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

Read the first part of the series here

In the part of its report that examines the potential effects of the Treaty Principles Bill, the tribunal first looks at the impact of the bill on social cohesion. It says the bill “will have significant impacts on society and on the relationship between the Crown and Māori”, which “would be the case even if the bill did not proceed past the select committee stage, although the impacts would be more serious if the bill were to be enacted”. 

This is important, because since the release of the report, the largest coalition partner has continued to say there will be no harm done by the bill, because National intends to vote against it at second reading. Here the tribunal directly rejects that claim – saying that even sending the bill to select committee will cause harm. Later in the report the tribunal reinforces this point, saying that damage will be done “whether the bill proceeds beyond select committee or not”, and “will only continue to grow the longer the policy continues to exist”. 

The tribunal also notes warnings from officials that there is “a significant risk of damaging the Māori-Crown relationship, because the bill could be seen as an attempt to limit the rights and obligations created by the Treaty. The damage caused by the bill could have flow-on effects on all aspects of the relationship.” On the bill’s broader effects, the tribunal says “Māori will suffer the impacts of division and social disorder, bearing the brunt of blame for it. A responsible Crown should take heed of these warnings as to the prejudicial impacts of its policy and seek consensus, not division and disorder.” The tribunal strikes an almost foreboding tone here.

The tribunal then analyses the government’s stated rationale for the bill. The first claim is that the bill is needed because the current Treaty principles are uncertain. The tribunal rejects this, saying that “a significant degree of certainty already exists regarding the content and application of the principles of the Treaty/te Tiriti”. This is found in tribunal reports, court decisions, and in public sector policy guidance. The report itself is an obvious example of how the nature and content of the existing Treaty principles is far more accessible than some people claim – the tribunal spends a whole chapter explaining what the relevant principles are, what those principles entail, and how they apply to this particular issue. 

The tribunal also notes that this myth of “needing certainty” has been weaponised against Māori before, notably when the Foreshore and Seabed Act was debated, and passed, in 2004. Additionally, even if uncertainty were a real problem, which the tribunal say it is not, the Treaty Principles Bill would make that problem worse, not better, by disrupting decades of settled law on what consistency with the Treaty/te Tiriti requires. 

Addressing the claim that the bill promotes equality, the tribunal says that a range of laws already do this, and that conversely the Treaty Principles Bill would breach a number of rights and freedoms, not uphold them. They describe the bill as being “contrary to the fundamental rights and freedoms of Māori as indigenous peoples as it seeks to limit their right to self-determination, the development of their own institutions, policy, and laws within the parameters of the nation state”.

It’s “a solution to a problem that does not exist”, says the tribunal.“In sum, there are existing protections for the rights of New Zealanders in domestic and international law. This means that the bill is not required to fill a vacuum of protection.”

Finally, the tribunal discusses the idea that there is value in having a national conversation about Te Tiriti. To this it says that “having a conversation about the Treaty/te Tiriti is important. How it is facilitated is the issue. The problem with the Treaty Principles Bill is that it has been unilaterally instigated by a minor political party and then adopted as Crown policy. In adopting that policy, the Crown has agreed to circumscribe the parameters of that constitutional conversation without engaging its Treaty partner.”

Here the tribunal is saying that of course there might be some value in a national conversation about Te Tiriti o Waitangi. Most Māori and a huge number of non-Māori people are up for having that conversation, and many people have been doing so for decades. Just within the last 10 years, the Matike Mai report, He Puapua, and the government’s own Constitutional Review have all been attempts to start or further that conversation, grounded in truth, not misinformation. 

But that broader national conversation will do no good if it is grounded in ignorance, and it will cause harm when it is done in bad faith. The tribunal’s report is another reminder of that. It is also a reminder of the need to respond to actual problems, not imagined ones, and the harm that may occur if that does not happen. In my view, that harm is not a coincidence. That is what bad faith conversations are engineered to achieve.