The Waitangi Tribunal has submitted its over 200- page interim report on the Treaty Principles Bill and the Treaty clause review to Prime Minister Christopher Luxon and Ministers Tama Potaka, Paul Goldsmith and David Seymour.
The tribunal has given the Crown four recommendations on its policies made in the coalition agreements between National and Act, and National and the New Zealand First Party.
- It recommended the abandonment of the Treaty Principles Bill policy.
- It recommended that the Crown constitute a cabinet Māori–Crown relations committee overseeing the Crown’s te Tiriti policies. It didn’t find it appropriate that the social outcomes cabinet Ccommittee consider these matters.
- It recommended the Treaty clause review policy be put on hold while it is re-conceptualised through collaboration and co-design engagement with Māori.
- It also recommended that the Crown consider a process in partnership with Māori to undo the damage to the Māori–Crown relationship and restore confidence in the honour of the Crown. While the issue is wider than the two specific policies before the tribunal in this urgent inquiry, it makes this recommendation based on its findings and the redress necessary to remove the prejudice and prevent similar prejudice in the future.
The report was written after urgent claims were submitted to the tribunal over the coalition government’s potential policies.
“Even though the people who agreed to that sacred covenant are no longer alive, their descendants still honour its words.
“The coming together of different races in this country began with the Treaty and it cannot be suppressed,” Waitangi Tribunal chair Judge Caren Fox wrote in a letter.
Treaty Principles Bill
Fox said the Act Party policy on the Treaty Principles Bill was " a solution to a problem that does not exist”.
“It is ‘novel’ in its Treaty interpretations; it is fashioned upon a disingenuous historical narrative; its policy rationales are unsustainable; and its current text distorts the language of the Treaty / Te Tiriti.
“Logically, that means it has been pursued without any consideration of the Crown’s constitutional and Treaty/te Tiriti obligations to Māori.”
The report also pointed out senior officials gave clear advice to ministers on this, warning them it would damage the Māori–Crown relationship, and risk undermining social cohesion.
“By engaging with this policy, the Crown is sanctioning a process that will take away indigenous rights.”
The tribunal found the Crown’s Treaty Principles Bill to be breaching the duty to act in good faith and to act reasonably.
Treaty Clause Review
The report foundthe Crown’s Treaty Clause Review policy was in breach of the Treaty principles of partnership, active protection, equity, redress, good government, and the article 2 guarantee of rangatiratanga.
It found the policy would reduce te Tiriti protections for Māori, which would affect Māori rights to access justice to have their Treaty rights realised.
According to the Tribunal, the Crown did not engage with Māori on this policy.
What now?
The Waitangi Tribunal concluded both the Crown’s policies were inconsistent with the principles of the Treaty of Waitangi.
It also found a consistent “alarming pattern” of the Crown using parliamentary sovereignty and policy processes against Māori instead of meeting the Crown’s Treaty obligations.
“The combined impacts of the policies are or will be highly prejudicial to Māori,” Fox wrote.
Due to this being an interim report, the tribunal can change its views over the filing of the Cabinet paper and regulatory impact statement, and any further evidence or submissions that might be required in response to those documents.
The tribunal can also review these issues again if the Treaty Principles Bill becomes law or if the Treaty clause review results in changes to the statutes.
ACT’s draft Treaty Principles Bill is planned to be lodged on August 29 for consideration by cabinet on September 2 this year.