By William McGimpsey

I appreciate the opportunity to comment on the Treaty Principles Bill and applaud the ACT Party and the Government for allowing ordinary Kiwis to have this opportunity.

I agree with Mr Seymour and the ACT Party that in recent decades “The Principles” have expanded in scope beyond what a plain reading of the text of the Treaty says due to the interpretations of Judges, Academics, the Public Service and the Waitangi Tribunal, and that they are now being used as the basis for unpopular policies like co-governance and Māori wards.

I used to work in the public sector as a Policy Analyst, and when I was there it was standard practice for every policy paper to have a section on compliance with the Treaty of Waitangi where the implications of the proposal were assessed for conformity with the Principles. ‘The Principles’ have therefore taken on the status of something like constitutional law, despite there has been no democratic input into this expansion of meaning. It is therefore well past time ordinary New Zealanders got to have a say.

In general, I support the Waitangi Tribunal process of trying to settle Treaty claims and return to Iwi land that was unlawfully taken. In the Treaty, the Crown agreed to let Iwi keep their historic lands, fisheries, etc, and where it hasn’t lived up to its word it is appropriate to try and set things right. However, like many Kiwis, I feel as if the Waitangi Tribunal process is being abused and has become a “gravy train”. What I would like to see is for the claims to be fully and finally settled, but then for the process to come to an end and for us to move on. However, it seems like the more we try and put things right with Māori, the more extreme their demands become, so that rather than getting closer to a full and final settlement we find ourselves getting further and further away. Perhaps this is unfair, but that’s how it seems.

I am sympathetic to claims The Principles make it impossible to get anything done because Iwi/Hapu have to be consulted at length about any possible new development at both a local and central government level. These lengthy and seemingly unnecessary consultation requirements should be eliminated where possible.

Overall it is my belief that rather than passing a Bill to enshrine the meaning of the Principles in law, which will actually strengthen their legislative basis, it is better merely to clarify or delete them from legislation as proposed by New Zealand First. The Treaty is an historic document that contains a degree of ambiguity and is subjected to multiple competing interpretations – attempts to legislatively clarify its meaning are likely to antagonise either one side or the other – perhaps doing more harm than good. So, while I disagree with what the judiciary has done in expanding the meaning of the Principles, I also oppose defining them in law as per the Treaty Principles Bill. We should seek to undo the damage done by progressive legal activism, not make the same mistake in the opposite direction.

When it comes to the definition of the Principles in the Bill, I think in general these are much closer to a reasonable interpretation of what the text of the Treaty actually says than the expanded definition of ‘The Principles’ in use today. However, I still take issue with a few points:

• Principle 1 (a) should be amended to replace “everyone” with “New Zealanders” to reflect the fact that the Treaty explicitly references two groups of people – Māori and British subjects. This would also reflect that the New Zealand Government’s duties are to its own citizens rather than all the peoples of the world.
• I believe a reasonable reading of Article 2 of The Treaty (particularly the Māori version), in addition to granting the Tribes property rights to their existing lands, fisheries, etc, also grants the Chiefs a degree of Tino Rangatiratanga or self-determination – i.e. the ability to continue to govern their own tribes according to their own customary ways. This isn’t currently reflected in the Bill’s Principle 2, and I believe this should be adjusted accordingly.
• I propose two amendments to Principle 3:

1. Firstly, as in Principle 1, references to “everyone” should be replaced with “New Zealanders” to reflect the fact that this is the group of people the Treaty is concerned with and that the New Zealand Government has a duty of care to a particular group of people rather than all the citizens of the world.
2. Secondly, it is important that equality before the law shouldn’t be interpreted so as to make the whole concept of indigenous rights illegal. That would appear to go against what the Treaty was trying to secure for Māori in Article 2. Equality before the law has proven to be an effective governing principle in my view, however there are still times when it is reasonable to make “race-based laws” – some examples of race-based laws that liberal democracies have enacted are – Israel’s law of return, America’s Civil Rights Act, various types of immigration restrictions, racial profiling by police, affirmative action laws, protections for ethnic minorities, indigenous rights laws, etc. Some of these I agree with and some I don’t, but they each should be debated democratically on their merits rather than being subjected to a quasi-constitutional “blanket ban” for ideological reasons.

A final issue is that I am concerned that the Treaty Principles Bill, as currently worded, undermines New Zealand’s historic ethnic identity as a nation of British Settlers and Māori. The Bill and the ACT Party's narrative is that New Zealand is to be a modern multiethnic liberal democracy. This comes across as globalist language that undermines the fact that Māoriand the British founded New Zealand. The multiethnic talking point also feeds into a mass migration narrative where anybody can come and go without care for preserving New Zealand’s heritage/historic populations. I think that race and culture matter and that it is unreasonable and unscientific to pretend that people are merely “individuals” (a contested and highly ideological view) and that their racial and cultural background is of no importance to matters of public policy, culture and society.

Recommendations

1. I recommend that the Treaty Principles Bill not proceed past first reading.

2. If the Bill does proceed, I recommend that:

a. References in the proposed Principles to “everyone” be replaced with references to “New Zealanders”.

b. Principle 2 be amended to grant Iwi and Hapu a degree of Tino Rangatiratanga or self-determination.

c. Principle 3 should be amended to ensure it doesn’t preclude laws from being made on the basis of race.