Waitangi Tribunal has described it as unfair, discriminatory and a “solution to a problem that does not exist”.

Ministerial briefing documents to Justice Minister Paul Goldsmith this year warned the bill risked impacting social cohesion and damaging the Māori-Crown relationship.

And hundreds of church leaders penned an open letter this week with similar concerns, urging MPs to do everything in their power to prevent the bill from getting past its first reading and going to a public inquiry.

With the proposed legislation, Seymour is proposing to replace existing Treaty principles, which have been developed over several decades by the courts and the Waitangi Tribunal, with three new principles that he says will provide more “certainty and clarity”.

Seymour’s coalition partners, National and NZ First, have already said they will not support the bill past a first reading. The bill will, however, go to select committee for six months from November to May.

The principles, released today and agreed on by Cabinet, are:

1. Civil Government: The Government of New Zealand 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.
2. Rights of Hapū and Iwi Māori: The Crown recognises the rights that hapū and iwi had when they signed the Treaty. The Crown will respect and protect those rights. Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreements with the Crown.
3. Right to Equality: 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.

“The Treaty Principles Bill provides an opportunity for Parliament, rather than the courts, to define the principles of the Treaty, including establishing that every person is equal before the law,” Seymour said.

Seymour told reporters at Parliament today he was “not surprised” by a conclusion from Ministry of Justice officials that the bill was inconsistent with the Treaty of Waitangi.

“It’s the bureaucracy, the courts, the [Waitangi] Tribunal that have been defining the Treaty for the last 50 years that have come up with something inherently divisive.

“The whole purpose of this exercise is to push back against the bureaucracy’s definition and give the people a say.”

Officials recommending sticking with status quo

In Cabinet and Parliamentary documents released today, Ministry of Justice officials warned the bill would see the existing Treaty principles replaced with new “significantly narrower” principles.

The Regulatory Impact Statement issued alongside Seymour’s statement considered the status quo, as it functions now, and defining the principles in legislation, as Seymour has proposed.

Although the bill could “have some value”, officials believed the “status quo is more beneficial”, the document said.

“Under this option, the courts and the Waitangi Tribunal would continue to articulate the meaning of the Treaty principles in line with the existing legislation and practice. This option would uphold Treaty obligations to the same extent as they are now.”

The analysis was finalised in late August when the final content of the principles had yet to be determined, but said the policy proposal was inconsistent with the Treaty/te Tiriti.

“It does not accurately reflect Article 2, which affirms the continuing exercise of tino rangatiratanga. Restricting the rights of hapū and iwi to those specified in legislation, or agreement with the Crown, implies that tino rangatiratanga is derived from kāwanatanga. It reduces indigenous rights to a set of ordinary rights that could be exercised by any group of citizens.”

It said that an interpretation of Article 2 that didn’t recognise the collective rights of iwi and hapū, “or the distinct status of Māori as the indigenous people of Aotearoa New Zealand, calls into question the very purpose of the Treaty and its status in our constitutional arrangements”.

In contrast, the officials found the status quo provided a “higher degree of certainty about what the Treaty principles are and how they operate in New Zealand law”.

“The existing principles have been developed over years of jurisprudence and by the actions of successive governments. Defining the principles of the Treaty/te Tiriti in legislation might provide a level of clarity about the intent of Parliament when it refers to the principles, but it could also introduce more uncertainty into our constitutional arrangements because it would unsettle the established jurisprudence about the effect of the principles.”

Retaining the status quo would also “minimise the risk of damaging Māori-Crown relations” as the proposed legislation “could be seen as attempt to limit the rights and obligations created by the Treaty”.

“This would present a significant risk to the Māori-Crown relationship and could have flow-on effects into other parts of the relationship. We note that neither the status quo, nor the proposed bill, will address broader questions about how the Treaty/te Tiriti shapes our constitutional arrangements.

“However, the status quo preserves space for future engagement with iwi and hapū as the Crown’s Treaty partner about our constitutional arrangements in a process that prioritises public engagement, social cohesion, transparency, and the legitimacy of the outcome.”

Lack of consultation with Māori

Officials warned while it “might be possible” to develop principles that aligned with established law and the “spirit and intent” of Te Tiriti, it was also “likely to raise significant disagreement about its consistency” with it. The bill could also displace case law about how principles should be applied.

A lack of consultation with Māori on policy development – the bill will still receive public submissions during the select committee process – “is likely to leave Māori feeling alienated and excluded from meaningful participation in the direction of Aotearoa New Zealand’s constitutional arrangements”.

“The Crown changing its understanding of the principles, without engaging in a broader discussion, could undermine confidence in our constitutional arrangements.”

A Cabinet paper stated it was the belief of the Ministry of Justice officials the proposed policy was not grounded in the Treaty/te Tiriti or the existing Treaty principles, that the underlying rationale for the principles as described in the Act party policy relied on a “novel reading” of the Treaty/te Tiriti that is not supported by the available evidence, and that the policy did not recognise tino rangatiratanga or the distinct political status of Māori as the indigenous people of Aotearoa New Zealand.

A Cabinet paper from Seymour showed he wanted the principles to “assist with the interpretation” of any other legislation where principles of the Treaty would “normally be considered relevant”.

This doesn’t mean the legislation being interpreted would need to explicitly refer to Treaty principles. Seymour also wanted the proposed bill to make it clear it was “not intended to alter the text of the Treaty itself or change any Treaty settlements”.

“This may reassure those who are concerned the Crown is attempting to amend or ‘repeal’ the Treaty. It makes it clear that the bill is an instrument of Parliament created for the purpose of interpreting its intent when it passes legislation. This will also preserve space for an ongoing national conversation around the place of the Treaty in our constitutional arrangements.”

In the Cabinet paper, Seymour said that to ensure existing Treaty settlements were upheld, there would need to be further work during the bill’s drafting process “to understand the bill’s full impact”, including on ongoing or future settlement negotiations.

“This includes consideration of whether defining the principles in statute will introduce uncertainty in existing legal regimes (such as resource management) and impacts on the implementation of settlements.”

The paper said officials would identify options to mitigate any risks, for example including a provision in the bill “that would ensure existing rights and obligations” weren’t affected.

A timeline laid out in a Cabinet paper released today shows the bill being introduced into the House on November 18, followed by its first reading on November 21.

It would then sit with a select committee for six months, with MPs reporting back on it in the week ending May 16.

In the Cabinet paper, it was noted that if the committee received an “extraordinarily large” number of submissions, the Parliamentary process could be delayed.

Julia Gabel is a Wellington-based political reporter. She joined the Herald in 2020 and has most recently focused on data journalism.