New government plans to review Treaty of Waitangi principles

2:34 pm on 24 November 2023
Deputy Prime Minister Winston Peters, Prime Minister Christopher Luxon and ACT leader David Seymour on 24 November, 2023.

Photo: RNZ / Samuel Rillstone

The principles of the Treaty of Waitangi will come under review by the new government.

The coalition agreement between the National Party, ACT and New Zealand First includes a pledge to introduce a Treaty Principles Bill.

During the election campaign, ACT leader David Seymour vowed his party would end co-governance and 'division by race'.

He proposed holding a referendum on the Treaty of Waitangi's principles.

"This country deserves a say on what the Treaty means. It's everybody's country and everybody should have a say in how its constitutional arrangements evolve and develop," Seymour said.

New Zealand First leader Winston Peters has also promised to end policies based on race.

Deputy Prime Minister Winston Peters on on 24 November, 2023.

New Zealand First leader Winston Peters. Photo: RNZ / Samuel Rillstone

During the election campaign, New Zealand First outlined plans to remove Māori names of government departments, for New Zealand to withdraw from the United Nations Declaration on the Rights of Indigenous People, and to introduce a bill making English an "official" language of New Zealand.

"Our very democracy is at risk from a rising tide of racism and separatism that has given birth to secret social engineering that you were never warned about and most certainly never agreed to," Peters said before the election.

The new government coalition has not necessarily agreed to ACT's idea of a referendum, but has agreed to introduce a Treaty Principles Bill.

ACT campaigned for a Treaty Principles Act, which would override the Treaty of Waitangi and change its implications for interpreting laws in courts. It would also reshape New Zealand's constitution.

ACT would define the principles of the Treaty as:

1. All citizens of New Zealand have the same political rights and duties

2. All political authority comes from the people by democratic means

3. New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal

The public would vote for or against the new Treaty principles becoming law.

ACT leader David Seymour leaving National Party leader Christopher Luxon's house on 21 November, 2023.

ACT leader David Seymour. Photo: RNZ / Marika Khabazi

"We have a right to debate whether our future lies with co-government and different rights based on ancestry, or whether we want to be a modern, multi-ethnic liberal democracy where every New Zealander has the same rights," Seymour said

ACT had a problem with the way the courts and government were interpreting the Treaty, he said.

"By enshrining the Treaty's principles, properly understood, in our constitutional settings, ACT would promote the Treaty as it was actually signed, not the divisive version invented by judges and academics," Seymour said.

Seymour and Peters will each have a turn as Deputy Prime Minister, and Peters will be Foreign Minister, while Seymour will hold the new role of Minister of Regulation in the new government.

However, National's Paul Goldsmith will be Minister of Treaty of Waitangi Negotiations, Luxon noted.

"He's going to make sure we do the work with the remaining Treaty settlements that need to be closed out - it's hard work," Luxon said.

Te Tiriti o Waitangi

Te Tiriti o Waitangi as signed in 1840. Photo: supplied

Earlier this month, Luxon said a referendum on the Treaty would be "divisive and unhelpful", but he has not ruled out the possibility.

During today's press conference announcing coalition plans, Luxon said they would work for "all New Zealanders".

"You expect us to deliver better public services that are delivered on the basis of people's needs, not ethnicity.

"We're making sure that we're strengthening democracy. We're making sure that we're making this a more united country," Luxon said.

Māori community leaders and politicians have warned of the possibility of civil disobedience over moves to change the Treaty.

Earlier this month, former Labour MP Willie Jackson said Māori had told him they would "go to war" over ACT's proposal for a referendum on the Treaty.

"Be very clear, I don't want any disruption or violence. I'm not advocating for that at all. But I do understand our people's frustration and anger if this was to go ahead ... I'm saying to you what Māori have been saying to me ... they're saying 'This is not going to happen, we will do anything that has to be done to stop that referendum'.

"I'm just giving a warning: I work amongst our people ... who will go to war for this, war against [ACT leader David] Seymour and his mates," Jackson said.

This week, the Human Rights Commission released results of a poll it commissioned that found 70 percent of New Zealanders wanted decisions about Te Tiriti o Waitangi to be made equally by Māori and non-Māori.

The Horizon Poll found a majority believed Te Tiriti applied to everyone in Aotearoa.

There were diverging views on co-governance, with 49 percent saying Māori should manage issues and be involved in making decisions that affected minorities.

Chief Human Rights Commissioner Paul Hunt said on publication of the report, "while the government of the day could propose something like a referendum on how Te Tiriti is applied, such a move needs to be with the agreement of its treaty partner, Māori.

"People generally want decisions around Te Tiriti to proceed with care, and that can happen when government treats its treaty partner as an equal.

"People need to understand that Te Tiriti benefits everyone in Aotearoa."

Currently the Treaty of Waitangi has two texts, one in Māori and one in English, which is not an exact translation of the Māori. There are major differences in the meaning of each version.

In law, those differences are addressed by referring to the 'principles' of the Treaty, or the core concepts of both texts.

ACT's plan would re-define those principles with its own suggested meanings.

Carwyn Jones: "There has been real anger at the government in terms of its stepping back from its obligations under Te Tiriti."

Dr Carwyn Jones says changing the Treaty's principles would not benefit anyone. Photo: Chevron Hassett/The Wireless

Honorary associate Professor of Māori studies at Te Herenga Waka, Dr Carwyn Jones, said ACT's plans to change the Treaty's principles would unsettle the law.

"There are lots of pieces of legislation which refer to the principles. And we've got lots of court cases and Waitangi Tribunal Reports which have elaborated on what those principles are, and how they ought to apply," Jones said.

"That would all be upset if there was a new definition of what the principles would be... it would create a whole lot of uncertainty.

"It would create a whole lot of work for lawyers, and not much benefit for anyone."

The principles were used as a framework for how Māori and the Crown related to each other, Jones said.

Redefining the principles might mean local councils and the government did not have to consult with iwi and hapu Māori over issues directly affecting them.

A referendum might not be the best way to decide on such significant matters, he said..

"We're talking about human rights and those are not questions which are generally determined by whether the majority agree that human rights should be upheld," Jones said.

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