“Timid and ineffective” is the phase that sums up the Coalition Government’s “real treaty agenda” now that Prime Minister Christopher Luxon, along with the National Party and Zealand First’s Winston Peters, have killed the ACT Party’s Treaty Principles Bill.
Proposed Treaty of Waitangi-related work by the Coalition Government includes:
- a review of treaty clauses in 28 laws,
- a law change “to refocus the scope, purpose, and nature of the Waitangi Tribunal’s inquiries back to the original intent of the Treaty of Waitangi Act.
- decisions on where to next for the Marine and Coastal Area Act, after a 2024 Supreme Court decision to ease concerns about a tribal takeover of the entire coast.
Few may be aware that ACT’s Treaty Principles Bill started with a review of treaty provisions. Once the sheer number of treaty references became apparent, ACT moved to the idea of an omnibus Act, according to ACT MP Nicole McKee.
To be clear, a treaty clause in legislation is a vague general statement that says something like “this Act shall be interpreted to give effect to the principles of the Treaty of Waitangi”.
What are those treaty principles? Currently, according to the Waitangi Tribunal, these involve partnership, active protection, equity and equal treatment, informed decision making, self-determination, and the right of development.
It is understood that the Coalition Government’s treaty clause review will be done by Treaty Negotiations Minister Paul Goldsmith and Crown Maori Relations Minister Tama Potaka.
Neither inspire confidence on this issue. Goldsmith revealed his superficial approach in his speech in the House at the second reading of the Treaty Principles Bill.
Potaka showed his bias when he gleefully called the second reading of the Bill “cremation day”. He is a lawyer who worked as general manager for Tainui Group Holdings in another life.
The review is likely to change little because it involves, according to Goldsmith, considering three options for each of the 28 laws: “leave it as it is . . . remove it . . .or amend it” for clarity.
That means all remaining or amended clauses will still point to the pot pourri of bumper-sticker phrases invoked to give something extra to those with a Maori ancestor.
The best sort of review of the Waitangi Tribunal is to abolish it. This may be easily done, by repealing Sections 4-8 of the Treaty of Waitangi Act 1975.
The Waitangi Tribunal has long passed it’s use-by date if in fact it ever had a justifiable purpose.
It was launched as part of the Treaty of Waitangi Act 1975 with an expectation that it would be an impartial body that would fairly investigate grievances.
But, the Te Roroa Report 1992 is an example of how confidence in the tribunal was eroded when members let oral ramblings trump archived written land sale records, denied affected parties the right to have a say, and upheld a dodgy claim that had been thoroughly investigated and rejected around 40 years earlier.
Subsequently, as a result of that report, the government forced two Northland farmers off farms where the claimed areas were located and crashed land values there, leaving four other farmers begging the government to buy them out.
Few are aware that the Waitangi Tribunal “does not have a single set of treaty principles that are to be applied in assessing each claim”, according to the tribunal’s website.
The principles formally cited in the body of the tribunal’s treaty principles report are the principles of tino rangatiratanga, kawanatanga, good government, partnership and reciprocity, active protection, equity, and redress.
These principles differ both from those cited above, and those listed below, as five Appeal Court Justices imagined them in 1987.
So, any refocusing back to the tribunal’s original purpose won’t touch its methodology and its selective use of treaty principles that may be conjured up at any time. That means the problems that the review pretends to fix will carry on.
The best review of the Marine and Coastal Area Act is repeal and replacement with a simple Act that affirms common law under which all the people of New Zealand own the foreshore, seabed, and riverbeds.
The ACT Party Treaty Principles Bill was an attempt to sort out the welter of confused beliefs that filled a void left by the Treaty of Waitangi Act 1975.
That 1975 Act was intended to “provide for the observation and confirmation of the principles of the Treaty of Waitangi and to determine claims about certain matters which are inconsistent with those principles”, according to Maori Affairs Minister Mat Rata in 1974.
But Parliament never defined those principles.
An attempt to say what those principles were was made in 1987 by the five Appeal Court Justices in New Zealand Maori Council v Attorney General in which each wrote out what they thought those principles were.
At that stage, treaty principles asserted the government’s right to govern, protection for Maori, an obligation to remedy past breaches, and an obligation on the government to consult.
It wasn’t long before there were multiple lists of treaty principles created by various entities and interest groups, each with a self-serving purpose.
A text other than that from which Te Tiriti was translated was appended to the 1975 Treaty of Waitangi Act, leading to the confusion.
That English text was used in 1975 because the final draft of the treaty in English had gone missing and was not available for inclusion.
A central problem is that the Act gave the Waitangi Tribunal the sole right to interpret the treaty to reconcile the differences between the English and Maori texts appended to the Act.
Seeking clarity, the government-commissioned a retranslation of the Maori text that was done by a Waitangi Tribunal member named Hugh Kawharu in the lead-up to the 1990 treaty celebrations.
But the retranslation caused more problems than it solved.
The re-translation comes with 11 footnotes that redefine key words, especially “kawanatanga” (which translated “sovereignty” in Article 1), and “rangatiratanga” (which translated “possession” in Article 2).
The redefined “kawanatanga” and “rangatiratanga” enabled Te Pati Maori co-leader Rawiri Waititi’s to say, at the first reading of the Treaty Principles Bill, that Article 1 “gave consent to Pakeha to govern over themselves”, and that “tino rangatiratanga and self-governance is the ultimate goal”.
This understanding is vastly different from the treaty chiefs debated and agreed to in 1840, through which chiefs ceded sovereignty, had their property rights confirmed, and the Maori people of New Zealand were accorded rights as British subjects.
In addition, the redefined “rangatiratanga” was transformed into quasi-legal term that the Ngai Tahu tribe has just used to claim ownership of all water in their area, which is most of the South Island.
Problems associated with the Waitangi Tribunal’s retranslated treaty could have come to an end in 1989, when an old handwritten treaty text was found.
Yet despite promises to members of the Littlewood family who found the document, in 1989, and to the public in 1992, that a full forensic analysis would be undertaken, no such results have ever been released, according to researcher Martin Doutre.
Two unofficial analyses, one by Doutre and the other by a professional historian/archivist, provided sufficient evidence that the Littlewood Treaty, also known as the Busby February 4, 1840, draft, is the missing final draft in English of the Treaty of Waitangi.
The only differences between that and Te Tiriti are the date and the addition of the word “Maori” to Article 3 of Te Tiriti.
Had that draft been accepted as the correct final draft of the treaty, it could have been appended to the Act as early as 1989, when it was found in Pukekohe, but it wasn’t.
An official evaluation was eventually done in 2006, one year after Doutre had published his findings and 17 years after the Littlewood Treaty was found. That evaluation was a hatchet job.
The Littlewood Treaty was on public display in the Constitution Room at National Archives in Wellington, first briefly in 1992, then from 2001 until 2017 when it was removed and remains out of sight.
Official recognition of the Busby February 4, 1840, treaty draft would remove the excuse for the Waitangi Tribunal to “reconcile differences” and should end the authority of the revised 1980s treaty.
That 1980s treaty is the treaty that Waititi, iwi leaders, recipients of “for Maori” funding, plus lawyers, plus churches, plus the mainstream media, all appear to be fighting to protect.
It’s all about money and power.
While pondering the Waitangi Tribunal, treaty clauses, and the Marine and Coastal Area Act, the Coalition Government could remove the Maori seats, which became redundant in 1893, when all adults, men and woman, gained the right to vote.
Abolition could be achieved by a simple 50 percent majority vote in Parliament.
What scares radicals like Waititi most is the opportunity for everyone to have a say through a referendum. A mandate on treaty policy has never been sought. I put this question to MPs at a select committee some years ago.
I was somewhat scornfully informed, by a former MP, that a consensus exists simply because every party has a treaty policy, and because everyone can vote.
That claimed consensus is a myth. For instance, on the Treaty Principles Bill, all we currently have are the votes of 112 MPs plus a flawed select committee report which claims 90 percent of around 300,000 submissions.
Despite widespread claims that New Zealanders oppose the Bill, detailed analysis from theFacts.nz , published a week ago suggests the opposite – that more than two to one Kiwis support the Bill, despite 90 percent of public submissions opposing it.
Treaty policy needs a mandate which is a majority of three million voters.
The Goldsmith-Potaka treaty-principle-clause review will leave an ever-increasing number of treaty principles untouched.
The Waitangi Tribunal refocus leaves problems in the Treaty of Waitangi untouched.
The next step on the Marine and Coastal Area Act remains undecided.
Little will change.
Here are the Acts that will be reviewed:
- Hazardous Substances and New Organisms Act 1996
- Crown Pastoral Land Act 1998
- Energy Efficiency and Conservation Act 2000
- Hauraki Gulf Marine Park Act 2000
- Climate Change Response Act 2002
- Local Government Act 2002
- Land Transport Management Act 2003
- Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012
- Kāinga Ora–Homes and Communities Act 2019
- Criminal Cases Review Commission Act 2019
- Education and Training Act 2020
- Urban Development Act 2020
- Taumata Arowai–The Water Services Regulator Act 2020
- Mental Health and Wellbeing Commission Act 2020
- Data and Statistics Act 2022
- Plant Variety Rights Act 2022
- Pae Ora (Healthy Futures) Act 2022
- Therapeutic Products Act 2023
- Digital Identity Services Trust Framework Act 2023
- Organic Products and Production Act 2023
- Taumata Arowai–The Water Services Regulator Act 2020
- Mental Health and Wellbeing Commission Act 2020
- Data and Statistics Act 2022
- Plant Variety Rights Act 2022
- Pae Ora (Healthy Futures) Act 2022
- Therapeutic Products Act 2023
- Digital Identity Services Trust Framework Act 2023
- Organic Products and Production Act 2023