Tēnā koutou Ngāti Rangitihi.

Te Mana o Ngāti Rangitihi Trust has commissioned a Memorandum Report into the Treaty Principles Bill that is currently being proposed by ACT. 

We have received the Report from Karen Feint KC and Nerys Udy of Thorndon Chambers law firm, and we want to share the findings with you via this pānui.

You can read the full Report here which sets out a full analysis of the Treaty Principles Bill in context, and the executive summary is provided below which provides an overview of the core issues with the Bill. 

If you have any feedback on the Report, please email these directly to our Kaiwhakahaere Matua/Operations Manager, Alana Hunter: alana@ngatirangitihi.iwi.nz.

Mauri ora!

Leith Comer, Chairman

EXECUTIVE SUMMARY 

1. The ACT party has proposed to develop a Bill which redefines the meaning of ‘Treaty principles’ in New Zealand law. Currently, many statutes refer to Treaty principles and the meaning of those principles has been developed over time by the Courts and the Waitangi Tribunal. ACT argues that the Court-developed principles do not reflect the true meaning of the Treaty and it should be for Parliament to define the meaning of Treaty principles.

2. ACT’s proposals claim to focus on a return to the original text of Te Tiriti. In reality, their proposal amounts to a disingenuous reframing of Te Tiriti that seeks to affirm absolute Crown sovereignty and Crown law as the only legitimate legal system in Aotearoa New Zealand. Their proposal amounts to a rewriting of Te Tiriti that does not reflect its spirit or text and does not honour the core guarantee of tino rangatiratanga.

3. The Bill has not yet been drafted. However, ACT has widely publicized their proposed interpretation of the Treaty principles. These principles rely on select excerpts of the Māori text of Te Tiriti that have been taken out of context and twisted to fit ACT’s preferred narrative.

4. They propose the following principles:

(i) Kawanatanga katoa o o ratou whenua: The New Zealand Government has the right to govern all New Zealanders.

(ii) Ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou whenua o ratou kainga me o ratou taonga katoa: The New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property.

(iii) A ratou nga tikanga katoa rite tahi: All New Zealanders are equal under the law with the same rights and duties.

5. Principle 1 seeks to affirm Crown sovereignty by treating ‘kāwanatanga’ as an absolute authority, ignoring that kāwanatanga is a limited authority granted to allow the Crown to govern unruly Pākehā settlers. Principle 2 does not recognise that tino rangatiratanga is a concept of collective political authority and instead reduces tino rangatiratanga to an individual property right guaranteed to all people in New Zealand. This is a blatant mistranslation of tino rangatiratanga and ignores the fact that Te Tiriti clearly guarantees tino rangatiratanga to Māori political bodies, not to tauiwi settlers. In the context of the first two principles, Principle 3 effectively positions Crown law as the only legitimate source of rights and duties and therefore denies Māori their rights arising in tikanga.

6. The proposed principles have been widely criticized within Te Ao Māori and Te Ao Pākehā alike. The proposed Bill is highly problematic because, if passed into law, it would severely limit the ability of the Courts to uphold Māori rights arising under Te Tiriti and tikanga. It would mean that any statute that requires consideration of “Treaty principles” would now need to be read in light of the redefined principles. This would have significant, detrimental effect on Māori interests in a range of spaces, from resource management, environmental law, child protection and more.

7. ACT claims that current Treaty principles are discriminatory because those principles recognize the Māori rights and duties arising at tikanga. This fails to recognize that Māori rights at tikanga arise out of a different legal, constitutional context than the rights guaranteed to persons under Crown law. It is not discriminatory to recognize that members of a particular constitutional community will have particular rights that differ to the rights of members of another constitutional community. This concept is the very basis of self-determination and independence for states across the world.

8. ACT also attempts to claim that that all New Zealanders are entitled to debate the relevance of Te Tiriti in the name of democracy. However, one party to Te Tiriti cannot unilaterally rewrite or renege on the promise of Te Tiriti. If a kōrero about the place of Te Tiriti in Aotearoa New Zealand is to occur, it must occur in the full recognition of the tino rangatiratanga of iwi and hapū to decide the shape of their relationship with their Treaty partner, the Crown.

9. Fundamentally, ACT’s proposal undermines Te Tiriti’s vision of two constitutional spheres of influence operating in relationship with each other; a kāwanatanga sphere and a tino rangatiratanga sphere. That vision is not yet fully realized in the current state of Aotearoa New Zealand’s legal landscape, but ACT’s proposal risks a significant winding back of progress towards fulfilling that vision.