Below is the first draft of my submission on Doug Woolerton's Principles of the Treaty of Waitangi Deletion Bill. It is based primarily on arguments here, here, and here. Submissions close tomorrow, and I will be emailing it to the Committee, but any comments would be appreciated.
- I oppose the Principles of the Treaty of Waitangi Deletion Bill for the following reasons:
A: The Bill would “kill the Treaty”
- It is a well established principle of common law that treaties are not justicable in the courts. This principle has been incorporated into New Zealand law and applied to the Treaty of Waitangi (see for example Hoani Te Heuheu Tukino v Aotea District Maori Land Board  AC 308 (PC)). Any legal force the Treaty of Waitangi has depends on the extent of its adoption in statute.
- The “standard” Treaty clause, such as that in the State-Owned Enterprises Act 1986, declares that
Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.
- Other clauses, such as that in the Crown Minerals Act 1991 or Resource Management Act 1991, require those exercising powers and functions under the Act to “have regard to” or “take into account” the principles of the Treaty of Waitangi.
- More recent clauses such as those in the Local Government Act 2002 or Land Transport Management Act 2003 are narrower, and spell out specific sections of the law enacted so as to fulfil the Crown’s obligation under the Treaty.
- All of these clauses exist for a single reason: to give the Treaty legal force. This allows Maori to use the courts to contest government action which is believed to be inconsistent with its obligations under the Treaty (as occurred in NZ Maori Council v Attorney-General  1 NZLR 641). In doing so, they both remind the Crown of its ongoing obligations under the Treaty, and help to prevent future Treaty breaches. I regard this as a desirable state of affairs.
- By contrast, repealing the clauses wholesale would return the Treaty to being (in the words of Justice Prendergast) “a simple nullity”. This is undesirable. The committee should need no reminding that relying on “the conscience of the Crown” has proven manifestly inadequate in the past, and allowed Maori to be systematically dispossessed and robbed of their lands, forests, fisheries and taonga, and pushed to the margins of New Zealand society.
- As a side note, it is often claimed that the “principles of the Treaty of Waitangi” referred to in these clauses are vague and undefined. This is untrue. They have been defined by the Waitangi Tribunal [PDF], the Ministry of Justice, and the Courts. Te Puni Kokiri has an excellent summary [PDF] available on its website . This is not a problem of “vagueness”; it is a problem of ignorance on behalf of those too lazy to actually look.
B. The Bill will affect existing Treaty settlements
- The list of Treaty clauses the Bill attempts to repeal includes clauses from six settlement bills. These clauses are very different from those referred to above.
- For example, the bill would repeal section 5.1. of the Ngati Turangitukua Claims Settlement Act 1999. This states:
The Crown acknowledges that, in relation to the construction of the Turangi township, it failed to act towards Ngati Turangitukua in a manner consistent with the principles of the Treaty of Waitangi. The relationship between the Treaty partners obliges the Crown actively to protect Maori interests and the Crown apologises that it did not actively protect the interests of the hapu.
- The bill would also repeal sections 6(1), (2)(e), and (4)(c) and section 7 of the Ngati Tama Claims Settlement Act 2003. These state that
(1) The Crown acknowledges that the wars in Taranaki constituted an injustice and were in breach of the Treaty of Waitangi and the principles of the Treaty of Waitangi.
(2) (e) the confiscations were wrongful and in breach of the Treaty of Waitangi and the principles of the Treaty of Waitangi.
(4) (c) that its treatment of the Ngati Tama people at Parihaka was unconscionable and unjust and that these actions constituted a breach of the Treaty of Waitangi and the principles of the Treaty of Waitangi.
- These clauses are typical, and are acknowledgements of past wrongdoing by the Crown which underlies these settlements. It is completely inappropriate that they be repealed, and their repeal could be seen as a repudiation of those settlements.
C. The Bill would interfere with the work of the Waitangi Tribunal
- The bill would also repeal sections 6(1)(d), section 8(1), and section 8HB of the Treaty of Waitangi Act 1975.
- As with the clauses in settlement Acts above, these are not traditional “Treaty clauses”. Instead, they confer powers upon the Waitangi Tribunal to investigate breaches of the Treaty and recommend action. Section 6(1)(d)1 allows claims to be lodged on the basis of
any act done or omitted at any time on or after the 6th day of February 1840, or proposed to be done or omitted, by or on behalf of the Crown
- Section 8(1) empowers the Tribunal to consider legislation referred to it by the Attorney-General and determine whether it is “contrary to the principles of the Treaty of Waitangi”. To my knowledge the clause has never been used, but it is in principle no different from the power of the Attorney-General to advise on the consistency of proposed legislation with the New Zealand Bill of Rights Act 1990.
- Section 8HB empowers the Tribunal to recommend the return of Crown forestry land which is subject to a well-founded Treaty claim. Repealing it may affect the ability of some claimants with well-founded claims to be effectively compensated.
- These clauses are vital for the Tribunal to perform its functions, and their repeal would be a mistake.
D. The bill takes a hatchet to legislation
- As a final note, the bill effectively takes a hatchet to legislation. It is as if someone has run a crude search function through the statute book searching for the phrase “principles of the treaty of Waitangi”, and where the “objectionable” phrase is found, deleted the entire clause that contains it irrespective of function or context and without regard to the impact elsewhere in the law. This is clearest in the cases of the settlement Acts (where clauses containing exactly the same reference in Maori are left untouched) and the Treaty of Waitangi Act 1975 (where one of the clauses seems to have been identified in error). This is no way to make law.
- I do not wish to make an oral submission to the Select Committee.
1. This clause actually seems to have been identified in error, as the reference to the principles of the Treaty of Waitangi occurs in an encapsulating clause in s6(1). Repealing that clause would effectively strip the Waitangi Tribunal of any jurisdiction.