In the third 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 the tribunal says about specific breaches of the Treaty/te Tiriti, and the damage those breaches will cause.

Read the first part of the series here and the second part here

The tribunal begins this section of its report by summarising what the Treaty Principles Bill represents, stating that “the Crown has agreed to a proposal that will unilaterally redefine the manner in which the constitutional status of the Treaty/te Tiriti is applied in law, and it does so in favour of a distortion of the Treaty/te Tiriti and its two texts.” It describes this as a breach of the principles of kāwanatanga and rangatiratanga, representing “an unbridled exercise of kāwanatanga power”.

The failure to consult with Māori, the failure to take advice and the determination to pursue the bill in spite of the harms it will cause constitutes “a breach of the duty to act reasonably and in good faith, and the duty to make informed decisions”, says the tribunal. The reliance on misrepresentations of the te reo text of te Tiriti, and the reliance on the myth that the current Treaty principles lack clarity, are also heavily criticised. 

Echoing the earlier comments about an unbridled exercise of power, the tribunal says the Treaty Principles Bill “would unsettle the constitutional dynamic between the Crown and Māori – between kāwanatanga and tino rangatiratanga – by unilaterally asserting the Crown’s dominance and undermining the guarantee of tino rangatiratanga”.

The tribunal also finds that this breaches the principle of partnership, and the extinguishment of the Crown’s current Treaty obligations constitutes a breach of the principle of active protection. It describes breaches of the principles of good government, and points out that under the “new” principles, Māori would no longer have access to the courts and the Waitangi Tribunal for breaches of their rights under te Tiriti (ie, their actual rights, not the fictional ones the bill would provide for), in violation of the principles of redress and equity.

‘Revolutionary constitutional change’

Reiterating its view on the damage the Treaty Principles Bill is already causing, the tribunal restates that even if the bill were only supported to select committee, “the Māori-Crown relationship will be damaged, possibly undoing years of progress in restoring the relationship through Treaty settlements and other measures”. Again, this bears repeating, given that “only as far as select committee” has been the most common refrain of the prime minister in “defence” of the bill so far. Warning of the dire consequences that may occur if the bill is taken beyond the select committee stage, the tribunal predicts that “if it is enacted, a revolutionary constitutional change will be the result”.

As for the legal impacts of the bill, the tribunal says it “would remove Crown obligations under the existing Treaty principles, and remove Treaty/te Tiriti guarantees, rights, and protections for Māori at law, replacing them with statements about the rights of the Crown and all New Zealanders”. The government’s actions to date “have made the claimants feel like second-class citizens in their own country”, it adds.

On the breadth of the damage legally, the tribunal notes that “the bill will completely change the meaning and effect of every Treaty clause in legislation… in a manner that is highly prejudicial to all Māori”. This would create uncertainty in the law, lead to enormous costs in terms of litigation, and entail a complete reshaping of the constitutional foundations of this country. As noted earlier, it would also undermine the Treaty settlement process, given that the basis of Treaty settlements has been Crown apologies based on the established Treaty principles. 

So what happens next? 

The tribunal makes four overarching recommendations, the most relevant of which for the purpose of the Treaty Principles Bill is that the proposal be abandoned entirely. The tribunal is unequivocal about this, unsurprisingly given how comprehensively it dismisses the government’s stated rationales for the bill. It also recommends that the planned review of Treaty principles in legislation (which this article has focused less on, but which has the potential to be just as damaging as the Treaty Principles Bill), be put on hold and reconceptualised, in partnership with Māori. It suggests the Māori-Crown Relations Cabinet Committee be reformed, and that the government begin a process (again, in partnership with Māori) “to undo the damage to the Māori-Crown relationship and restore confidence in the honour of the Crown”.

Good luck with that last one. So far, the prime minister seems intent on making things worse, with his repeat of the claim recently that Māori ceded sovereignty to the Crown doing further damage to a relationship under more strain than it has been since the Foreshore and Seabed debate of 2004. On that note, further Waitangi Tribunal hearings got under way last week on the government’s proposed changes to the Marine and Coastal Area Act, which would severely restrict the ability for Māori to be awarded customary title over the foreshore and seabed. Nine months into the parliamentary term, the government’s relentless assault on Te Tiriti o Waitangi shows no sign yet of abating. 

Returning to the Treaty Principles Bill, it has been reported that Cabinet may consider the draft bill as early as next week. In doing so, will Cabinet take heed of the tribunal’s warning about the damage that may be done should the bill be introduced? So far, sadly, that appears unlikely, but either way we should hear more soon. We await the government’s next steps.