In the first of a three-part series on Ngā Mātāpono, the Waitangi Tribunal’s interim report on the proposed Treaty Principles Bill and Treaty provisions review, Luke Fitzmaurice Brown explains what was said about the proposed text of the bill.

Last month the Waitangi Tribunal released its long-awaited report on the proposed Treaty Principles Bill and Treaty provisions review. The tribunal found that both the proposed bill (a product of the National-Act coalition agreement) and the proposed review (a product of the National-NZ First coalition agreement) will breach the principles of the Treaty of Waitangi/Te Tiriti o Waitangi and cause prejudice to Māori. 

But what specifically did the tribunal say about these policies, and what happens next? This three-part series describes the tribunal’s findings, with a particular emphasis on the Treaty Principles Bill, given it’s most likely to be introduced first. This first part focuses on what the tribunal said about the proposed text of the bill itself. 

Remind me what’s being proposed again? 

Though the final text of the bill is yet to be publicly confirmed, we know that the coalition agreement requires it to be based on existing Act Party policy, and the Tribunal proceeded with their inquiry on that basis. That policy outlines three “revised” (read: new) principles of the Treaty, which are: 

• Article 1: “kawanatanga katoa o o ratou whenua” – the New Zealand government has the right to govern all New Zealanders
• Article 2: “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: “a ratou nga tikanga katoa rite tahi” – all New Zealanders are equal under the law with the same rights and duties.

The tribunal confirmed what experts have said all along – that these are not an ‘“interpretation” of the existing words and principles of the Treaty/te Tiriti, they are a fabrication. They describe these “new” principles as a redefinition of te Tiriti, stating that “the meaning and effect of the Treaty/te Tiriti will be completely changed”, and that “this would have enormous constitutional implications”. They also note, as a group of licensed te reo Māori translators did earlier this year, that the “selective use of words from the Māori text of the Treaty/te Tiriti undermines its meaning and intent”.

So how does this align with what the Treaty/te Tiriti actually says? 

Regarding the “new” article one, the Tribunal point out that this “does not refer to Māori, with whom the Treaty/te Tiriti was signed, or the Crown’s guarantee of tino rangatiratanga which exists equal to, and limits the Crown’s exercise of, kāwanatanga”. Commenting on this, they say that “this bald assertion of unilateral power belies the relationship intended by the Treaty/te Tiriti”. In some ways the tribunal points out the obvious here – the Treaty/te Tiriti was an agreement between the Crown and Māori, and erasing the Māori Treaty partner completely changes that agreement. 

Regarding the “new” article two, they state that the reference to “chieftainship” in the context of private property rights, and as something for “all New Zealanders”, “flattens and warps the Māori concept of tino rangatiratanga used in article two” of te Tiriti. Tino rangatiratanga “was something promised to Māori and not to ‘all New Zealanders’ (as the term ‘New Zealanders’ is understood today).” The tribunal notes that the historical evidence, preamble of the Treaty/te Tiriti and the actual text of the te reo Māori version make that clear. They also note that the guarantee of tino rangatiratanga was over far more than just private property, including (for example) kāinga and taonga katoa, which are both holistic concepts. Finally, they point out that rangatiratanga applying to individuals makes no sense – rangatiratanga is a tikanga-based concept that applies to Māori collectives (primarily hapū), and its application to individuals distorts this meaning.

The tribunal then discusses the attempt to dilute current understandings of article three, saying that “what this and the other principles are notably silent on are the duties and obligations assumed by the Crown in 1840 and that it agreed to honour in all its future dealings with Māori”. In other words, “article three” of the proposed Treaty Principles Bill again omits the essence of te Tiriti entirely. The tribunal also says that “the focus of ‘Principle 3’ on formal equality in 2024 obscures the reality of an unequal balance of power between Māori and the Crown, and the many inequities and barriers of the Crown’s making that have made the article 3 guarantee an illusory one for many Māori”.

‘No resemblance to the text or spirit’

Overall, the Tribunal says that the proposed text of the bill “does not accord with the text or spirit of the Treaty/te Tiriti, or the historical context in which the Treaty/te Tiriti was signed”. If the bill were enacted as proposed, they say, “it would fundamentally change the nature of the partnership between the Crown and Māori… by substituting existing Treaty principles for a set of propositions which bear no resemblance to the text or spirit of the Treaty of Waitangi/te Tiriti o Waitangi.”

The tribunal is unequivocal in its assessment of how far this would depart from what the Treaty/te Tiriti actually says, and it is worth quoting the report here in full:

“These propositions refer to the rights of the New Zealand government and all New Zealanders but are conspicuously silent regarding the existence and rights of Māori under the Treaty/te Tiriti or the Crown’s obligations under the same. In sum, it is clear to us that the passage of the Treaty Principles Bill featuring the currently proposed definition of the principles would significantly alter the constitutional foundation of government in ways likely to undermine or extinguish Māori rights and interests and conversely to elevate the rights of the Crown.”

The tribunal members also note that redefining the principles in this way would largely undermine the Treaty settlement process. Big old can of worms there, prime minister. You sure you want to go down that path?