Treaty Principles Bill

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Principles of the Treaty of Waitangi Bill
Coat of arms of New Zealand.svg
New Zealand Parliament [1]
Legislative history
Introduced by David Seymour [1]
Committee responsibleJustice Select Committee [1]
First reading 14 November 2024 [1]
Voting summary
  • 68 voted for
  • 54 voted against
Summary
The purpose of this bill is to set out the principles of the Treaty of Waitangi in legislation and to require, where relevant, that those principles must be used when interpreting legislation. [1]
Status: Pending

The Treaty Principles Bill, or the Principles of the Treaty of Waitangi Bill, is a government bill [1] promoted by David Seymour of the ACT New Zealand party. It aims to redefine the principles of the Treaty of Waitangi and put them to a nationwide referendum for confirmation. [2] Prior to the 2023 New Zealand general election, ACT had campaigned against the Sixth Labour Government's co-governance policies and advocated a binding referendum on co-governance. [3]

Contents

The bill has sparked significant controversy in New Zealand society. National-led coalition government partners National and New Zealand First will not support the bill past a first reading by a select committee. [4] The bill has drawn criticism from opposition parties Labour, Green, and Te Pāti Māori, as well as Māori leaders and bodies including the Waitangi Tribunal. A number of legal critics have argued the Bill undermines Māori rights and disrupts established interpretations of the Treaty, and have called the Government to abandon it. [5] ACT and Seymour say the current principles have distorted the original intent of the treaty and created different rights for some New Zealanders, resulting in Māori having different political and legal rights and privileges compared with non-Māori, and provides an opportunity for parliament, rather than the courts, to define the principles of the treaty. An October 2024 poll commissioned by the Taxpayers' Union found that 45% supported the Treaty Principles Bill, 25% opposed it, and 29% were unsure. [6]

On 14 November, the Treaty Principles Bill passed its first reading in Parliament. [7] On 19 November, the select committee called for public submissions on the bill with a closing date of 7 January 2025. [8]

Treaty of Waitangi

The Treaty of Waitangi was signed in 1840 by representatives of the British Crown and Māori chiefs. Notably, 39 chiefs signed the English version of the Treaty, while over 500 signed the Māori version, which is referred to as Te Tiriti o Waitangi. [9] It includes a preamble and three articles in two languages, English and Māori. As some words in the English treaty did not translate directly into the written Māori language of the time, the Māori text is not an exact translation of the English text, particularly in relation to the meaning of having and ceding sovereignty.

These two versions have significant differences in wording and interpretation, particularly regarding sovereignty and governance. [10] The points of difference in the Māori version were in articles 1 and 2 of the treaty. "Sovereignty" was translated as "kāwanatanga" which means 'governance' and many chiefs believed they were ceding the government of the country but maintaining the rights to manage their affairs. "Undisturbed possession of properties" was translated as "tino rangatiratanga" of "taonga katoa", This means 'chieftainship/full authority' over 'all treasured things'. [11] [12] [13]

New Zealand is a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which emphasizes the importance of using Indigenous language versions of treaties and agreements. Despite not being incorporated into law, UNDRIP has begun to influence policy and judicial decisions in New Zealand. For example, the Declaration has been referenced in several decisions of the Supreme Court of New Zealand and extensively in findings by the Waitangi Tribunal. [14]

Principles

In 1975, the New Zealand Parliament passed the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal, and introduced the phrase principles of the Treaty of Waitangi. The principles were not defined as the Tribunal was intended to interpret them and apply them based on the intentions of the Treaty. [13] Treaty principles have also been defined by the courts, Waitangi Tribunal and the Crown. [15] [16] [17]

Background

In March 2022, the libertarian ACT Party announced a policy that it would introduce a new law that would redefine the principles of the Treaty of Waitangi if elected into government following the 2023 election. ACT rejected the idea that the Treaty of Waitangi is a partnership between the New Zealand Crown and Māori tribes (iwi), argued that the Crown had a right to govern all New Zealanders, and that tino rangatiratanga is only a right over property. [18] In 2014, the Waitangi Tribunal found that the Māori chiefs who signed Te Tiriti never ceded sovereignty. [19] The Māori population was estimated at just over 100,000 at the beginning of 1840. The settler population was 2000. [20]

The law would only come into effect following confirmation by a referendum on Māori co-governance arrangements that would be held at the 2026 general election. The party's leader David Seymour also called for a referendum on co-governance as a condition for entering into coalition with any future government led by the centre-right National Party. Seymour argued that the 1840 Treaty of Waitangi was not a partnership between the New Zealand Crown and Māori, and therefore co-governance arrangements were not a "necessary extension" of that. He also claimed that co-governance arrangements created resentment and division. [3] ACT's proposed law and referendum would affect co-governance arrangements at several Crown Research Institutes, state-owned enterprises and healthcare providers such as Te Aka Whai Ora (the Māori Health Authority). However, Seymour indicated that the new law would preserve existing co-governance arrangements with the Waikato, Ngāi Tahu, Tūhoe and Whanganui iwi (tribes). [21]

In response, Māori Party co-leader Debbie Ngarewa-Packer and Professor Linda Tuhiwai Smith described ACT's proposed co-governance referendum and policies as being motivated by racism and reflecting a "Pākehā" unwillingness to share power. Similarly, Waikato leader Rahui Papa claimed that ACT's co-governance policies clashed with the second and third articles of the treaty which (he argued) guaranteed Māori participation in the social sector. [21] [3] In response, Prime Minister Jacinda Ardern reiterated the Labour Government's commitment to co-governance arrangements. Meanwhile, National Party leader Christopher Luxon refused to commit to a referendum on co-governance, but acknowledged that further clarity on co-governance was needed. [3]

In October 2022, ACT released a discussion document entitled "Democracy or co-government?" which proposed a new Treaty Principles bill that would end the focus on partnership between Māori and the Crown and interpret "tino rangatiratanga" solely as property rights. By contrast, most scholars of the Māori language define "tino rangatiratanga" as the equivalent of "self-determination" in the English language. The proposed Treaty Principles bill does not mention Māori, the Crown, iwi (tribes), and hapū (subgroups) but refers only to "New Zealanders". ACT Party leader Seymour refused to identify whom his party had consulted when developing its co-governance and Treaty of Waitangi policies, particularly its redefinition of "tino rangatiratanga" as property rights. As part of ACT's "colour-blind" policies, its social-development spokesperson Karen Chhour advocated the abolition of Te Aka Whai Ora. [18]

After the formation of the Sixth National-led coalition government, the National and New Zealand First parties agreed to support the legislation up to the select committee level while ACT dropped its demand for a referendum. [4] [22] Following a leak in January 2024, [23] ACT released a draft of the proposed bill in February 2024 and embarked on a public information campaign to promote it. [2] [24] Since its announcement, the Treaty Principles Bill has generated much controversy and drawn criticism from Māori leaders and bodies including the Waitangi Tribunal, the opposition parties Labour, Green, Te Pāti Māori, religious leaders and lawyers. [25] [26] [27] [28] The Waitangi Tribunal found that "the Crown had breached the Treaty principles of partnership and reciprocity, active protection, good government, equity, redress, and the article 2 guarantee of rangatiratanga. [29]

Coalition agreement and 2024 leak

Following the 2023 New Zealand general election, a National-led coalition government was formed with the support of the ACT and New Zealand First parties in late November 2023. [30] As part of ACT's coalition agreement with the National Party, the parties agreed to introduce a Treaty Principles Bill based on existing ACT party policy and support it to a Parliamentary select committee. In return, ACT dropped its election demand for a referendum on the Treaty of Waitangi. [31] [22]

On 19 January 2024, a Ministry of Justice memo on the proposed Treaty Principles legislation was leaked. The proposed bill had three principles: that the New Zealand Government has the right to govern all New Zealanders; the New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property; and that all New Zealanders are equal under the law with the same rights and duties. The Ministry's paper expressed concerns that the proposed law would conflict with the rights and interests of Māori under the Treaty of Waitangi, that the Crown was trying to define Treaty principles without consulting with Māori, that the Bill breached international agreements such as the International Covenant on Economic, Social and Cultural Rights, and that it infringed on the Māori right to self-determination. Seymour claimed the memo was a "natural reaction" from a bureaucracy that had "presided over increasing division over these issues", but stated the Ministry of Justice was not biased in its advice. [23]

The leak came on the eve of King Tūheitia's national hui on 20 January. In response, Minister of Justice Paul Goldsmith confirmed that the Justice Ministry would investigate the leak and described the document as a draft that had not yet been considered by the Cabinet. In addition Seymour, who had promoted the legislation, accused the Ministry of being part of a bureaucracy that was "resistant to change." Te Pāti Māori co-leaders Rawiri Waititi and Debbie Ngarewa-Packer used the leak to rally opposition against the Government's proposed constitutional changes. [23] [32]

Following the leak, staff from other government agencies became required to physically visit the Ministry of Justice offices to look at hard copies of Cabinet papers relating to the Treaty Principles Bill to prevent leaks. [33]

Draft release

On 7 February 2024, ACT embarked on a public information campaign to promote the Treaty Principles Bill. This campaign includes the creation of a new website called "treaty.nz," which has a Questions and Answers section outlining the party's approach to the principles of the Treaty of Waitangi and a video featuring Seymour. Seymour also contested claims that the government was trying to rewrite or abolish the Treaty of Waitangi. The public information campaign also came after a leaked Justice Ministry memo claimed that the proposed bill clashed with the text of the Treaty. [2] [24]

ACT's proposed Treaty Principles Bill consists of three articles: [2] [24]

Article 1

Māori: Kawanatanga katoa o o ratou whenua.

The New Zealand Government has the right to govern all New Zealanders.

Article 2

Māori: 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.

Article 3

Māori: A ratou nga tikanga katoa rite tahi.

All New Zealanders are equal under the law with the same rights and duties.

Legislative history

Introduction

On 9 September 2024, a draft outline of the Treaty Principles Bill was tabled at a Cabinet meeting, with its basic outline being signed off. ACT leader Seymour also confirmed that the legislation would mention hapū (sub-group) and iwi (tribal) rights to tino rangatiratanga (self determination) and property ownership in Article 2. Cabinet agreed for the following principles to be included in the Bill: [34] [35]

1. Civil Government: The Government of New Zealand has full power to govern, and Parliament has full power to make laws. They do so in the best interests of everyone, and in accordance with the rule of law and the maintenance of a free and democratic society.

2. Rights of Hapū and Iwi Māori: The Crown recognises the rights that hapū and iwi had when they signed the Treaty. The Crown will respect and protect those rights. Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreement with the Crown.

3. Right to Equality: Everyone is equal before the law and is entitled to the equal protection and equal benefit of the law without discrimination. Everyone is entitled to the equal enjoyment of the same fundamental human rights without discrimination.

While Seymour expressed hope that the coalition parties would support the Bill after its first reading, Prime Minister Christopher Luxon reiterated that the National Party would not support the bill beyond its first reading. Similarly, New Zealand First also pledged not to support the Bill beyond its first reading. [36] [37] The final version of the bill will be considered by Cabinet again before its introduction to Parliament in November 2024. [38] Cabinet also agreed that the Bill would undergo a six month-long select committee process, concluding in May 2025. [37] On 5 November 2024 it was announced the Bill's timetable was to introduce it to Parliament on 7 November, with the first reading debate advanced to the week of 11–15 November. [39] Prior to that the times had been understood to be:

Bill timeframe [40]
MilestoneDate
Parliamentary Counsel to draft Treaty Principles Bill2 September 2024 – 9 October 2024
Cabinet LEG Committee7 November 2024
Seek Cabinet approval on Bill11 November 2024
Bill introduced18 November 2024
First reading and referral to Select Committee21 November 2024
Select Committee report back (6 months)Week ending 16 May 2025
Remaining House stagesMay 2025 – June 2025

First reading

Principles of the Treaty of Waitangi Bill Principles of the Treaty of Waitangi Bill (Bill 94-1).pdf
Principles of the Treaty of Waitangi Bill

On 14 November, the Treaty Principles Bill passed its first reading despite opposition from the Labour, Māori and Green parties. [7] Support from the National Party and NZ First was guaranteed under the Coalition agreement, but only up to the second reading. [41]

During the debate, Labour MP Willie Jackson was ordered to leave by Speaker Gerry Brownlee after refusing to withdraw a comment accusing ACT leader Seymour of lying about the Treaty of Waitangi. Te Pāti Māori MP Hana-Rawhiti Maipi-Clarke was also suspended for 24 hours by the Speaker after leading a haka ("Ka Mate") involving members of the public that caused parliamentary proceedings to be delayed for half an hour. [7] [42] In response, Speaker Gerry Brownlee cleared the House and Hana-Rawhiti was suspended for 24-hours. The video of the haka has been viewed more than 700 million times. [43]

On 10 December, House Speaker Gerry Brownlee referred Hana-Rawhiti, Te Pāti Māori co-leaders Rawiri Waititi and Debbie Ngarewa-Packer and Labour MP Peeni Henare to the Parliamentary Privileges Committee for their role in the haka that disupted the first reading's vote. Packer defended the group's actions, claiming that Parliament did not respect Māori. [44]

Votes at first reading (14 November 2024) [45]
PartyVoted forVoted against
National 490
Labour 034
NZ First 80
Green 015
ACT 110
Te Pāti Māori 05
Totals6854

Select committee stage

Public submissions on the Treaty Principles Bill opened on 19 November 2024, and are expected to close on 7 January 2025. [46] In mid-December 2024, several local and regional councils including the Hutt City Council, the Dunedin City Council, the Gisborne District Council, the Selwyn District Council, Environment Canterbury and the Stratford District Council voted to pass motions to send submissions to Parliament opposing the Bill. [47] [48] [49] [50] [51] [52] However, the Ashburton District Council declined to submit a submission, with Mayor Neil Brown citing "the likelihood of a wide range of views within the community on the Bill." [51]

Reception

Regulatory impact statement

The Ministry of Justice's regulatory impact statement says the bill "does not accurately reflect Article 2, which affirms the continuing exercise of tino rangatiratanga. Restricting the rights of hapū and iwi to those specified in legislation, or agreement with the Crown, implies that tino rangatiratanga is derived from kāwanatanga. It reduces indigenous rights to a set of ordinary rights that could be exercised by any group of citizens." [53]

Māori responses

In January 2024, the Māori King Tūheitia called for a national hui (meeting) on 20 January to unify Māori and discuss the potential impact of the Government's Treaty policies. [23] On 15 January, Tūheitia raised the matter of the bill during a private meeting with Prime Minister Luxon and Minister for Māori Development Tama Potaka. [54]

On 9 May 2024, Ngāpuhi kaumātua (tribal elder) Hone Sadler and several claimants filed a challenge against the Treaty Principles Bill at the Waitangi Tribunal, describing the proposed bill's interpretation of the Treaty as "inaccurate and misleading." They also contended that Māori never ceded sovereignty to the New Zealand Crown. [55] On 15 May, the Tribunal heard testimony from University of Auckland Māori Studies Professor Margaret Mutu, who described ACT's Co-Government Policy Paper as "nonsensical" and a misinterpretation of the Treaty. In addition, Northland iwi Ngāti Kahu submitted a letter to King Charles III, calling on him to stop what they called a "violent attack" on the Treaty. [56]

On 16 August 2024, the Waitangi Tribunal released its interim report into the ACT party's Treaty Principles Bill and New Zealand First's proposed review of the Treaty clauses. The Tribunal recommended that the Treaty Principles Bill should be abandoned. [25]

Political parties

An October 2024 poll by Curia found New Zealand First voters most supportive and Te Pāti Māori voters the least supportive of the bill. [6] New Zealand Prime Minister and National Party Leader Christopher Luxon said of the bill: "We don't support it because we think it is divisive, and you know, we're proud of the Treaty of Waitangi." [57]

During King Tūheitia's 18th Koroneihana (coronation anniversary celebration) in mid-August 2024, [58] both Prime Minister Luxon and NZ First senior minister Shane Jones reiterated that National and NZ First would not support ACT's Treaty Principles Bill beyond its first reading. In response, ACT leader David Seymour said that Luxon and Jones had "closed their minds" when the legislation had not yet finished drafting. [59]

Former Race Relations Commissioner Joris de Bres labeled the bill as "the most divisive piece of legislation to be put before Parliament," expressing concerns over its potential to damage race relations in New Zealand. [60]

NZ First

On 23 August, NZ First leader Winston Peters said during Question Time in Parliament that he was willing to change his mind on the Treaty Principles Bill "if there was prevailing compelling evidence to change one's mind." When Labour leader Chris Hipkins pressed Peters further on the matter, Peters said that Māori leaders Peter Buck, Maui Pomare and James Carroll had concluded there were no principles of the Treaty of Waitangi. [61]

Labour, Greens, Te Pāti Māori

In response to the 9 September cabinet outline of the bill, Hipkins described the Treaty bill process as shambolic and urged Luxon to jettison the "divisive" legislation. [38] Te Pāti Māori co-leader Debbie Ngarewa-Packer described the inclusion of iwi and hapū as insufficient. Similar criticism was voiced by Green Party MP Teanau Tuiono, and Labour MPs Willie Jackson and Cushla Tangaere-Manuel. [37]

On 7 November, the three opposition parties Labour, Greens and Te Pāti Māori issued a joint statement opposing the introduction of the Treaty Principles Bill claiming that it disregarded the Treaty of Waitangi and ignored Māori voices. [26]

Civil society

On 9 September 2024, 400 Christian leaders including three Anglican archbishops, the Catholic Archbishop, a Catholic Cardinal, the Methodist Church president and the Salvation Army commissioner signed an open letter calling on MPs to vote against the Treaty Principles Bill and affirming their commitment to honouring the Treaty of Waitangi. In response, Seymour accused church leaders of interfering in democracy a second time, with the first time being the End of Life Choice Act 2019. [27]

On 13 November 2024, 40 King's Counsels wrote a letter to Prime Minister Luxon and Attorney-General Judith Collins urging the National-led coalition to withdraw the bill on the grounds that it "seeks to rewrite" the Treaty of Waitangi. In response, Seymour defended the bill and argued that it would give everyone a voice in the Treaty debate. [28]

Hobson's Pledge, a conservative anti-affirmative action for Māori lobby group, has started a pro-Treaty Principles Bill campaign aimed at the Prime Minister, referring to him as a "scaredy cat" for not supporting the bill further. [62]

Polling

A Research New Zealand poll conducted in February 2024 showed 36% in support of a referendum, with 35% opposed, the rest undecided. [63] [64]

An October 2024 poll by Curia and commissioned by the New Zealand Taxpayers' Union showed 46% supported the Treaty Principles Bill, 25% opposed it, and 29% were unsure. [6]

A 1News-Verian poll conducted between the 30th of November and 4th of December 2024 showed 23% of participants supported the bill, while 36% opposed it and 39% claimed to not know enough about it. [65]

Protests

Hikoi protest in Hastings, November 2024 "Honour it, don't edit it" sign at Toitu Te Tiriti protest in Heretaunga (Hastings) 16 November 2024.jpg
Hīkoi protest in Hastings, November 2024

On 7 November, protesters gathered outside the New Zealand Parliament and Seymour's electorate office in Epsom to protest against its introduction. [66]

From 11 November, a hīkoi (march) opposing the legislation called Hīkoi mō te Tiriti (March for the Treaty) began marching to Parliament in Wellington in two convoys beginning at Cape Reinga in Northland and Bluff in Southland. [67] [68] North Island Hīkoi supporters reached Whangārei on 11 November before travelling to Dargaville and Auckland's North Shore on 12 November. Organisers also worked with Police to minimise traffic disruption. [69] By 13 November, the North Island convoy had crossed the Auckland Harbour Bridge and reached Ihumātao and Bastion Point. [70] [71]

The haka and hīkoi in opposition to the Bill has also gained the support of singer Lorde, Chris Martin of Coldplay, and actors Jason Momoa and Octavia Spencer. [72] All Blacks player TJ Perenara incorporated a reference to the hīkoi when he led the haka for the national rugby team. He said it was important for him to acknowledge the hīkoi and the national unity at this time. [73] There was more non-Māori support for the hīkoi than previous protests such as the Foreshore and Seabed hīkoi of 2004. [74]

On 16 November, Brian Tamaki led a convoy down an Auckland motorway as a counter protest to the nationwide hīkoi, supporting the Treaty Principles Bill. [75]

On 19 November 2024, tens of thousands of New Zealanders, including the Māori queen Ngā-wai-hono-i-te-Pō Paki, joined in nationwide protest, converging in Wellington to protest the bill, marking one of the largest demonstrations in the country's history. [76] A international petition was also presented, which by 25 November 2024, had amassed 289,000 signatures. [77]

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References

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