My submission on the Principles of the Treaty of Waitangi Bill 2024
I have read the Principles of the Treaty of Waitangi Bill 2024 (the Bill). The Bill has been promoted as an opportunity to have a “national conversation” on the place of the principles in our constitutional arrangements. I agree that public debate is needed and a shared understanding of why The Treaty of Waitangi/ Te Tiriti is a significant foundational document of Aotearoa New Zealand. That debate must start with and be informed by Te Tiriti. It needs to be a debate based on good faith, with accurate information and undertaken with the full involvement of Māori.
The Bill’s principles as drafted bear no resemblance to Te Tiriti and is an attempt to rewrite the Treaty articles. The promoters of the Bill have deliberately skewered the debate. Te Tiriti is not a threat to the basic rights enjoyed by all New Zealanders. All New Zealanders benefit from Te Tiriti as it provides a place for everyone to belong, allows for respectful relationships to flourish and ensures a strong and just foundation for lasting decision making.
In summary I strongly oppose the Bill for the following reasons:
- The Treaty of Waitangi/Te Tiriti o Waitangi is a binding agreement between the Crown and Māori which is fundamental to New Zealand’s constitutional arrangements.
- It is undermining to NZ’s democracy for a government to unilaterally alter a binding agreement especially without the agreement of Māori as the Treaty partner. The approach that has been taken to the Bill offends against justice, and is deliberately inflammatory. As Dame Jenny Shipley has said this is irresponsible politics, and extremely divisive.
- The existing “Treaty Principles” have been developed and applied by the Courts over the past 50 years in particular the principle of partnership.
- By progressing the Bill the Crown is breaching the Treaty Principles of partnership and reciprocity, active protection, good government, equity, redress, and the Article 2 guarantee of rangatiratanga.
- The Bill has come about through an incredibly poor process. It has been drafted without any consultation with the original parties to the agreement. That’s fundamentally unjust, as 42 King’s Counsel have warned.
- The Bill does not reflect any credible interpretation of the Treaty of Waitangi, Te Tiriti o Waitangi, or the principles based on either text.
- The new Treaty Principles are purported to reflect the three Articles of Te Tiriti but do not do that at all. By imposing a contested definition of the three articles, the Bill seeks to rewrite the Treaty itself.
- The Bill’s undermining of Article 2, which affirms the continuing exercise of tino rangatiratanga is particularly concerning. An interpretation of Article 2 that does not recognise the collective rights held by 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.
- The Bill is divisive and harmful. It will reduce the constitutional status of the Treaty/Te Tiriti, remove its effect in law as currently recognised in Treaty clauses, limit Māori rights and Crown obligations, hinder Māori access to justice, impact Treaty settlements, and undermine social cohesion in Aotearoa, New Zealand.
- In addition I’m concerned the Bill will harm New Zealand’s international reputation. Rather than providing certainty and clarity the Bill will result in protracted litigation and cost.
I agree with the Treaty Principles Regulatory Impact Statement recommendation to stay with the status quo – the courts and the Waitangi Tribunal should continue to articulate the meaning of the Treaty principles in line with existing practice.
I urge the government to show leadership by categorically rejecting the Bill and taking steps to urgently repair Māori–Crown relationship and strengthen Te Tiriti for the benefit of all.
Background
I am making this submission in my personal capacity. I immigrated to Aotearoa from the UK with my family at the age of 14. I consider myself to be Tangata Tiriti. I’m fortunate to have had the opportunity to study The Treaty of Waitangi/Te Tiriti o Waitangi first at Auckland Girls’ Grammar School in history classes and then as part of my law degree from the University of Otago. As a solicitor at the Ministry of Fisheries (now part of MPI) I was responsible for staff “Treaty Training” led by the late Sir Wira Gardiner. I attended Waitangi Day celebrations at Waitangi in 2018 for the first time. I would recommend this amazing experience of kotahitanga to all New Zealanders.
I have found that non-Māori often lack basic knowledge about Aotearoa New Zealand’s history and are not familiar with the articles or principles of the Treaty or how it came to be signed. This has given rise to baseless anxiety and fear about the status of Te Tiriti and a distorted view of the benefits and rights provided by Te Tiriti.
There is also a lack of understanding regarding the harm caused since 1840 as a result of the Crown breaching Te Tiriti and the huge loss that has been suffered by Māori, including land confiscation, disruption of their social structures, and erosion of their culture.
I took part in the Hīkoi mō te Tiriti in Tāmaki Makarau because I am deeply concerned with the lasting damage the Bill will cause and the escalating attacks on Te Tiriti and indigenous rights. I saw this in action first hand as co-chair of the Hauraki Gulf Forum (2020-2022) when individuals associated with Hobson Pledge and Democracy Now mounted a misinformation campaign via an astro-turf group (Gulf Users Group) set up by Franks Oglivie. This group made baseless and harmful claims that the Forum’s co-governance advocacy would result in restricting access to the Gulf. Supporters and funders of the Treaty Principles Bill are using many of the same tactics to create fear and division.
Te Tiriti relationships are a source of strength and unity for our country that requires the parties to keep working together with respect and in good faith . There is no place for the Bill in our constitutional arrangements and it should be firmly rejected.
In drafting my submission I referred to many resources in particular the letter from 42 Kings Counsel expressing grave concerns about the Bill and outlining why it should be abandoned.
End
Submissions can be made on the Bill until 11.59pm on 7 January 2025.
Further resources
Amnesty International submission guide
Dame Anne Salmond writing for Newsroom
A reflection on the Mayor of Auckland to end 2023 posted on facebook and LinkedIn (please head there for any comments)
At the Helen Clark Foundation Christmas drinks last week I joked with Mayor Wayne Brown that a year ago, at the same event, hardly anyone wanted to talk to the presumed “worst ever” Mayor of Auckland so he didn’t stick around- one year on he is heartily welcomed as the Mayor to defend the city from the new government (or more specifically Simeon Brown)!
Wayne definitely rates himself as a much better Mayor than people give him credit for. It turns out his politics are quite good. It helped a lot that he quickly discovered that the councillors who he thought were his natural allies and backed him because he was ABC (Anybody But Collins) were not the ones who could be relied upon to constructively work to fix anything (the “furious few” who just say no to everything as Simon Wilson calls them). The progressive grouping of councillors have had an extremely tough year but as they’ve gotten used to a very different style of leadership they’ve achieved the wins and taken control of key positions (yay for them!). Hayden Donnell has captured the shift in power in his piece for Metro Has Wayne Brown gone Woke?
I have to credit the Mayor for his ability to change his mind once properly briefed (a trait unfortunately lacking in many politicians). He changed his view on the Te Hā Noa upgrade of Victoria St and didn’t chop Eke Panuku as he originally threatened. He hasn’t caved into Herald headlines over decisions like the Downtown Carpark redevelopment or reducing greenfields sprawl.
He has moved away from taking soundings from the “saboteurs” and discovered a much wider community of “urbanist” support (he didn’t back the Great North Road or the Pt Chev to Westmere upgrades but he didn’t block them either as the saboteurs and Mike Lee unsuccessfully attempted against the wishes of the community).
Of course I don’t support all his decisions (he was on the wrong side of history with Māori wards when leadership was needed and withdrawing membership from LGNZ was petty point scoring) and especially his plan to privatise the Ports of Auckland but there’s some surprisingly positive things coming in the draft Long Term Plan out for consultation next year like the proposal for a $50/week cap on PT fares. I’ll be cheering on if he really can deliver on “fixing” transport cheaply and quickly especially “low cost opportunities” to deliver the Auckland cycle network as AT has been directed.
None of which is to excuse the Mayor’s problematic behaviour. He has a terrible habit of blurting out inappropriate comments and offensive remarks. Sometimes it can be funny and I don’t think he intends to cause harm (mostly) but unfortunately his un-PC style has resulted in a culture from the top that has unleashed the worst from some councillors and seen excellent council staff leave. There are really decent and smart people in the Mayor’s office who must be hoping for a fresh approach in 2024.