The New Zealand government on Sept. 11 revealed its plans to move forward with drafting a controversial bill that would redefine the nation's founding document, te Tiriti o Waitangi/the Treaty of Waitangi, despite official advice opposing the policy. Associate Justice Minister David Seymour, leader of the ACT New Zealand Party who secured support for the Treaty Principles Bill in the government's coalition agreement last November, announced the cabinet's approval for the new policy and plans to introduce it to Parliament.

If enacted, the Treaty Principles Bill would replace the existing principles of the Treaty, first established by New Zealand's parliament in the Treaty of Waitangi Act 1975, and subsequently clarified by the courts and Waitangi Tribunal. The principles were developed to give legal recognition to the obligations arising from te Tiriti/the Treaty, which (like other treaties) is not directly enforceable in New Zealand's courts.

Te Tiriti o Waitangi, signed in 1840 between the British Crown and Māori (New Zealand's indigenous people), extended to the Crown a limited power of kāwanatanga (governance) over New Zealand's quickly expanding British settler population while guaranteeing the Māori tino rangatiratanga (ultimate power and authority) over their lands, their villages and all their treasured possessions, and granting Māori the rights and privileges of British subjects. As the Waitangi Tribunal found in its Te Paparahi o Te Raki Inquiry, the Treaty was not a document of cession but rather created a partnership between the parties, who agreed to share power.

The proposed principles that will be given to legislative drafters are:

1. Civil Government: The Government of New Zealand has full power to govern, and Parliament has full power to make laws. They do so in the best interests of everyone, and accordance with the rule of law and the maintenance of a free and democratic society.
2. Rights of Hapū and Iwi Māori: The Crown recognizes the rights that hapū (clans) and iwi (tribes) had when they signed the Treaty. The Crown will respect and protect those rights. Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreements with the Crown.
3. Right to Equality: Everyone is equal before the law and is entitled to equal protection and equal benefit of the law without discrimination. Everyone is entitled to the equal enjoyment of the same fundamental human rights without discrimination.

Official advice released Sept. 11 from the Ministry of Justice criticized the proposed principles for being inconsistent with te Tiriti/the Treaty. It recommended maintaining the status quo to avoid damaging the relationship between the government and Māori.

The proposed principles bear little resemblance to the original document. For example, the first proposed principle includes no reference to Māori signatories of te Tiriti and instead presents the agreement of kāwanatanga as a unilateral statement of governing authority.

Despite minor alterations to the proposed principles from previous ACT policy, scholar Luke Fitzmaurice-Brown (Te Aupōuri) charges that "the effect of the Treaty Principles Bill will be the same—it will radically change the legal and constitutional status of te Tiriti o Waitangi, essentially erasing it."

This guidance comes less than a month after the Waitangi Tribunal, an inquisitorial body that investigates Crown breaches of the principles of the Treaty, called for the proposed bill’s abandonment.

At the celebration of the 18th coronation of the Māori King Tūheitia last month, coalition partners the New Zealand National Party and New Zealand First ruled out voting for the bill past the first reading stage, raising obstacles for the policy.

A draft version of the Treaty Principles Bill is expected to be complete by October 9.

From Jurist, Sept. 12. Used with permission.

Note: King Tūheitia Pootatau Te Wherowhero VII died Aug. 30 at the age of 69. (The Guardian, NYT)