To correct unfortunate misinformation from various bloggers and NZ Mainstream Media, The Daily Examiner has collated the following details about the ACT party’s Treaty Principles Bill.
The Treaty Articles
ACT believes every child born in New Zealand deserves the same respect and dignity, including equality before the law.
The Treaty Principles Bill would restore the mana of our founding document by ensuring it delivers what it originally promised in 1840: nga tikanga katoa rite tahi – the same rights and duties for all New Zealanders.
What are the Treaty ‘principles’?
The Treaty stood for 135 years until 1975 when the then-Labour Government passed the Treaty of Waitangi Act. The Treaty of Waitangi Act stated the Treaty had principles, and it was the job of the Waitangi Tribunal to interpret them. Since then, the Tribunal, the courts, and the public service have gradually built up the principles, but New Zealanders as a whole have never been democratically consulted on these Treaty principles.
The Treaty Principles Bill will not change the Treaty itself. That was set in 1840 and will remain forever. What we are seeking to do is continue the process of defining the Treaty principles, for the first time incorporating the voices of all people through a democratic Parliamentary process, instead of through the Tribunal or the courts.
What is the intention of the Treaty Principles Bill?
The intention of the Treaty Principles Bill is to establish in law that the principles of the Treaty are what the three articles of the Treaty actually say: that the New Zealand Government has the right to govern; that the authority and ownership of land and property of all New Zealanders is protected; and that all New Zealanders are equal under the law.
The actual text of the Treaty itself is a powerful guide for New Zealand’s future. Far from a divisive document that affords unique privileges to one group, the Treaty is a taonga for all New Zealanders, establishing that all New Zealanders have above all else the same rights and privileges as each other and that the Government has a duty to protect those rights.
What does the Bill do exactly?
The Bill will define the ‘principles’ of the Treaty. The Treaty principles are often mentioned in legislation, but they have never actually been defined in law. Instead, the task has been left to the unelected judiciary to interpret the principles in an ad hoc manner without input from New Zealanders.
Do New Zealanders not currently have equal rights?
Not always. Creative interpretations of the “principles” of the Treaty have been used to justify offering different access to taxpayer-funded services, guaranteed positions on government boards, and even a separate healthcare authority, all based on people’s ancestry.
What problem are you trying to solve?
In recent decades the courts, academics, and the bureaucracy have used a “partnership” interpretation of the Treaty to argue there are two types of people in New Zealand – tangata whenua (land people) and tangata tiriti (Treaty people) – who each have different political and legal rights. This has led to co-governance arrangements and even racial quotas within public institutions. New Zealanders were never consulted on this change. ACT believes the Treaty promises what it says: nga tikanga katoa rite tahi – the same rights and duties for all New Zealanders.
How does the Bill deliver equality before the law?
The Treaty Principles Bill will establish in law that the Treaty principles are based on the three articles of the Treaty, including Article Three which guarantees all New Zealanders are equal under the law with the same rights and duties. Once we settle the constitutional debate through a democratic process we can move on to meet our challenges as a modern, multi-ethnic liberal democracy.
How will the Treaty principles be defined under the new Bill?
The Treaty Principles Bill will establish in law that the Treaty principles are based on the three articles of the Treaty, including Article Three which guarantees all New Zealanders are equal under the law with the same rights and duties. Once we settle the constitutional debate through a democratic process we can move on to meet our challenges as a modern, multi-ethnic liberal democracy.
What is wrong with the “partnership” interpretation of the Treaty principles?
The term “partnership” does not appear in the Treaty of Waitangi. The partnership concept is a recent invention of the courts.
The concept of “partnership” was given force in 1986 when Parliament, with very little debate, included undefined “principles of the Treaty of Waitangi” in the State-Owned Enterprises Act.
The Court of Appeal then interpreted this in 1987, writing that the Treaty “signified a partnership between Pākehā and Māori requiring each other to act towards the other reasonably and with the utmost good faith”. This definition of “partnership” was relatively restrained, but was a seed for later interpretations that expanded the concept without democratic input.
Despite successive governments failing to define in law what the Treaty principles really are, more references to the principles were added into new legislation. As the Minister who introduced the Resource Management Act 1991 stated later, “I am quite sure that none of us knew what we meant when we signed up to that formula”.
Meanwhile the courts and the Waitangi Tribunal have steadily pushed the boundaries of what is meant by Treaty principles and partnership.
In a 2019 decision, the Supreme Court extended a Treaty principle of “active protection” to the Government having a duty to privilege iwi in economic development, in which interests with “mana whenua” were deemed stronger than other commercial interests.
The emergent interpretation of Treaty principles as meaning separate rights for two separate peoples clearly does not align with either version of the original text, Māori or english.
Moreover, it has far-reaching implications for the life of every child born today. Small steps toward co-governance and racial quotas are a red flag for more sweeping changes in coming decades. This makes the Treaty principles a question of constitutional importance for all New Zealanders to decide.
Will New Zealanders – including Māori – have a chance to give feedback on the proposed principles?
Yes. New Zealanders will have the opportunity to make submissions at the select committee stage to a panel of MPs from across the political spectrum. Parliament can then suggest changes to the legislation before it passes through its second and third readings.
What will happen once Parliament passes the Bill?
The End of Life Choice Act was passed by Parliament in 2019 and confirmed by the people in referendum at the 2020 election. This sequence allowed Parliament to debate and fine tune a proposed law, and the people to have the final say about whether it should become law.
We propose the same process for the Treaty Principles Act. This law should be passed by Parliament with the usual process of debate, public submissions, and more debate, then subject to a yes or no vote by the public at large.
New Zealanders, interest groups, and political parties would have the opportunity to persuade the public to vote yes or no in the lead up to a nationwide vote.
Does this Bill have the backing of the coalition Government?
The Treaty Principles Bill is ACT policy and ACT’s coalition agreement with National and New Zealand First commits to introducing and passing a Treaty Principles Bill through a first reading in 2024. However, Cabinet – made up of all three parties – will need to agree to the final shape of the Bill before it is introduced to the House.
Beyond the first reading, it will be up to ACT and the public to convince Parliament to support the Bill further.
Won’t this debate be divisive?
We do not believe having a debate is divisive. ACT accepts that not everyone will agree with our view, that’s exactly why we want to have the opportunity for New Zealanders to have their say – something that they haven’t had a chance to do on this issue. We believe in the freedom to express your difference and will put our view out there to be engaged with.
The conversation brings us together, even if we disagree.
Does ACT recognise the need to right past wrongs against Māori?
Yes. We stand with the vast majority of New Zealanders who want to ensure Māori language and
culture is preserved, that every child has equal opportunity, and that the wrongs of the past are put right.
The loss of Māori language and culture since 1840 necessitates community-led programmes like Kōhanga Reo education. The historic taking of land and resources without proper compensation must continue to be addressed through the Treaty settlement process. And poor outcomes for Māori in nearly every social statistic requires robust evidence-based targeting, and greater devolution of public services.
ACT believes all of these challenges can be met while maintaining New Zealand’s liberal democratic system.
Will this Bill reverse or interfere with Treaty settlements?
No. ACT supports the completion of full and final historic Treaty settlements as a pragmatic way to resolve past injustices. The Waitangi Tribunal would continue to lead this process.
What is the future of co-governance if this Bill passes?
Defining principles based on the Articles of Te Tiriti would mean co-governance arrangements for public institutions and utilities, such as at universities and for water services, would no longer be supported by the Treaty.
Limited co-governance arrangements included in Waitangi Tribunal settlements would continue to be supported as pragmatic ways to reconcile Māori customary and public interests over traditionally shared resources such as rivers and mountains.
Examples include the Tūpuna Maunga Authority managing Auckland’s volcanic mountains, Rotorua Te Arawa Lakes, Te Urewera, and the Te Awa Tupua (Whanganui River settlement).
Is ACT trying to abolish the Treaty of Waitangi?
No. The Bill will define the principles of the Treaty in law.
Is ACT trying to rewrite the Treaty of Waitangi?
No. The text of the Treaty, as written and signed in 1840, will remain unchanged.
Did Maori cede sovereignty to the Crown?
Article 1 of the Treaty, in both the English and Māori texts, clearly states the New Zealand Government has the right to govern all New Zealanders.
As the Right Honourable David Lange said in 2000, We can have a democratic form of government or we can have indigenous sovereignty. They can’t coexist and we can’t have them both.
Didn’t Article 2 of the Treaty only promise chieftainship to Maori?
The second article of the Treaty guarantees the chiefs, hapū and all the people of New Zealand the authority over their land, houses and treasures for as long as they wish to own those. There is no mention of rights belonging to a particular ethnicity or race.
Where can I find more information on the Treaty Principles Bill?
The Bill itself is still in the drafting stage, but during the 2023 election campaign ACT released a policy paper, A path from co-government to democracy, that makes the case for the Bill and explains the history behind these issues.
Image credit: The Signing of the Treaty of Waitangi, February 6th, 1840, 1938 by Marcus King. Ref: G-821-2 Alexander Turnbull Library and Signed Treaty of Waitangi. from Wikimedia Commons, CC BY-ND
