The Treaty Principles Bill Submission to Select Committee, from Kahukuraariki Trust.
Ko Wai Ahau? (Who are we?)
The Kahukuraariki Trust is the post settlement governance entity that represents the collective Iwi members of Ngātikahu ki Whangaroa (original claimant group of approximately 3000 tribal members), whose area of interest lies in the Far North between and inclusive of the Mangonui and Whangaroa Harbour’s.
The iwi is bordered by Ngāti Kahu to the north-west and Ngāpuhi to the south-east.
In September 2001, the Crown recognised the mandate of the Ngātikahu ki Whangaroa Trust Board to negotiate on behalf of its people. The Crown and Ngātikahu ki Whangaroa Trust Board signed Terms of Negotiation in October 2004. An Agreement in Principle (AIP), was signed in December 2007, and again in July 2014. In 2017, the Ngātikahu ki Whangaroa settlement Act was passed through parliament.
Today the Trust is the kaitiaki of those assets returned to it through the settlement, to manage on behalf of the people of Ngātikahu ki Whangaroa. The Trust Board comprises 8 Trustees representing the 8 Marae within the tribal boundaries. They are:
Taemaro
Waimahana
Taupo Bay
Mangatowai
Otangaroa
Waihapa
Waitaruke
Te Komanga
(Kahukuraariki is the common ancestress of the people of Ngātikahu ki Whangaroa).
Proposed Objectives of the Bill
The bill’s proposed objectives are as follows:
• create greater certainty and clarity to the meaning of the principles in legislation:
• promote a national conversation about the place of the principles in our constitutional
arrangements:
• create a more robust and widely understood conception of New Zealand’s
constitutional arrangements, and each person’s rights within them:
• build consensus about the Treaty/te Tiriti o Waitangi and our constitutional
arrangements that will promote greater legitimacy and social cohesion.
There is a common theme across all objectives which infers there is a lack of clarity regarding te Tiriti o Waitangi, the principles, and our constitutional arrangements. If the problem identified by the bill’s authors is a lack-of-understanding, the remedy should be educational in nature, not legislative reform. The fact that this bill seeks legislative reform as a remedy to inadequate understanding suggests that the underlying driver for this legislation is political expediency rather than remedial.
We uphold the position that te Tiriti o Waitangi is the only valid treaty signed between Māori and the Crown in 1840. Accordingly, we stand by the findings of the Waitangi Tribunal that there is no moral obligation to find a middle ground between the English draft text and te Tiriti o Waitangi, a task for which the principles were initially developed.
An inadequate understanding of the principles does not legitimise this bill. The principles have been discussed through the court system and the Waitangi tribunal since 1975, defined and applied since 1987, are today taught through the New Zealand school system, and are broadly accessible to the public through Treaty workshops in all major cities and townships across Aotearoa. There are peer reviewed papers, books, reports and other online and printed
resources. There is no shortage of information that speaks to the meaning of the principles in legislation.
We note that the ACT party have dismissed expert concerns regarding the treaty, the bill and its impacts in ways that are harmful and inflammatory. Where translation experts have raised concerns about the mistranslation of te Tiriti o Waitangi and senior legal experts have raised concerns about the constitutional implications of the bill, Act’s leader has suggested that such concerns deny other people their opinion, suppress the democratic rights of New Zealanders, and makes broad, and unsubstantiated accusations of misinformation.
We posit that such commentary from a senior minister creates a climate of fear and hate. This hate is directed primarily towards Māori in general but also towards qualified experts who should be valued assets to our legislative process. It is precisely the contribution of expertise and sound evidence which underpins rationale governance and social cohesion.
These are not the grounds upon which to initiate a healthy, safe conversation about te Tiriti o Waitangi and our constitution. Conversely, this bill will create uncertainty, unpredictability, confusion, and give rise to even more systemic racism.
We note that the Crown received official advice preceding the introduction of the bill, describing it as “likely contentious” and advising that:
• The bill has the potential to come into conflict with the rights or interests of Māori under the Treaty because it is not derived from the spirit or the text of the Treaty.
• Developing a bill that purports to settle the Treaty principles without working with the Treaty partner will be seen as one partner (the Crown) attempting to define what the Treaty means and the obligations it creates.
• The bill will likely breach relevant binding international standards and obligations,
such as the international covenant on Economic, Social and Cultural Rights.
• The bill removes an effective measure in our legal system to enforce the right of Māori
to exercise self-determination, and their cultural aspirations.
We conclude:
• that the proposed rationales for the bill are flawed and disingenuous in nature. The Crown was pre-advised that it would be contentious and contribute to the reduction of social cohesion.
• the lack of clarity proposed in the bill’s rationale is not due to a lack of opportunity to understand the principles, but a lack of willingness to engage with the expertise and evidence relating to te Tiriti o Waitangi.
• that this bill is the wrong mechanism for achieving greater clarity and understanding, nor does it attempt to, rather it creates further confusion, discord, and shortcuts the process of understanding by replacing the principles altogether.
• the attempt to replace the existing principles, while suggesting that there is still a lack of clarity about the benefits or harm of those principles, indicates a lack of good faith.
• the bill’s authors are not seeking to understand, they are seeking to replace. This amounts to an egregious abuse of legislative power and disregard for basic democratic processes.
Proposed Principle 1
The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws, —
(a) in the best interests of everyone; and
(b) in accordance with the rule of law and the maintenance of a free and democratic society.
We agree with the Waitangi Tribunal that in spite of the third article of te Tiriti o Waitangi which promises the same rights and privileges as British subjects, it is clear that Māori have not received equal treatment at the hands of the Crown. The Waitangi Tribunal archives are replete with historical and contemporary examples where Māori have been unfairly discriminated against by the Crown. There is simply no historical basis upon which to accept that the Crown operates in everyone’s best interests and even if this were demonstrable, this proposed principle holds no basis in either Te Tiriti o Waitangi or the English text.
Further to the suggestion that this is done in accordance with the rule of law and maintenance of a free and democratic society, we again note that the most senior legal experts in the country have raised concerns about the bill, which were dismissed by Minister Seymour as elitist and undemocratic in nature. We also note that the Waitangi Tribunal, as a judicial body of this Government, and the Human Rights Commission are essential components to New Zealand’s democratic structure. Importantly, both of these bodies provide important functions within our democratic processes in limiting racist inequity resulting from racist institutional practices of the Crown. Both of these bodies have been ignored, dismissed and disrespected by senior
members of this Government.
These incidents underscore valid concerns for the ability of this Government in particular, to operate in accordance with the rule of law and the maintenance of a free and democratic society. Moreover, we note that this principle seeks to erase not only the restraints placed upon the Crown through its own democratic checks and balances, but also that it seeks to erase the restraints placed upon kāwanatanga by rangatiratanga.
We agree with the Waitangi Tribunal opinion that the assertion of unilateral authority of kāwanatanga, with no mention of rangatiratanga and the limitations that places upon rangatiratanga, contradicts rulings by both the tribunal and other New Zealand courts of law.
The erasure of rangatiratanga within this context is not only a standalone act of racism, as it is exercised against a right that is unique to Māori, but it will also undoubtedly exacerbate racial inequity for Māori, as the principle of rangatiratanga affords important protections for Māori
against colonial harm.
We note that Minister Seymour has characterised the unique protections afforded to Māori through te Tiriti o Waitangi as unfair privilege and a form of inequity. That language again inflames racial tensions across Aotearoa and directs hate and mistrust towards Māori. We strongly refute Minister Seymour’s position that the unique rights of Māori affirmed in te Tiriti o Waitangi are in any way unjust. Indigenous rights stem not only from an inherent relationship to place, but also from a longstanding history of colonial abuse and denial of Indigenous humanity.
Such a history necessitates unique protections both to protect Māori from new harm, as well as an opportunity and breathing space to address and heal from historical harm. The removal of unique protections would therefore expose Māori to new harm, whilst exposing them to ongoing harm. This again casts doubt upon the capability of this Government to operate within the rule of law, and we note that this doubt is cast not only in relation to Māori, but also in relation to ethnic communities, who identified that their own experiences of racism in Aotearoa were inextricably connected to the fact that New Zealand is a colonised nation.
Proposed Principle 2
(1) The Crown recognises, and will respect and protect, the rights that hapū and iwi Māori had under the Treaty of Waitangi/te Tiriti o Waitangi at the time they signed it.
(2) However, if those rights differ from the rights of everyone, subclause (1) applies only if those rights are agreed in the settlement of a historical treaty claim under the Treaty of Waitangi Act 1975.
We support the broader Māori – Iwi, hapu, whanau position that the Crown has no authority to define or determine Rangatiratanga, which is a collective and inalienable right. Indigenous rights are not sourced from treaty settlements, or even from treaties themselves. Indigenous rights are inherent and formed from Indigenous primacy on this land and these waters.
This proposed principle erases the inherent nature of rangatiratanga and makes it subject to Crown processes, which is in itself an act of racialised subjugation. Iwi and hapu are not compelled to undertake a settlement process, and many have very valid reasons for not settling with the Crown. To make the recognition of Māori inherent rights dependent upon Māori participation in Crown processes amounts to an act of state coercion upon Māori, an objective act of racial inequity and undoubtedly one that will continue to produce and normalise racial inequity for Māori.
Furthermore, there are multitudes of Māori who have been culturally dispossessed by the historical actions of this Crown and are yet to identify their iwi. Their participation in te Ao Māori may occur through urban settings, and they passionately identify as Māori, however they are still on their journey to heal the cultural and familial rifts created through Crown policies of displacement and assimilation. Making the inherent rights of these mokopuna conditional upon their connection to the iwi, compounds the already manifest injustice of being culturally dispossessed and displaced by the Crown in the first place.
Proposed Principle 3
(1) Everyone is equal before the law.
(2) Everyone is entitled, without discrimination, to —
(a) the equal protection and equal benefit of the law; and(b) the equal enjoyment of the same fundamental human rights.
We find this principle to be disingenuous in light of the well documented history of the Government policies and legislation which discriminate against Māori and other marginalised, ethnic groups in Aotearoa – which forms the context for racialised inequity, and the basis for targeted policies and unique protections for racialised minorities.
It is disingenuous and ahistorical to frame unique protections for racialised minorities and their inherent rights as a form of unfair privilege. While principles and values of equal treatment are important, they must be approached within the context of the history that has created inequity in the first instance, or else they will have the converse consequence of maintaining and perpetuating racialised inequality of outcomes.
Further, when Europeans arrived, the inherent rights of Māori to the maintenance of our distinct legal and political systems remained. They did not magically appear due to European presence, nor did European presence extinguish such rights, although they did routinely violate them.
Nevertheless, the rights of Māori which Minister Seymour routinely characterises as being unequal (and therefore unfair and undemocratic), are unique because they reflect the status of Māori as first peoples.
Such rights are necessarily unique because they describe the difference between who was here first, and who arrived later, and the subsequent unique experience of having ones Indigenous rights consistently, and very unfairly, violated by colonial force. We agree with the findings of the Waitangi Tribunal who noted that Māori served the Crown in two world wars seeking the equal treatment they had been promised through Te Tiriti.
However, New Zealand’s history clearly shows that Māori have still not been treated equally. These inequities have persisted into the 20th century, and data as well as reports from the United Nations Human Rights Council and Committee on the Elimination of Racial Discrimination continues to highlight the disadvantages and discrimination Māori experience today in areas such as health, justice, housing, child welfare, education, employment, and poverty.
This is contrasted by the immigration of British settlers who fled the inequity of their own homelands, arriving here on these shores with a vision of establishing a new just future for themselves, and then, as early settler politicians, replicated the inequitable systems of Britain but placed themselves in positions of privilege to reap the benefits, at the expense of Māori and then other racially marginalised populations.
The racialised, unequal treatment towards te Tiriti o Waitangi exemplified by this bill again underpins the inability of this Government to secure equal protection and equal benefits for Māori, and the importance of listening to and respecting important democratic institutions such as the Waitangi Tribunal, the Human Rights Commission, and New Zealand’s own Courts of Law.
Conclusion
In conclusion, the Treaty Principles Bill not only presents significant challenges to addressing the entrenched structural racism rooted in New Zealand’s colonial history, but also exacerbates racial tensions, compounds racial injustice, and further damages the relationship between
Māori and the Crown.
By weakening the political status and protective provisions of Te Tiriti o Waitangi, the bill risks perpetuating racial inequities and eroding the foundations of social cohesion and justice. As such, the bill represents a further stain upon New Zealand’s democratic integrity and national character.
We feel there is need for a genuine commitment to upholding Indigenous rights, embracing expert input, and fostering an inclusive national dialogue grounded in good faith and historical context.
We urge the select committee and the government:
• to reject this bill in its entirety, and
• to prioritize collaborative pathways with Māori that honour the text of Te Tiriti o Waitangi, uphold human rights, and move towards a more equitable Aotearoa.
**The Trust gives credit and acknowledges the paper “TUKU KŌRERO MŌ TE PIRE TAKAHI TIRITI,
Toitu te Tiriti, Maranga Mai NICF Working Group on the People’s Action Plan Against Racism,” in
the formation of this submission.
References
- Waitangi Tribunal He Whakaputanga me te Tiriti: the Declaration and the Treaty (Wai 1040, 2014). p22
- David Seymour: My letter to the organisations who wrote the Prime Minister about Act’s Treaty Bill 30 July 2024
- Government confirms leaked document was a ministry Treaty Principles bill memo RNZ 19/1/2024
- Ngā Mātāpono p166
- David Seymour: My letter to the organisations who wrote the Prime Minister about Act’s Treaty Bill 30 July 2024; ibid; ACT responds to Court of Appeal decision; Māori lawyers call Shane Jones’ Waitangi Tribunal comments ‘inappropriate.’
- Ngā Mātāpono p111
- ‘Corrosive obsession with a person’s race’: David Seymour on Māori Wards
- Ki te whaiao, ki te ao Mārama Community Engagement Report for developing a National Action Plan Against Racism
- ibid