Neil Sands
Parliament’s Justice Select Committee launched a mammoth run of oral submissions into the Treaty Principles Bill on Monday, hearing a range of viewpoints about the fundamentals of New Zealand’s democracy, race relations and rule of law.
The committee is set to hold 80 hours of hearings by the end of February after receiving more than 300,000 written and online submissions about the bill, which seeks to define in legislation the principles underpinning the Treaty of Waitangi-Te Tiriti o Waitangi.
“I believe it is a great day for New Zealand that our treaty is being debated in a free society,” the bill’s author ACT leader David Seymour said as proceedings began. “People should be able to have their say about the most important issues of the day and the laws under which they live.”
Others were less enthusiastic about the bill and its intentions, with critics labelling it “misconceived”, “poorly drafted” and “racist”.
“It is designed to subjugate, humiliate, assimilate and oppress iwi Māori,” National Urban Māori Authority chair Lady Tureiti Moxon said.
Outlining his rationale for the bill, Seymour argued it was fundamentally about treating people equally, saying he did not accept “that the only way to create equality between the Māori side and the British side of my ancestry is to create more legal inequality”.
“What we’ve seen in recent years, as the courts and Waitangi Tribunal have sought to define the principles of the treaty, is incompatible with freedom under the law, with a free society where each of us has equal rights,” he said.
‘Living treaty’
Prominent barrister Gary Judd KC backed the bill, saying Parliament needed to assert its sovereignty when it came to the rule of law.
“We have a situation where the sovereignty of the Parliament is under challenge in the courts and by members of the legal profession,” he said. “One of their weapons is the undefined principles of the treaty. This bill, if enacted, would remove that weapon.”
However, Moxon said it was “absurd” to believe that Māori ceded sovereignty when the treaty was signed in 1840, saying the bill’s authors misunderstood relations between Māori and the Crown.
“Limiting Māori rights to historical settlement disregards the living nature of te tiriti. It erases the Crown’s ongoing obligations and it silences our voices in a manner that directly impacts our whanau,” she said.
Former High Court judge and Waitangi Tribunal chair Sir Edward Taihakurei Durie, appearing on behalf of the NZ Māori Council, suggested parliamentary sovereignty was “an outmoded concept”.
“We should not be talking about it in this day and age,” he said. “Sovereignty means that one has all power to do everything.
“That may have suited the people who lived in the 1900s but I do not think it can be a proper approach for our times, when we must be talking not of parliamentary sovereignty but of parliamentary responsibility.”
Former attorney-general Chris Finlayson KC said Parliament had no right to “interfere” with a document signed in 1840.
He also argued that the judiciary’s interpretation of the treaty principles had been conservative in any case, making Seymour’s bill “much ado about nothing”.
Regardless of the committee hearings, the bill it set to be voted down later this year as National and NZ First both guaranteed it only limited support as part of the coalition agreement with ACT to form government.
‘Equality doesn’t work’
On the question of equality, Dr Chris Tooley of Whakatāne-based health service Te Puna Ora O Mataatua said the bill emphasised equal treatment, rather than equity.
“History shows from around the world, time and time again, that equality doesn’t work, nor does the needs-based doctrine ever work,” he said. “To treat unequals equally is to simply reproduce and redeploy the existing power structures and privilege across society.”
Māori Law Society co-president Natalie Coates said the bill sought to “obliterate 40 years of jurisprudence” around the treaty.
“This bill violently strikes at the heart of te tiriti, our founding constitutional document,
“It’s one party to the treaty, the Crown, reimagining it in a completely novel way that strips out the primary guarantees and promises to Māori, the other party in ti tiriti. You can’t get more bad faith than that.”
Dr Rhys Jones, a public health specialist at the University of Auckland, said the bill was sowing division, eroding NZ’s constitutional fabric and enabling racist rhetoric.
“It’s allowing discourse that takes us further away from the solutions that seek to address inequalities and so I believe this bill is racist,” he said.
Blogger and political commentator David Farrar said there was a great deal of anxiety among the public around co-governance, which would be allayed if Parliament provided certainty by defining the treaty principles.
“I think a lot of the challenges we’ve faced over the last five to 10 years are because people are uncertain. They’re anxious about how interpretations about the treaty impact on them,” he said.
“You can say ‘leave it to the courts’, but ultimately these are political issues, they’re not judicial issues.
“You will not get the public acceptance, the legitimacy, if you just say ‘this is all going to be decided by the courts’ … I’d love to see Parliament step up and actually do its job.”
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