Committee Secretariat.
Justice Committee
Parliament Buildings.
Wellington
ju@parliament.govt.nz
TreatyPrinciples@parliament.govt.nz
2 January 2025
SUBMISSION on Principles of the Treaty of Waitangi Bill
Introduction
Status of this document
To avoid any doubt, this document is a submission on the Principles of the Treaty of Waitangi Bill made before the closing date for submissions.
Bill not workable in present state
The committee will receive many submissions recommending that this bill not proceed. I agree with that recommendation. The bill is not workable in its present state. If it is to proceed, it needs to be made into a coherent and workable piece of legislation—particularly regarding consequential amendments and amendments to related legislation.
Content of this submission
This submission has 2 parts. Part 1 comments on the bill as it is currently. Part 2 contains a proposal for a more coherent and workable structure.
The submission concludes with a summary.
Part 1: bill as it is
Clause 2
The first problem with clause 2 is its heading. The clause deals with a lot more than commencement. The heading of a clause must reflect its content because headings are permitted to be used in interpreting legislation (Legislation Act 2019, section 10(4)).
The second problem with clause 2 is that it shows the thinking has not been done on what is needed in a bill setting up a binding referendum. These matters at least must be dealt with—
- how the referendum is to be held and counted and how the result is to be notified. Examples of what is needed are provided by the Compulsory Retirement Savings Scheme Referendum Act 1997 and the Referendums Framework Act 2019;
- what limits are to be set on the amounts that supporters may spend on promoting their particular side. This is a necessary precaution when a binding referendum deals with a particularly contentious matter;
- whether all potential circumstances have been covered. One example appears when trying to work out the interaction of clause 2(1) and (6)(b). Clause 2(1) says that, if the Act has majority support in a referendum, it comes into force 6 months after the declaration of the result. However, clause 2(6)(b) allows for a petition against the result and envisages the High Court requiring a fresh referendum. What is the situation if the Act comes into force before the High Court proceedings are finished or any fresh referendum is held? Could there be a period of time when the principles in clause 6 are the law followed by a period when they have ceased to be the law? If there could, how can inequality in cases decided while clause 6 was the law be corrected?
Clause 3
Clause 3(b) will be applied consistently only if it is referred to in the Legislation Act 2019.
Clause 4
In the definition of Treaty settlement Act,—
- paragraph (b) should start with “each of the following”; and
- paragraph (b)(vi) should be turned into a paragraph (c) because “any other Act” qualifies both paragraphs (a) and (b)(i) to (v).
Clause 6
Principle 1
Paragraphs (a) and (b) have to be considered the other way around.
Paragraph (b) says that “The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws, in accordance with the the rule of law”.
The rule of law includes international agreements. The paragraph is, therefore, saying that our government and parliament are empowered to govern and make laws in accordance with the Treaty (among other things). That is a correct statement.
However, the correctness of the statement arises not because it is a principle of the Treaty but because it is a consequence of the making of the Treaty. In other words, if there were no Treaty, our government and parliament would have no powers of any sort, including the powers to govern and make laws “in the best interests of everyone” referred to in paragraph (a). (A point to note is that our government and parliament would never have powers to govern and make laws “in the best interests of everyone” since they do not have jurisdiction over the whole world.)
In summary, Principle 1 cannot proceed because it does not set out a principle of the Treaty but a consequence of the making of it.
Principle 2
Principle 2(2) sets 2 conditions for hapu and iwi Maori to meet in order for their pre-Treaty rights to be respected and protected, ie,—
- the rights of hapu and iwi Maori differ from the “rights of everyone”; and
- the rights of hapu and iwi Maori are agreed in the settlement of a historical treaty claim.
It is impossible for hapu and iwi Maori to meet the first condition. This is because—
- it requires the existence of rights that everyone has
- the word “everyone” includes hapu and iwi Maori
- hapu and iwi Maori have pre-Treaty rights
- the pre-Treaty rights of hapu and iwi Maori do not differ from the part of “everyone” that is made up of hapu and iwi Maori
- since hapu and iwi Maori cannot establish that their pre-Treaty rights differ from the rights of everyone, principle 2(2) does not apply and, as a consequence, principle 2(1) does not apply.
As it is impossible for hapu and iwi Maori to meet the first condition, the second condition is rendered irrelevant.
The effect of principle 2 is that the Crown will not respect and protect the pre-Treaty rights of hapu and iwi Maori, which is the exact opposite of the what the Treaty says.
In summary, Principle 2 cannot proceed because it does not set out a principle of the Treaty but a negation of it.
Principle 3
Principle 3 would be a surprise to the representatives of the British government who drafted and signed the Treaty. They would not have heard of any of the concepts in it and, if they had been told about them, they would have thoroughly disapproved.
Equality before the law, the equal protection of the law, and the equal benefit of the law, as referred to in principle 3(1) and 3(2)(a) did not apply to Lord Auckland, the person responsible for William Hobson’s coming to New Zealand. Lord Auckland sat in the House of Lords and, if he had ever been charged with an offence, he would not have been tried in the courts that dealt with ordinary people. He would have been tried by his fellow Peers in the House of Lords. Since this inequality before the law lasted until 1948, it must have been well-ingrained in British society and in people like Lord Auckland and William Hobson.
Inequality before the law, the unequal protection of the law, and the unequal benefit of the law was evident in Lord Auckland and William Hobson’s Britain in another way, not one that affected them but one they would have accepted as being as natural as the weather. This was the fact that women did not have any sort of equality. One glaring example was that no British woman could vote, not even Queen Victoria. This inequality was so enrenched in British society that it lasted until 1928,when women finally got the vote on the same terms as men (Representation of the People Act 1928).
Freedom from discrimination, as referred to in principle 3(2), would also have been a strange idea to Lord Auckland and William Hobson. They lived in a hierarchical society that thought it appropriate to sing in church on Sundays—
“The rich man in his castle,
The poor man at his gate,
God made them, high or lowly,
And ordered their estate”.
This is verse 2 from the hymn “All things bright and beautiful”, which was written by Cecil Frances Alexander and first published in 1848.
Fundamental human rights, as referred to in principle 3(2)(b), was an idea that did not exist in 1840. It did not come into being until 10 December 1948. That was the date on which the United Nations, which itself had only recently been established, adopted the Universal Declaration of Human Rights. The preparatory work on the Declaration had begun in 1945, in response to the “barbarous acts which … outraged the conscience of mankind” during the Second World War.
In summary, Principle 3 cannot proceed because it is a historical impossibility for it to be a principle of the Treaty.
The principles in clause 6 do not work because they do not reflect the essence of the Treaty. The essence is that 2 sovereign nations agree to share a land and look after it together. To look after it means caring for the land and the people on it by making joint decisions about what should be done. That was the situation on 6 February 1840 and it remains the situation today. The only principles the Treaty can have are ones that relate to sharing: partnership, participation, and protection of rangatiratanga are among the principles that the courts and the Waitangi Tribunal have developed since the passage of the Treaty of Waitangi Act 1975. They are the ideas that should be in clause 6.
Clauses 7 and 8
Clause 7(2) is intended to stop the courts from developing Treaty principles additional to those in the bill. The problem is that a firm line cannot be drawn between a completely new principle and a development of an existing one without a lot of court or Tribunal cases. Clause 7(2) may simply bring into existence a fertile new field for Treaty litigation. That is not a desirable outcome.
If clause 7(2) were deleted, clause 7(3) could also be deleted. The material in clause 8 could then become a new clause 7(2), expressed as an exception to clause 7(1).
Clause 9
This clause states existing law correctly. The Treaty of Waitangi is a treaty recognised at international law. It was made between 2 parties, the British Crown and the Maori chiefs of Aotearoa. Those parties can, by negotiating with each other, alter it. Neither party can alter it by a law passed by its parliament.
Since clause 9 states the law as it already is, it is not necessary for it to be in this bill.
If anything must be said about the relationship between the text of the bill and the text of the Treaty, it would be more useful to state that the text of the Treaty takes precedence in the case of a conflict between the text of the Treaty and the text of the bill. The best place for this statement is the Legislation Act 2019.
Part 2: more coherent and workable structure
This bill would work well in 3 Parts.
The commencement clause would provide for Parts 1 and 2 to come into force on a date to be specified by Order in Council and for Part 3 to come into force on a fixed date.
Part 1 would contain the principles of the Treaty.
Part 2 would contain consequential amendments.
Part 3 would specify the question for the referendum, how the referendum is to be conducted, the limits on spending, and everything else needed for a well-run binding referendum. It would also deal with the consequences of a Yes vote and a No vote, including the repeal of Part 3 if Parts 1 and 2 are to stay.
The reason for suggesting this structure is to end up, if the referendum produces a Yes vote, with an Act in 2 Parts, labelled 1 and 2, without the detailed provisions of Part 3. This structure is slightly unusual and may require a Cabinet direction on the drafting.
Conclusion
This is a summary of the submissions made—
Bill as it is
- clause 2 be given a heading that reflects its content accurately
- clause 2 be developed to contain the provisions needed in a bill setting up a binding referendum
- clause 3(b) be referred to in the Legislation Act 2019 by way of an amendment to that Act
- clause 4’s definition of Treaty settlement Act be tidied up
- clause 6 be replaced with a clause setting out principles expressing the ideas of sharing developed by courts and the Waitangi Tribunal since 1975
- clause 7(2) and (3) be deleted and a new clause 7(2) be inserted containing the substance of clause 8
- clause 8 be deleted
- clause 9 be deleted and the Legislation Act 2019 be amended by the addition of a provision saying that the text of the Treaty takes precedence over the text of the bill
More coherent and workable structure
- the bill be restructured so that, if the referendum produces a Yes vote, a tidy Principles of the Treaty of Waitangi Act will emerge.
Margaret Nixon
Margaret's musings 