PETER WILLIAMS: Waitangi Tribunal Report Predictable

Seymour's courageous but who will support him?

That the Waitangi Tribunal was highly critical of the Act party’s proposed, although currently undrafted, Treaty Principles Bill was as predictable as the sun rising in the east.

The timing is not surprising either. The Tribunal has become an extraordinarily political body, one that in this instance has deliberately set out to fire many shots across the bow not just of Act, but of the entire governing Coalition before the Bill is presented to parliament in November.

At nearly 200 pages long, this is a thorough report with conclusions reached after evidence was presented over two days in May.

But it’s based on the premise from the bombshell 2014 Tribunal report which told us that, contrary to what we’d all believed since 1840, the Chiefs who signed at Waitangi on February 6th that year did NOT cede sovereignty to the Crown.

The underlying issue reported here is the very one that David Seymour and his party are trying to overcome. That is, according to advice from no less than the Ministry of Justice, iwi/Maori as tangata whenua have “a unique constitutional status with specific rights under the Treaty/te Tiriti.”

That so-called “unique constitutional status” has never been conferred by Parliament nor voted on by the electorate. Rather, it has been stated so often by judges and academics and the Waitangi Tribunal itself that it has become ingrained thinking in the minds of public servants, and the media.

Just like the concept of the Treaty being a “partnership” this “unique constitutional status” has become a factoid – a false claim repeated so often that it becomes accepted as fact or common knowledge.

As Seymour himself has said on numerous occasions “no society in history has succeeded by having differing political rights based on birth.”

Can anybody deny that reality?

His Treaty Principles Bill is therefore an attempt to successfully define in the 21st century, in a multi-cultural and ethnically-blended modern New Zealand, just what is meant by that seemingly innocent phrase, “the principles of the Treaty of Waitangi.” It was first inserted into a piece of legislation in 1975 and over the last half century has turned out to be political dynamite.

As has been reported regularly this year, Seymour’s bill has three underlying principles:

(1) the New Zealand government has the right to govern all New Zealanders

(2) that the government will honour all New Zealanders in the chieftainship of their land and all their property

(3) all New Zealanders are equal under the law with the same rights and duties.

They are concepts quite brilliant in their simplicity. Who could possibly disagree with any of them?

Well, the Waitangi Tribunal has no difficulty whatsoever!

The problem with the first principle is, according to the Tribunal’s evidence from lawyer Natalie Coates, “the Rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain. They retained their authority to make and enforce law over their people or their territories and agreed to share power and authority.”

This is repeating what the Tribunal has been saying for ten years. Notwithstanding that it flies in the face of evidence from speeches by various chiefs in 1840, by public comments made at the Kohimarama Conference of 1860 and by Sir Apirana Ngata at the Centenary of the Treaty in 1940, it has now become an accepted narrative among the judiciary, academics, the media and the public service – another factoid if you like.

Thus the Tribunal says the New Zealand Government does not have the right to govern all New Zealanders. Ms Coates says that Seymour’s first principle takes an agreement about “power sharing and turns it into an affirmation of the Crown as a largely unfettered sovereign.”

Frankly, that is arrant nonsense.

There was never any intention by the Crown in 1840 to “share power” with anyone. The Tribunal’s own famous Sir Hugh Kawharu back-translation of the te reo version of the Treaty in 1989 says expressly “the chiefs give to the Queen of England for ever the complete government over their land.” That translation remains published on the Tribunal’s website today.

The Tribunal and the Ministry of Justice both have serious issues with Seymour’s second principle about “all New Zealanders” having chieftainship over their land and property.

The MOJ went so far as to say this was a “novel interpretation of Article Two” of the Treaty and that “they did not think it has ever been the policy of the Crown that Article Two applied to anyone other than Maori.”

Yet the Maori version of the Treaty that was signed reads “ki nga tangata katoa o Nu Tirani..” which means in any translation, “all the people of New Zealand..”

Modern day historians claim that in 1840 “all the people in New Zealand” did not actually mean “all the people” at all, but rather only Maori. It’s a significant issue and is yet another example of a Treaty which was not that well drafted or translated or back-translated or copied at the time. The slack administration around this document was shoddy to say the least and has caused no end of issues for nearly two hundred years!

But the point is Seymour is not rewriting the Treaty of Waitangi. He is trying to establish principles based on the Treaty to put into modern law in 21st century New Zealand.

As millions of New Zealanders of all ethnic backgrounds now own land and property, the Act leader just wants the government to guarantee that those New Zealanders can continue to own and control their land and property without undue outside influence, and under the law of the land. Is that an unfair principle to uphold in a liberal democracy?

The third proposed principle would seem an absolute no brainer. Who will challenge the idea that we as New Zealanders are all equal under the law with the same rights and duties? But remarkably the Tribunal writes that “equal citizenship promised in Article 3 has not yet been fulfilled."

You what?

Is there any person with New Zealand citizenship or residence who is denied the rights of others?

But then we read what the Tribunal’s problem is. You see “formal equality does not and has not ensured equitable outcomes.”

Here’s a revelation. The world does not provide equitable outcomes. A country like New Zealand with its democratic government provides equality of opportunity. Equitable outcomes can never be guaranteed.

Seymour’s bill is a bold attempt to move the race relations conversation forward. It has hit a serious roadblock with the intransigence of the National Party to show some courage and actually take part in the conversation.

Christopher Luxon’s promise that his party won’t be voting for the bill at the second reading is another sign of a party that cannot face up to its obligations of leadership. It is cowed into submission by the loud voices of the Waitangi Tribunal and its fellow travellers.

Seymour should be congratulated for trying to move on a matter that after fifty years of trying is no closer to being resolved than it was in 1975. Despite a Maori led economy based on the proceeds of large Treaty Settlements now worth billions, it’s blatantly obvious that nothing will satisfy aggressive Maori leadership short of a complete takeover.

That cannot happen and what Seymour is trying to do is bring some sanity and balance back to the discussion.

More’s the pity so few will engage sensibly with him.

Writer and broadcaster for half a century. Now watching from the sidelines. Subscribe to Peter William's Substack here