Tearing the Crown-Māori relationship apart

The Waitangi Tribunal rushed to release another section of its interim report on the Treaty Principles Bill this week, just ahead of the bill appearing in the House earlier than flagged.

In the newly released section, Dr Caren Fox, the chair of the Waitangi Tribunal, chose not to mince her words.

 

We found that if this Bill were to be enacted, it would be the worst, most comprehensive breach of the Treaty/te Tiriti in modern times.

If the Bill remained on the statute book for a considerable time or was never repealed, it could mean the end of the Treaty/te Tiriti.

The Crown’s process to develop the Bill has deliberately excluded any consultation with the Māori Treaty/te Tiriti partner. The Cabinet paper rejected the duty to consult Māori as a “novel reading of the Treaty” by the courts and the public service. The Cabinet paper also rejected the “partnership interpretation” of the Treaty/te Tiriti.

Thus, due to unnecessarily truncated timeframes and the Crown’s rejection of the Treaty/te Tiriti partnership, Māori have been excluded altogether from this Crown rewrite of the principles.

This has been the case even though there are two parties to the Treaty/te Tiriti, and the grant of kāwanatanga in Article One is limited by the Crown guarantee of tino rangatiratanga in Article Two.

We do not accept that the Crown’s duty to consult Māori is a “novel reading of the Treaty”; it would fly in the face of almost 40 years of jurisprudence and previous Crown acceptance of this duty.

We found that the Crown’s process to develop the Bill breached the principle of partnership, the Crown’s good faith obligations, and the Crown’s duty to actively protect Māori rights and interests.

This exclusion of Māori from any say in a process to abrogate their fundamental rights is extremely prejudicial. The impacts will not fade for a long time even if the Bill does not proceed beyond the select committee. Any trust or goodwill earned by Treaty settlements is under threat.

The Māori–Crown relationship is being damaged, as officials have repeatedly advised. Cabinet has decided to progress the Bill despite the advice of its own officials that the process has breached the Treaty/te Tiriti, the refusal of constitutional and Treaty/te Tiriti experts to be involved, and officials’ recommendation to retain the status quo as preferable to the Bill.

The Crown documents show that the Crown is pursuing a policy that is not evidence based, has not been adequately tested, has not been consulted upon, and fails regulatory standards. The Crown is therefore in breach of the principle of good government.

In respect of the proposed content of the Bill, as approved by Cabinet, the Crown and claimant evidence agreed that the revised principles, although supposedly based on the Articles, do not reflect the texts or the meaning of the Treaty/te Tiriti.

Principle One, the Principle of Civil Government, misinterprets the kāwanatanga granted to the Crown in 1840, which is not an unbridled power restrained only by its own sense of what is in the best interests of everyone. We found that Principle One is a statement of a new principle that bears no relation to Article One, overstates the kāwanatanga of the Crown, and ignores the two spheres of Crown and Māori authority that the Treaty/te Tiriti established, where overlaps must be resolved by good faith cooperation between the partners.

Principle Two now recognises that hapū and iwi had rights when they signed the Treaty/te Tiriti in 1840, but limits those rights to any that have been specified by the Crown in legislation, a Treaty settlement, or an agreement. Otherwise, Principle Two states that Māori cannot have rights that others do not have.

The Crown and claimant evidence agreed that Principle Two does not reflect the text or meaning of Article Two, and would instead seriously damage tino rangatiratanga. It would abrogate rights of Māori that Article Two guaranteed and protected, and revoke the promises and guarantees the Queen made to Māori in 1840. It would trample the mana of the Treaty/te Tiriti and of all Māori underfoot.

We found that Cabinet’s approval of Principle Two for introduction in a Bill is unfair and discriminatory, and breaches the principles of tino rangatiratanga, kāwanatanga, partnership, and active protection.

We also noted that the justification given for Principle Two was unfounded. People in a liberal democracy can and do have different rights. Also, recognising the distinct status and rights of Indigenous peoples is not antidemocratic, as the examples of Canada, the United States, and Aotearoa New Zealand (before this Bill) have shown.

Principle Three, the “right to equality”, bears no resemblance to the texts and meaning of Article Three. The Crown’s promises were made to Māori, not “everyone”. The right to equality was important but was only one of the rights promised to Māori as the rights and privileges of British subjects. The Queen’s protection, from which the principle of active protection is partly derived, has been left out of Principle Three.

Also, Māori face barriers to equality that others do not, and many of those barriers were of the Crown’s making. This means that equitable treatment is required to ensure outcomes that are more equal. Equality without equitable treatment does not capture the promises made in Article Three or the meaning of the Treaty/te Tiriti as a whole. We found that Cabinet’s decision to introduce Principle Three in a Bill is a breach of the principles of partnership, equity, and active protection.

Considered as a whole, the new principles discriminate against Māori, they abrogate Māori rights, and they extinguish tino rangatiratanga in a legal sense.

In a bizarre twist, the concepts of democracy and equality are being advanced to take away rights and discriminate against Māori. If this Bill is not enacted, it would still be an appalling breach of Treaty principles for the Crown to have developed these principles unilaterally and introduced them to Parliament, telling New Zealanders that these principles represent the meaning of the Treaty/te Tiriti.

The fact that Cabinet could approve such a Bill and introduce it to Parliament would grant an official imprimatur to these “principles” that they would not otherwise have, and could influence the debate long after this Bill has failed to progress beyond the select committee stage.

We found that Māori would be significantly prejudiced by these breaches if the Bill were to be enacted. These include (but are not limited to) :

• The new principles would apply to all legislation where the Treaty/te Tiriti might be considered relevant. This would have a very wide-ranging impact.
• The relationship between the Crown and Māori, based on partnership and the obligations of good faith and reciprocal cooperation, would cease to exist.
• Wherever Māori rights have been recognised in legislation, the legislation would be vulnerable to repeal and the new principles — especially that Māori have no rights that others do not have — would encourage repeal.
• Existing Treaty settlements would be exempt in some way from Principle Two but how is unclear, and settled iwi would be prejudiced by the many statutory regimes outside the ambit of their settlements.
• Current or future settlement negotiations would also be inhibited by the new principles unless the existing principles continue to apply. This underlines the unfairness of the new principles.
• Principle Two would freeze Māori rights as at 1840, foreclosing on their right to development.
• The Bill would introduce new principles that have no legitimacy, and this would undermine the founding document in our constitutional arrangements, bringing into question the legitimacy of the Crown and its institutions.
• The new principles would advance the discredited agenda of assimilation, because they are designed to end the distinct status of Māori as the Indigenous people of this country.

Even if the Bill is not enacted, Cabinet’s decision to introduce the Bill (which is in breach of the Treaty/te Tiriti) would prejudice Māori. The Māori–Crown relationship has already been damaged and would be further damaged, including by the select committee process which we fear could become a platform for racism and misinformation that would prejudice Māori.

Officials rightly warned that the Bill posed a threat to social cohesion and that it could generate division. Māori will feel the brunt of the division and even social disorder that could ensue. We are also concerned that if the Bill is enacted, it would unsettle the constitutional foundation of Aotearoa New Zealand. This is something that should concern the whole nation. New Zealanders, Māori and non-Māori, may have their faith shaken in our constitutional arrangements by this Bill. We have confirmed our previous recommendations.

In the event that the Crown decides not to abandon the Bill as recommended, we have an additional recommendation. The constitutional significance of this issue, and its extreme importance to Māori, is such that we recommend the Crown give notice of a motion to the House of Representatives that it refer the Bill to the Tribunal under section 8 (Two) of the Treaty of Waitangi Act 1975.

We also note that our wider constitutional kaupapa inquiry will contribute to a broader national conversation, which is a theme throughout the evidence for this inquiry, and we think that further policy in this area could benefit from a pause to await the outcomes of the wider inquiry.

We reserve our jurisdiction to hear further evidence and submissions concerning the Bill if it is enacted.

You can read the Tribunal’s full chapter here: Part II of the Interim Report of the Tomokia Ngā Tatau o Matangireia – the Constitutional Kaupapa Inquiry Panel on the Crown’s Treaty Principles Bill and Treaty Clause Review Policies.

Dr Caren Fox (Ngāti Porou, Rongowhakaata, Te Whānau a Apanui) is the chair of the Waitangi Tribunal and Chief Judge of the Māori Land Court.