Prime Minister Christopher Luxon appears to have given ACT Leader David Seymour more than he has been admitting in the proposals to go forward with a Treaty Principles Bill.
All along, Luxon has maintained that the Government is proceeding with the Bill to honour the coalition agreement.
But that is quite specific.
It simply commits National and ACT to “Introduce a Treaty Principles Bill based on existing ACT policy and support it to a Select Committee as soon as practicable.”
What that doesn’t say is that the Bill would go to a referendum.
It might be possible to argue that the phrase “existing ACT policy” covered that, but the proposal for a referendum was such a fundamental part of ACT’s election campaign that it would be odd if it were decided to obscure it in the coalition agreement.
Rather it looks more like the referendum has been included as a trade off for ACT agreeing to a clause purportedly guaranteeing hapu and iwi rights.
That clause in itself may provoke widespread Maori opposition because it would appear to extinguish Maoridom-wide rights, which are claimed under Article Two of the Treaty and its concept of tino-rangatiratanga.
Perhaps the most damning verdict on the proposal came from former Prime Minister and constitutional lawyer Sir Geoffrey Palmer, who called it a “political stunt”.
“It’s hardly a serious constitutional proposal,” he said.
“And it’s promoted by a party that has got 11 seats in the Parliament, got 8.6% of the vote, and 9% of the members of the 123 House.
“So it hardly has a policy mandate for this in the wider general public.”
Apart from that, it is already clear that Maori opposition to the Bill will be massive.
MPs from Labour and the Greens (and privately, some National MPs) are concerned that the Bill will plunge New Zealand into a long period of ongoing protests and possibly violence.
Seymour yesterday released the Cabinet paper proposing the Bill and that has set out a timetable which would see the Bill before the Select Committee for six months from November until mid-May next year.
That would span both Waitangi and Ratana and quite possibly a hui on the first anniversary of Kingitanga’s Kotahitanga Hui from January this year.
This year saw a large Hikoi arrive at Waitangi protesting the proposals for a Bill.
As a measure of how disruptive ongoing protest could be, the Springbok tour in 1981 lasted only nine weeks.
Seymour’s Bill would be before the Select Committee for twice as long, 19 weeks.
Ironically, Seymour’s argument for the Bill gets some sympathy across the House.
He sums it up in his Cabinet paper: “The Courts, the (Waitangi) Tribunal, and the public service are increasingly referring to a set of principles to justify actions that many New Zealanders view as vague and contrary to democratic values (e.g. equal rights for all citizens), including co-governance in the delivery of public services and even ethnic quotas within public institutions.
“The evolving nature of the principles’ application and interpretation is a source of uncertainty.
“Considering ongoing apprehension about the Treaty and its principles, the purpose of the Treaty Principles Bill is for Parliament to define the principles of the Treaty.
“This will help bring more certainty and clarity to the meaning of the principles in legislation and promote a national conversation about their place in our constitutional arrangements.”
The Regulatory Impact Statement (RIS) on the Bill, prepared by the Ministry of Justice, traces the history of Treaty “principles” which became effective after the 1986 State Owned Enterprises Bill which said, “nothing in the Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”
The RIS says: “This is significant because it was the first time an Act restricted actions of the Crown to measures that were consistent with the principles of the Treaty. This provided the courts with a specific basis on which to assess Crown actions against the principles.”
That is the problem; the principles’ defining has been left to the courts.
The RIS says: “Although there is no single set of principles, some of the core principles that have emerged through the courts and Tribunal reports are:
Partnership – under which the Crown and Māori both have a positive duty to act reasonably, honourably, and in good faith towards one another.
Active Protection – which places upon the Crown a positive duty to protect Māori interests and taonga.
Redress – which requires the Crown to redress the wrongs it has perpetrated against its Treaty partner.”
The problem with defining the principles is — as always —- Article Two of the Treaty, which guarantees Maori tino-rangatiratanga over their lands, property and taonga.
Seymour is proposing to cover this in his Bill with the following wording: “The Crown recognises the rights that hapū and iwi 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 agreement with the Crown.”
The RIS argues that “an interpretation of Article Two that does not recognise the collective rights held by iwi and hapū, or the distinct status of Māori as the indigenous people of Aotearoa New Zealand, would, in effect, just restate rights established elsewhere in law.
“This calls into question the very purpose of the Treaty and its status in our constitutional arrangements.”
Seymour yesterday was dismissive of the Regulatory Impact Statement and the Ministry of Justice.
“They believe that ordinary people aren’t actually able to think and reason and decide what they want for their futures,” he said.
“I believe that actually, New Zealanders who must live under these constitutional conditions should be able to have a say about them.
“And I believe that people are allowed to express an opinion.
“And I actually believe that most New Zealanders are good and deserve to participate in their democracy and not to be told that for them to have an opinion is somehow bad, dirty or wrong.”
Seymour’s Bill would further restrict the specific Maori rights claimed under the Treaty by not only limiting access to them to iwi and hapu but also requiring that those rights be confirmed either by seperate legislation or some other Crown agreement.
He argues this would leave little room for the Supreme Court to redefine them.
“My point is the starting point is that the treaty gives the same rights to all,” he said.
“However, of course, governments can make whatever laws they like as time goes on.
“The point is that the Supreme Court or any other court would be confined by this initiative to interpreting laws that the government has explicitly made, not their own version of what the treaty means.”
That is the fundamental sticking point: whether the Treaty grants a unique role to Maori in New Zealand or whether, as Seymour argues, all New Zealanders are equal and there should be no differentiation in rights between them.
The Ministry of Justice’s Regulatory Impact Statement worries that this issue is so fundamental it could lead to a breakdown in social cohesion.
“The proposal, and the debate surrounding the Bill, could generate further division posing a threat to social cohesion,” it said.
And: “Further, putting decision-making on Treaty matters to the wider public through a referendum brings a significant risk that the will of a non-Māori majority will impose on the minority partners (who are also most likely to be affected by the policy).”
Palmer is dismissive of the whole process so far.
“The policy paper is one of the weakest cabinet papers I’ve ever seen,” he told POLITIK.
“It’s shoddy, it’s funny, it’s disingenuous, and it’s going to stir up emotion. It is going to cause a lot of division and polarization in the community for no gain at all. That I can see.
“you have to ask what the purpose of this policy is.
“And if you look at paragraph five of the cabinet paper, IT says the purpose of this policy is to create certainty and clarity in the meaning of the principles in legislation and to promote a natural national conversation about the place of the principles in our constitutional arrangements.
“Well, those are two different issues. But the first thing is it will not create any certainty at all. What it will create is certainty and division.”
The mechanics of how the Bill will proceed over the next eight and a half months are still slightly opaque.
Seymoure expects that it will be introduced on November 18, go to the Select Committee on November 21 and be reported back to the House by May 16.
He then assumes the House would debate the Bill during the rest of May and June.
But it still needs to be determined if the Bill will even come back to the House from the Select Committee.
The Clerk of the House, David Wilson, told POLITIK that the government had a range of options if it did not wish to proceed beyond the first reading (which is what the Prime Minister says).
They are:
The government could move a motion, with notice, to discharge the Bill.
The minister in charge of the Bill could inform the Clerk they wish to discharge it.
The Bill could be placed near the bottom of the Order Paper by the Leader of the House and left there for the duration of the Parliament.
A member could move an amendment to the motion that the Bill be read a second time, instead proposing that it receive its second reading at some later date or following an event like a referendum.
Parties can vote against the Bill at second reading. It would be discharged if the vote was lost.
If no minister moved the second reading when it was called, the Bill would be discharged.
New Zealand First has made it plain that they don’t support the Bill but do support addressing the lack of definition of the Treaty’s principles.
They refer to the fact that 40 pieces of legislation refer to the principles of the Treaty.
“We’re keen to prune those principles references from legislation where it ought not to be there or doesn’t add anything. We’re taking quite a pragmatic approach,” NZ First Minister Shane Jones told journalists yesterday.
NZ First Leader Winston Peters wasn’t keen on answering media questions about the Bill.
Sounding irritated, he simply said: “Look, go and ask Mr Seymour; it’s not my problem.”
Palmer believes that what has been published so far is not the basis for a national conversation on something as fundamental as the country’s founding document.
“This is not the way to promote a national conversation,” he said.
“If you’re going to promote a national conversation, you want properly researched papers published that you can consult on.
“And this doesn’t come under that category.”
That is the challenge for the Government; no matter how much Luxon or Peters may dismiss it as Seymour’s Bill, it is a Government Bill, and all three will eventually have to share political responsibility for it.
In the meantime, we could all be in for a rough ride.
