Te Pāti Māori's Tākuta Ferris put a new bill in the ballot this week, the Treaty of Waitangi (Empowerment of Waitangi Tribunal) Amendment Bill. The bill does three things: it empowers the Waitangi Tribunal to inquire into legislation before Parliament and requires the government to respond to its findings; it makes its recommendations (on any inquiry) binding on the crown; and it entrenches those provisions so that they require a 75% supermajority (but not a referendum) to amend or repeal. This bill has no hope of passing in the present Parliament, but it is worth discussing.
Looking at the changes in turn: given what has happened so far this year, the ability to inquire into legislation currently before Parliament - essentially to advise Parliament whether it is about to breach its obligations under te Tiriti - is useful. While there is Treaty scrutiny of bills before introduction, it is by the government and for the government, and there is no formal reporting mechanism to advise Parliament of any potential breach. And its worth noting that we already do this for another pillar of our constitution - the Bill of Rights Act - so surely te Tiriti deserves the same consideration. Obviously having the quasi-judicial Waitangi Tribunal do it poses separation of powers issues, but the flaws in the BORA reporting regime, where Attorney-Generals have repeatedly massaged their findings to downplay human rights issues with government legislation, show us exactly why we need outside, independent scrutiny. And the Waitangi Tribunal is the obvious choice: there is simply no other body with the expertise, the independence, or the mana capable of doing it.
(I'd like to see independent, outside scrutiny for the BORA as well, rather than using the inherently-conflicted Attorney-General - but that would be another bill...)
Secondly, making Waitangi Tribunal findings binding on the crown: obviously, this is a major constitutional change, the sort that would normally require a referendum (which poses obvious problems because of racism). We don't do it for the BORA, or other constitutional law; we don't have constitutional supremacy in Aotearoa. But there's a strong argument, backed by the behaviour of politicians, that we should (and a strong argument, backed by the behaviour of Americans, that we should be cautious; OTOH, most countries with supreme constitutions seem to cope OK, so maybe Americans are just... exceptional).
In this case, te Tiriti is the bargain that underlies our country. It is one of the foundations of state legitimacy. It imposes ongoing duties and obligations on the state. As the current pack of shameless arseholes shows, remedies cannot be left to just "the conscience of the crown". If we take ti Tiriti seriously, this is where we need to be going. Whether we get there all at once, or whether we use a shame-based report-and-response mechanism as a half-way house (as we now do for the BORA) is an open question, but the destination should not be in doubt.
The third change - entrenchment - protects the other bits. IMHO it doesn't protect enough - it should protect sections 4 and 5, to ensure that a racist government cannot simply disestablish the Tribunal or gut its functions. Whether this is necessary depends I guess on how racist present and future government are presumed to be; given the current pack of racist arseholes, I'd say it is necessary, and the failure of previous governments to protect the future from their ilk is a significant one.
As I noted above, there is no chance that this bill will pass in the present Parliament. And given the need for a supermajority for entrenchment, the chances of that bit passing in future are very low (the other bits, OTOH...). But it effectively lays down a challenge to Parliament and to Aotearoa about the place of te Tiriti in our constitution, and the mechanisms we use to protect and enforce it. And the question for us in considering these proposed changes is: do we take te Tiriti seriously or not?
