Following is the local board submission made on the Principles of the Treaty of Waitangi Bill.
The Waitākere Ranges Local Board submits as follows:
Introduction
The Waitākere Ranges Local Board has taken an active interest in issues regarding Māori. Our rohe includes the ancestral land of Te Kawerau ā Maki and we treasure our relationship with them. Hoani Waititi Marae is one of the most significant local community institutions and performs its goal of providing Manaakitanga well. We have always regarded our relationship with Iwi as important.
Our submission will comment on the process adopted to date, provide some comments on the individual principles contained in the Bill and how they compare to the currently understood Treaty principles, comment on the cost, and finish with a conclusion.
Process
In terms of the process adopted by the Government we consider the process to be poor.
Changes to the country’s founding document should be progressed carefully and systematically and respectfully. A consensus should be sought. The process needs to be carefully chosen and agreement with the Treaty partner about process should be a priority.
As the Treaty involves a pact between the Crown and Māori good faith requirements make it essential that the Crown takes time to discuss with Iwi to discuss the current situation, what the issues are and what may be the best way to progress resolution of any issues. After all it is an agreement. One party should not unilaterally change the terms of the deal. To attempt to do so is deeply damaging to Crown-Iwi relations.
The Bill has already caused disruption in the community. For many the proposal is an anathema to Māori Pākehā relationships which many of us wish to improve.
The Waitangi Tribunal has released two decisions both of which are heavily critical of the Bill and the process adopted.
In its second Judgment the Tribunal noted that “[t]he Crown’s process to develop the Bill has deliberately excluded any consultation with the Māori Treaty / te Tiriti partner.”
It also said:
“[T]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.”
And also:
“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.”
Even the Regulatory Impact Assessment is critical of the process adopted. The report said this:
“The lack of consultation with Māori on policy development is likely to leave Māori feeling alienated and excluded from meaningful participation in the direction of Aotearoa New Zealand’s constitutional arrangements.”
The Board supports these comments. In our view the process adopted to date has been appalling.
It is important that the suggested treaty principles for change are also commented on.
Article one
This says:
“Ko nga Rangatira o te wakaminenga me nga Rangatira katoa hoki ki hai i uri ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu – te Kawanatanga katoa o o ratou wenua.”
Loosely the Māori Chiefs ceded kawanatanga to the Crown which is essentially governance not sovereignty. It should be borne in mind that at the time the Treaty was signed there were an estimated 80,000 Māori in Aotearoa and only 2,000 Pakeha. It is exceptionally unlikely that Māori would have willingly ceded sovereignty to the Crown at that time and in those circumstances.
This is the finding of the Waitangi Tribunal which in 2014 concluded “the rangatira who signed te Tiriti did not cede their sovereignty. That is, they did not cede their authority to make and enforce law over their people or their territories. Rather, they agreed to share power and authority with the Governor. They agreed to a relationship: one in which they and Hobson were to be equal – equal while having different roles and different spheres of influence. In essence, rangatira retained their authority over their hapū and territories, while Hobson was given authority to control Pākehā.”
The Bill would replace Article one with the following principle:
“The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws … in the best interests of everyone; and … in accordance with the rule of law and the maintenance of a free and democratic society.”
The result would be the obliteration of rights to Māori reserved by Article one. As the Waitangi Tribunal has commented:
“Principle 1 is a statement of a new principle that bears no relation to article 1, 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.”
If Māori had intended to cede tino rangatiratanga to the Crown, the Treaty would have said this. It did not because the drafters knew that Māori would not have signed if it had.
Article Two
This states:
“Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu – ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia ko nga Rangatira o te wakaminenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o era wahi wenua e pai ai te tangata nona te wenua – ki te ritenga o te utu e wakaritea ai e ratou ko te kai hoko e meatia nei e te Kuini hei kai hoko mona.”
This preserves to Māori tino rangatiratanga or full control or sovereignty over their lands and estates and forests and fisheries and other things of importance to them while creating rights of pre-emption for the Crown.
This underlines the limited devolution of power contained in Article One. If Māori had intended to cede sovereignty, then Article one would have referred to “tino rangatiratanga” and not to “kawanatanga”.
The Bill would replace this article with the following provision:
“(1) The Crown recognises, and will respect and protect, the rights that hapū and iwi Māori had under the Treaty of Waitangi/te Tiriti o Waitangi at the time they signed it.
(2) However, if those rights differ from the rights of everyone, subclause (1) applies only if those rights are agreed in the settlement of a historical treaty claim under the Treaty of Waitangi Act 1975.”
Essentially all treaty rights that have not been the subject of the settlement of a claim would be extinguished although Section 8 of the Bill appears to preserve the rights of Iwi to still apply to the Waitangi Tribunal. But the rights to seek to enforce treaty rights to the Courts would be lost. And it is difficult to understand how the two different sets of principles could work. The Bill appears to say that for some purposes the original text of the Treaty applies but for other purposes the principle as set out in the Bill applies.
And the principles contradict. The treaty recognises that Māori sovereignty was preserved. The principle in the bill reduces Māori rights to those that the Crown agrees to.
As stated in the Regulatory Impact Statement:
“This option is inconsistent with the Treaty/te Tiriti. It 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. The Tribunal made a similar statement in their report when they referenced expert evidence that stated rangatiratanga was not something “the Crown has the power to bestow”. For the Crown to assert that “overstates the kāwanatanga powers of the Crown”. It reduces indigenous rights to a set of ordinary rights that could be exercised by any group of citizens.”
The potential limitation of claims is disturbing. As an example, the Te Reo decision by the Waitangi Tribunal in the 1980s has contributed to the resurgence of Te Reo as a living language. This renaissance has played an important role in New Zealand establishing its identity. Preventing these sorts of claims will adversely affect the vitality of Te ao Māori.
Article Three
This states:
“Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini – Ka tiakina e te Kuini o Ingarani nga tangata Māori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani.”
This grants rights as British Subjects to all Māori and contains a Crown promise to protect Māori in the exercise of their rights.
This is what the Bill says:
“(1) Everyone is equal before the law.
(2) Everyone is entitled, without discrimination, to—(a) the equal protection and equal benefit of the law; and (b) the equal enjoyment of the same fundamental human rights.”
The principle contained in the Bill essentially reasserts rights that already exist under the New Zealand Bill of Rights Act 1990 or the Human Rights Act 1993. It distorts the debate because proponents will accuse opponents of not respecting fundamental human rights whereas these rights have already been protected under other legislation.
The principle also leaves out the Crown promise to protect Māori’s interests under the treaty.
Cost
It is noted that the costs of conducting this hearing are significant. And that right now many community organisations who perform outstanding work are facing significant cuts. And the Health sector as well as other sectors is facing major challenges. The Local Board believes that there are better uses of the resources required to consider this bill, especially given that the National Party and the New Zealand First Party have pledged that the bill will not proceed past second reading.
We believe that this bill is particularly frivolous in a time of recession when the Government is reducing “unnecessary” spending and the Bill has no support from the other Government Parties.
It will cost millions, create tension and division and achieve nothing, Surely there are other priorities.
If confirmation is required it is noted that the Prime Minister Christopher Luxon has said this about the bill:
“You do not go negate, with a single stroke of a pen, 184 years of debate and discussion, with a bill that I think is very simplistic.”
Conclusion
A discussion about the role and the future of the Treaty is important. But the way that this Bill has been promoted is disrespectful, unilateral and of itself is a breach of the Treaty. The Treaty relationship is long standing, fundamental to our country and based on good faith between the parties. Proceeding with this bill is an anathema to all of this.
We submit that the Bill should not be proceeded with in any form.
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