Despite coalition partners categorically ruling out support beyond a first reading, there could still be hope for Act’s controversial bill.

The Treaty Principles Bill has seemingly been put out of its misery before seeing the light of day, after the prime minister and NZ First’s Shane Jones made it clear their parties would not support the bill beyond its first reading. But there’s more than one way to skin a cat.

“The Treaty of Waitangi Principles Bill will not be voted for by New Zealand First beyond its introduction into parliament,” Jones recently told those gathered at Koroneihana celebrations for Kīngī Tūheitia Pōtatau Te Wherowhero VII in Tūrangawaewae. 

Sharing the sentiment, prime minister Christopher Luxon used his speaking opportunity at Koroneihana to make it clear that his party “will not support the Treaty Principles Bill beyond the first reading”.

In response, David Seymour criticised his fellow coalition ministers for being “disrespectful and anti-democratic” by dismissing the bill before it was presented to the house. 

Adding fuel to the fire, Winston Peters yesterday suggested that, despite Luxon’s clear stance that the bill would not progress beyond its first reading, there could be room for reconsideration if compelling new evidence arose. This directly contradicted the commitments made by Jones and Luxon at Koroneihana to vote down the bill at the second reading and highlights the fractures starting to appear in the coalition government.

According to Act, the intention of the Treaty Principles Bill is to establish in law that the principles of the Treaty are what the three articles of the Treaty “actually” say: that the New Zealand government has the right to govern (ie that Māori ceded sovereignty – a disputed point); that the authority and ownership of land and property of all New Zealanders is protected; and that all New Zealanders are equal under the law. Luxon recently agreed with the first of those points, saying he believed “the Crown is sovereign” after being questioned by Chlöe Swarbrick in the House as to whether or not he believed Māori ceded sovereignty via the Treaty. 

The bill, which is yet to be drafted, and likely to be introduced in November, has been called one of the potentially most divisive bills to be introduced in the nation’s history. An apparent bottom line in the National-Act coalition arrangement, the bill is based on existing Act policy – though Seymour has hinted the wording may change – and National has committed to support it to the select committee stage. 

David Seymour and Act would have been aware from negotiations that the bill would not be supported beyond its first reading by the coalition partners, but there would also have been an understanding that there could be other ways to get the bill across the line.

Usually, if a bill fails to gain the necessary majority at the second reading, it is effectively halted, and the legislative process for that bill ends. While the Treaty Principles Bill will apparently be voted down at the second reading, there are alternative paths for the bill to become legislation. 

I suspect one such path being seriously considered by Act is what’s known as a reasoned amendment. Chapter 38, Section 38.3.2 of Parliamentary Practice in New Zealand provides the procedural framework allowing a member of parliament to propose a reasoned amendment. This effectively offers an alternative course of action to the second reading of the bill. For example, if members of the house do not wish to proceed with the second reading of a bill, Seymour could propose an amendment that the bill be put to a public referendum instead. While a reasoned amendment could theoretically suggest that the government consider holding a referendum, this would not automatically result in a referendum being held. For a referendum to take place, separate legislative measures would need to be introduced and passed to authorise the referendum, which goes beyond what a reasoned amendment alone could accomplish.

Should the amendment be proposed, it would be debated by the members of Parliament. The debate would focus on the merits of the proposed amendment, which could include a call to delay or reconsider the bill rather than passing it through the normal legislative process. Members of the house would then vote on whether or not to accept the amendment, which could be a party vote or a conscience vote. If deemed suitable for a conscience vote, each member of the House would be eligible to vote according to their own conscience, not necessarily aligning with their party’s stance. However, if a referendum were to be considered as an alternative way forward, this would require a separate legislative process, including the introduction and passage of a Referendum Bill. This is something Seymour and his colleagues would need to navigate carefully but it could keep the door open for a Treaty Principles Bill.

Recently, New Zealanders voted on referendums relating to the legalisation of recreational cannabis and euthanasia. While Seymour initially indicated his party’s Treaty Principles Bill would have a public binding referendum as part of a commencement clause, there’s nothing in the National-Act coalition agreement that refers to any referendum regarding this bill.

Despite the Waitangi Tribunal recommending the bill be abandoned, there is no indication that National intends to break its coalition agreement promise. Still, the Treaty Principles Bill faces significant hurdles, with key coalition partners signalling their intent to halt its progress after the first reading. However, as the political chessboard shifts, the bill’s fate is far from sealed. David Seymour and Act may be poised to leverage the democratic process in a bold move, proposing a referendum to bypass parliamentary gridlock and take the issue directly to the people. While this strategy would set a new precedent in New Zealand’s legislative history, it underscores the deep divisions and complexities surrounding the Treaty Principles Bill. As the debate unfolds, the future of the bill – and perhaps the nation’s interpretation of the Treaty – hangs in the balance.

This is Public Interest Journalism funded by NZ On Air.