Anne Salmond: What’s the matter with the Treaty Principles Bill

Comment: A mature, thoughtful conversation about Te Tiriti o Waitangi would be timely, but the Act party should not lead it. At the last election, it was the only party to propose a referendum on this subject, and 91.6 percent of the electorate did not support them. It had no democratic mandate to enact its ideas about the Treaty.
In the coalition negotiations that followed the election, both Act and NZ First (with only 6 percent of the vote) gained support for specific policies – from gun laws, far right economic policies, a Fast-track bill and smoking laws to a referendum on Te Tiriti – that won very little support from voters. In some cases, these policies weren’t even put to the electorate. This makes a mockery of the democratic process.
As the party that won the majority of votes in 2023, National must take responsibility for this breach of democratic norms.  To gain power, its leaders were willing to trade away positions on matters of national importance supported by centrist majorities in favour of policies and initiatives supported by fringe minorities. 
As Sir Geoffrey Palmer has noted, “New Zealand is in danger of lurching towards constitutional impropriety. The Luxon government is driving a number of controversial issues rapidly through Parliament. Some of these policies are unfit for purpose, legally suspect, contrary to the public interest and inappropriate.”
The previous Labour government must take some of the blame for this state of affairs. Emboldened by an absolute majority, it also tried to enact controversial policies on Te Tiriti and other matters that lacked a democratic mandate.
At the same time, by rushing through a raft of ill-considered legislation under urgency, and trying to avoid proper scrutiny as they enact their backdoor deals, the National-led coalition Government is putting New Zealand’s democracy at risk.
In his article, Sir Geoffrey examined Act’s proposal for a referendum on the Treaty as a case in point. Again, his comments are apposite:
“New Zealand is likely to be internationally embarrassed if these policies prevail.  The Act policy on this matter is polarising and dangerous to civil order. Sir John Key was right to speak out against it.
The Treaty is binding on the New Zealand Government. It is binding because New Zealand is the successor to the obligations of the UK government which negotiated the Treaty, since we are now independent. And it is also binding on us because it is a valid treaty at international law.”
In its draft Treaty Principles bill, Act has made an attempt to rewrite a document that was written, debated and signed in te reo, to mirror their own libertarian ideologies. Much of their rhetoric, and that of their funders, has been inflammatory and divisive – a classic case of ‘pernicious polarisation.’
Libertarianism, which elevates individual liberty and private rights over notions of collective responsibility, is historically and culturally specific. It traces back to strands in Greek philosophy and Christianity as well as philosophers like John Locke and John Stuart Mill. Its support among the New Zealand electorate is slight, as indicated by Act’s 8.4 percent share of the vote.
Libertarianism is also radically at odds with the framings of Te Tiriti o Waitangi. In 1840, te reo was the dominant language of the land, and relational thinking the dominant philosophy. In keeping with this kind of logic, Te Tiriti o Waitangi is framed as a chiefly gift exchange between the rangatira of the various hapū, and Victoria, the Queen of England.
In Ture / Article 1 of Te Tiriti, the rangatira give all the ‘kawanatanga’ (governance) of their lands, absolutely and forever, to the Queen of England. In Ture / Article 2, Queen Victoria agrees with the rangatira and the hapū to uphold the tino rangatiratanga of their lands, dwelling places and all their treasures.
In Ture / Article 3, in exchange for the gift of kāwanatanga, the Queen promises to protect the indigenous inhabitants of New Zealand, and gives to them ‘nga tikanga rite tahi’ (tikanga absolutely equal) with her subjects, the inhabitants of England.
Act’s attempt to rewrite Te Tiriti as a statement about individual liberty and property rights is presumptuous, since they clearly can’t read the original. Through partial and misleading translations, they seek to erase the ‘tino rangatiratanga’ (the term that Henry Williams used as a translation equivalent for ‘independence’ in He Whakapūtanga, Declaration of Independence in 1835) of hapū, although this is unequivocally acknowledged by Queen Victoria in Ture 2.
As a group of licensed translators of te reo has noted, Act’s proposed Treaty principles are based on “additions, omissions and distortions of the original text,” and are unethical and inaccurate. Basing a referendum on this kind of misrepresentation would be an offence against the democratic process in New Zealand, and a betrayal of our best values.
Like tikanga māori, Western political philosophy is not purely about individual rights. It also includes many strands of relational thinking – about collective rights and responsibilities, and democracy ‘of the people, by the people, for the people,’ for example. The same is true of the law, which is fundamentally about relationships among groups as well as individuals, and how these should be conducted.
Values including honour, truth and justice resonate closely with ideas such as mana, pono and tika. The ‘scales of justice’ remind one of the balanced, reciprocal exchanges in debates on the marae. This is the way in which discussions of the contemporary significance of Te Tiriti ought to be conducted.
It is not surprising that in the course of our shared history, there have been many legal defenders of the Treaty of Waitangi – from Sir William Martin, New Zealand’s first Chief Justice, to Sir Apirana Ngata, Lord Cooke of Thorndon, Dame Sian Elias, Sir Geoffrey Palmer and Sir Joe Williams, for example.
At the outbreak of the Land Wars in the 1860s, Sir William Martin initiated this legacy when he railed against the colonial government for its breaches of faith against the hapū in Taranaki:
“We have covenanted with these people, and assured to them the full privileges of subjects of the Crown. To this undertaking the faith of the nation is pledged. By these means we secured a peaceful entrance for the Queen’s authority into the country. The compact is binding irrevocably. We cannot repudiate it so long as we retain the benefit which we obtained by it.’
By allowing Act to introduce a Treaty Principles bill to Parliament, although their proposal for a referendum on the Treaty failed to win support from the electorate, the Prime Minister and his advisors abdicated their responsibility to uphold the ‘faith of the nation,’ and they must put that right. 
The Prime Minister cannot hide behind Act’s skirts on this matter. Trying to pretend that the coalition agreement is a ‘binding covenant’ that trumps the Treaty is constitutional folly. National must acknowledge that it made a fundamental mistake  by agreeing to send Act’s so-called ‘principles’ to a select committee.
At the same time, Act must recognise that with 8.4 percent of the vote, it had no right to make that demand. For a party so devoted to democracy, the fact that 91.6 percent of the electorate failed to support its proposal for a referendum on the Treaty should have been the end of the matter.
After lurching from one Treaty policy that lacked a democratic mandate to another under successive governments, New Zealand needs a thoughtful, well informed and inclusive discussion of the contemporary significance of Te Tiriti o Waitangi. That is not where we are heading at present. 
As the majority party, National must uphold the honour of the Crown, talk with the Governor-General (as the King’s representative) and the rangatira of the hapū, and find a peaceful, constitutionally responsible way to carry out this debate. That would give it the mana and gravitas it deserves.