Treaty Principles Bill: Smokescreen for sweeping economic, environmental and social change?

OPINION AND ANALYSIS: Melanie Nelson (Pākehā)

The coalition government’s Treaty Principles Bill may be one of the most significant pieces of legislation we have ever seen. Much has been said about how it distorts te Tiriti o Waitangi. However, it could also serve as a Trojan horse, installing an extreme libertarian agenda.

Its consequences dwarf those of the Fast-track Approvals Bill, which is merely the tip of the iceberg. We don’t know much about what the intentions are; however, possibly unforeseen serious effects may ensue.

Far from simply clarifying the Treaty principles, the proposed Treaty Principles Bill resembles a Trumpian mash-up. The Treaty and its principles may provide access to our constitutional foundations and to multiple existing laws – without needing to amend or repeal those laws – with potential sweeping economic, environmental, indigenous and social repercussions.

The Treaty is a red herring and a target

The wording of the proposed new “Treaty principles” redefines the articles and principles of the Treaty as something they are not – a regime centred on libertarian ideals of largely unhindered private property rights, individual sovereignty and self-reliance, enforced by government authority.

The Bill could legally and perhaps constitutionally embed a regime that gives significant weight to safeguarding those ideals – with minimal interference, regulation or affirmative action from government – at the expense of other societal or environmental values.

The illusion of this only affecting the Treaty is a red herring, distracting us from the potential consequences across the legal and political landscape – far beyond the already-serious impacts on the Treaty, indigenous rights and the Māori voice.

Far-reaching impact on existing laws

Enacting in law a new set of “Treaty principles” would automatically change the interpretative lens of multiple laws wherever the phrase the “principles of the Treaty of Waitangi” is used, such as in the Resource Management Act 1991, the Conservation Act 1987, the Hauraki Gulf Marine Park Act 2000 and the Crown Minerals Act 1991.

The result would be a legally enforceable obligation on all persons exercising functions and powers under those laws to give weight to these new “Treaty principles”, rather than the relationship with Māori – a radical departure from the existing norms, affecting their policies, processes, decision-making and activities.

A defining constitutional action?

Te Tiriti is part of our unwritten constitution; its text has never been formally passed into law. Although the Bill is said to focus on the Treaty principles, it could access the constitutional force of te Tiriti itself.

The structure of te Tiriti is roughly reflected in the proposal – the suggested Treaty principles are headed “The Treaty Articles” and labelled and numbered accordingly.

Given the surface equivalence between these principles and the articles, the Bill can be seen to endeavour to enforce a different meaning on the original text.

We must consider whether Parliament legislating “definitions” of the Treaty articles for the first time in enforceable law could constitutionalise this regime and simultaneously negate the existing role of te Tiriti and its principles.

Principles recast to be something they are not

Most of our current Treaty principles – which include partnership, good faith, autonomy, governance, reciprocity, active protection, informed decision-making, mutual benefit, equity, options, development and redress – are notably absent in the proposal.

The suggested “Treaty principles” have no true origins in te Tiriti or the Treaty. They make no mention of Māori, with whom the agreement was made.

Minimal part-phrases are cherry-picked from the Māori text of te Tiriti, decontextualised linguistically, historically and culturally, and recast with new meanings. (This is detailed in an Explainer published in E-Tangata:

The resulting ‘Treaty principles’ crumple under scrutiny:

Article 1: kawanatanga katoa o o ratou whenua

The New Zealand Government has the right to govern all New Zealanders”

This entrenches Government authority to enforce the ideals expressed in the other two principles. It elevates the Crown’s power, which is inconsistent with the guarantee of tino rangatiratanga in te Tiriti.

Article 2: ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou whenua o ratou kainga me o ratou taonga katoa
The New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property”

This erases tino rangatiratanga and introduces the concept of all New Zealanders, and the libertarian ideals of individual sovereignty and largely unhindered private property rights. Article 2 of te Tiriti is not about these things; it guarantees the tino rangatiratanga of Māori.

Article 3: a ratou nga tikanga katoa rite tahi

All New Zealanders are equal under the law with the same rights and duties”

This is a shift from equity to individual self-reliance, and from Māori to all. Article 3 of te Tiriti is not about the equal individual rights and duties of all New Zealanders; it gives Māori the rights of British citizens, additional to the above preservation of pre-existing Māori rights.

Tricky, not Treaty

This “recasting” of what is said in te Tiriti could lead to political preferences becoming embedded in an inaccurate interpretation of the Treaty, bypassing its legal, linguistic and historical realities.

Although Parliament has the power to legislate, for example, that all dogs are cats, that does not make it true that dogs are cats. Likewise, Parliament could legislate that the Treaty principles are now based on a regime of government authority, private property rights, individual sovereignty and self-reliance, in place of the relationship with Māori. It would be inherently problematic to have such fiction enshrined as legal fact in our laws.

Additionally, future governments could amend the law with their own preferred values, putting the Treaty on a perpetual political roundabout – causing instability legally and possibly constitutionally, as well as in the partnership with Māori.

Given the constitutional standing of this Bill, it could even be expected that the government might consider entrenching the Act, making it harder for future governments to amend or reverse it.

National sweeping changes, from just one Act

The potential consequences could be extraordinary. The RMA and Conservation Act would require persons acting under them to respectively “have regard” or “give effect” to the remodelled “Treaty principles” of largely unhindered property rights, individual sovereignty and self-reliance, all enforced by government authority.

This would strongly influence the interpretation of these laws and all the Acts listed on Schedule 1 of the Conservation Act. It could open the door to even further expansion of mining on the conservation estate, seabed mining, increased pollution of waterways and intensified climate change.

There could be constitutional or legal implications for health, education, welfare, social housing, vulnerable people and marginalised communities. The jurisdiction of the Waitangi Tribunal would also be changed, as it is defined by the principles of the Treaty of Waitangi.

This Bill would usher in a new era where all understandings are up for negotiation – opening up great legal unknowns and drastically reducing Māori rights. Expensive litigation on the meanings of words and phrases that have long been settled could give rise to substantial uncertainty.

The suggested “Treaty principles” are antithetical to the text and spirit of te Tiriti o Waitangi. Outcomes are hard to predict or fathom, as the proposal is such a distortion of what has gone before.

We all need to act for our Treaty and this land we share.