Principles of the Treaty of Waitangi Deletion Bill

PITA PARAONE (NZ First) Link to this

I move, That the Principles of the Treaty of Waitangi Deletion Bill be now read a second time. Tēnā koe, Madam Assistant Speaker. Let me begin today by acknowledging the good work that many on the Justice and Electoral Committee did, in spite of my being the only one on the committee who actually supported the bill. But I want to thank them for allowing the process of this bill to take place in the way that it did. I mention this, having known that in the time I had, my caucus colleagues and I would possibly be the only members of this House to be supportive of this bill. In this regard, I acknowledge the support given by the Labour Government in keeping to the undertaking it gave in the confidence and supply agreement between the Government and New Zealand First.

We know that the passage of the first reading of this bill caused some angst among Labour’s Maori MPs, but it should not have. Let me make particular mention of the member Chris Finlayson from National, who made an effort to understand the intent and purpose of the bill, and who actually provided some useful ideas on how it could be improved, particularly in relation to the issue of Treaty settlements. I say “Tēnā koe, Chris.”

But, you see, one particular party in this Parliament, aided by its fellow travellers in another, has been peddling a litany of untruths in relation to this bill. This political party has let its veil slip, revealing the intent of its separatist agenda, and has chosen to use deceit and untruths, rather than confront this issue in an honest way.

CHRISTOPHER FINLAYSON (National) Link to this

National supported the Principles of the Treaty of Waitangi Deletion Bill to go to the select committee at its first reading, because we thought that there was an issue of principle that needed to be looked at. But having considered the evidence, heard the submissions, and looked pretty closely at the bill, the National Party has concluded that the bill is poorly drafted and that no real effort has been made by New Zealand First to repair the obvious mistakes. So we cannot and will not support the second reading of the bill.

In my speech I want to deal with three issues. First, I will address the point raised by Mr Paraone about exactly what these principles of the Treaty are. He asks a fair question, he deserves an answer, and he will get one. Secondly, I will analyse the bill, and, thirdly, I will look at the New Zealand First response, some of which was dealt with by Mr Paraone in the speech he has just given.

There has been a lot of talk over the years about vague references to these principles of the Treaty. Indeed, when the Law Commission made a submission to the Health Committee on the New Zealand Public Health and Disability Bill in about 2000, it urged Parliament to provide courts, as far as possible, with guidance as to its precise intention when referring to the principles of the Treaty of Waitangi. It is fair to say, in fairness to Mr Paraone, that in some legislation one cannot discern exactly what Parliament intended when it referred to the principles. But in most of the legislation we deal with I think it is tolerably clear, and in answer to the specific question raised by Mr Paraone about exactly what the principles mean, I can go no further than to repeat what Lord Woolf said in the Privy Council, when delivering the advice of that body in New Zealand Maori Council v Attorney-General in 1994. He stated that both the Treaty of Waitangi Act 1975 and the State-Owned Enterprises Act 1986 referred to the “principles” of the Treaty, and “In their Lordships’ opinion the ‘principles’ are the underlying mutual obligations and responsibilities which the Treaty places on the parties. They reflect the intent of the Treaty as a whole and include, but are not confined to, the express terms of the Treaty. (Bearing in mind the period of time which has elapsed since the date of the Treaty and the very different circumstances to which it now applies, it is not surprising that the Acts do not refer to the terms of the Treaty). With the passage of time, the ‘principles’ which underlie the Treaty have become much more important than its precise terms.” In my first reading speech I referred to the work that had been done by the Law Commission, which, in various cases over the years, has given people a pretty good understanding in most cases about what exactly the principles of the Treaty are all about. So I think the question that Mr Paraone has raised generally lacks merit.

In looking now at the bill, which is the second thing I will do, I say that it comprises four classes of statutes—general legislation, private Acts, settlement legislation, and a couple of important Treaty statutes. There are references in general legislation, and by and large I think they could benefit with some redefinition. A good example of legislation that sets out the Treaty obligations very well is the Public Records Act of 2005, which, interestingly, was not referred to by Mr Paraone in his legislation. Section 7 of that Act sets out the fundamental principle that in order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi, certain sections will provide x, y, and z. I think that that is a very good way of drafting, and I think that the Minister in charge of that legislation, Marian Hobbs, did a good job there, because that is an example of a good definition of exactly what the principles are supposed to be. Some of the general legislation could benefit from a tidying up, but doing it in omnibus legislation is not the way to do it; it requires focus on the particular legislation and the particular aims of the legislation.

The second category is private Acts; for example, the Royal New Zealand Foundation of the Blind Act or the Royal Society of New Zealand Act. These private Acts contain Treaty clauses, and they were passed, as we all know, for the benefit of particular individuals or legal persons. It seems to me to be inappropriate, where bodies like the Royal Society of New Zealand or the Foundation of the Blind have come to Parliament and asked for legislation that has a Treaty clause in it to be passed, that we should unilaterally remove that clause without at least consulting those individuals.

The third category of legislation is settlement legislation. This category comprises statutes where there is no need for amendment, as in many instances they contain acknowledgments of breaches of the Treaty by the Crown. I refer, for example, to the Ngati Tama Claims Settlement Act of 2003 and the Ngāi Tahu Claims Settlement Act of 1998. I cannot see that there is any justification for removing references to the Treaty or the principles of the Treaty from that legislation.

A couple of important Treaty statutes require close consideration. The first is the Treaty of Waitangi Act 1975, from which Mr Paraone seeks to delete any reference to the principles of the Treaty. But such an amendment would remove the very jurisdiction of the tribunal, which was established to investigate breaches of the Treaty. How can one responsibly remove that provision from the 1975 Act?

Hon Dr MICHAEL CULLEN (Minister in charge of Treaty of Waitangi Negotiations) Link to this

It is my pleasure to speak today on the second reading of the Principles of the Treaty of Waitangi Deletion Bill in my first speech as the Minister in charge of Treaty of Waitangi Negotiations. I might say that I find myself in a dangerous level of agreement with Mr Finlayson on this particular matter. I trust we will not hear speeches about the two tired old parties ganging up on this particular matter as I suspect there are a number of “untired” younger parties who will also be opposing the passage of this particular legislation.

I agree with Mr Finlayson that there are some statutory references, particularly in some of the older statutes, which could do with more particular contextual reference to make it clear what the principles are in that particular case. It is interesting that the case he cited of the archives legislation is a much more recent piece of legislation since the Government adopted the approach of giving a more detailed contextual reference rather than simply a vague reference to the principles of the Treaty of Waitangi. I think we will need to continue, as legislation comes up for renewal and review, to work through some of those clauses to make sure that that reference continues to be updated and modernised.

This bill—the Principles of the Treaty of Waitangi Deletion Bill—is an overly simple attempt to resolve a complex issue that faces us as a nation. Quite obviously it is how we achieve a sound and enduring basis for the relationship between Māori as New Zealand’s first peoples and those of us in this country who arrived later. I find it very strange for Mr Paraone to say that any reference to the Treaty or the principles of the Treaty is by itself race-based legislation. It is a kind of cheap, logical trick—if I may be permitted to say so—in the middle of that. Obviously one partner in the relationship is Māori and that therefore, if you like, is race. But then to move from that to argue that the legislation is race-based seems to me to make a giant leap that has got a little bit of logic but not much else to justify that kind of statement.

The Crown actually represents the whole of New Zealand, which by definition is a very broad collection of different peoples and races, including Māori. In other words, in the relationship, say, between the Crown and Ngāti Whātua, the Crown in that respect represents all other Māori as well as all other New Zealanders in relationship with Ngāti Whātua. There is no such thing as a kind of collective or whole of Māori that the Crown has a relationship with, and that, indeed, itself would be a misreading of the Treaty. Strictly speaking, the relationship, of course, is with hapū, but increasingly in recent times the relationship has tended to be at the iwi level.

The Treaty is a document of significant constitutional importance. It is the basis for the ongoing relationship between the Crown and Māori, and although it may have fallen into abeyance in the 19th century in many respects, nevertheless it has been revitalised during the 20th century and into this century. Although it is incorporated into our constitutional arrangements it has to be a matter of ongoing discussion, but it is clearly a question that requires a considered approach and, ultimately, mutual agreement between the two parties to the Treaty. Any change to that approach has to be consensual between Māori and the Treaty partner, the Crown, in that respect. Unilaterally seeking to delete all references to the principles of the Treaty in legislation, without reference to the wider question of the Treaty’s constitutional place, one can end up in a very, very difficult position, indeed.

Incorporation of the principles, by and large, is an important and appropriate mechanism to ensure that the Government considers and meets its obligations as a Treaty partner, and appropriate references to the Treaty provide a baseline level of protection to ensure the Crown meets those obligations. Removal of those references would undermine the partnership between the Crown and Māori and undermine Māori interests and rights under the Treaty. As Mr Finlayson said, removing the reference from section 6(1) of the Treaty of Waitangi Act 1975 would render that inoperable arguably leaving the tribunal with no jurisdiction to hear claims. We might just as well repeal the whole Act as opposed to simply removing reference to the principles of the Treaty. What would the tribunal be doing at that particular point?

There also arises the issue of the removal of the references to the principles of the Treaty in sections 8(1) and 8HB of the Treaty of Waitangi Act 1975. The bill would remove the ability of the court to consider and apply the principles of the Treaty. It is worth remembering that those principles have now been the subject of 20 years of judicial and policy work, identifying the principles in particular contexts, applying them to real issues: how the Crown should deal with historical and modern injustices, how it should make decisions that involve Māori, and how Māori can have input into those decisions. That covers, at the moment, an extraordinary range of things going on: issues around climate change; issues around the sustainable water programme; issues around forests in general—all these things and many other issues still ongoing around fisheries and fisheries management. All these involve the Treaty relationship and cannot avoid the Treaty relationship.

Even if this Parliament got cute and tried to remove the references to the Treaty, the courts themselves would still intrude those references back into the consideration of the jurisprudence around those kinds of matters, and properly so, in fact. Many of the pieces of legislation affected by this bill represent hard-won and important compacts between the Crown and Māori—as I said, the 1975 Act. The very apologies the Crown has offered for serious historical grievances could be effectively revoked by this bill opening up Treaty settlements already concluded yet again, and so we would go around in those circles yet again.

As I say, the Government has moved in a variety of ways to incorporate references to the Treaty in legislation more appropriate to specific pieces of legislation and the particular issues that arise in the context of that legislation. We need to think about the way we move forward, but this legislation is not, in my view, a way of moving forward. In the end this is a way of creating further confusion, which would not help Pākehā New Zealanders, it would certainly not help Māori New Zealanders, it would not help the Crown-Māori relationship, and it would throw us into a state of very considerable confusion—ironically, and I have to say this to Mr Paraone, probably leaving members of the judiciary in a stronger position to impose their own particular views and interpretations rather than to be guided by Parliament in that respect.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

Tēnā koe, Madam Assistant Speaker. I will start my speech by referring directly to the Principles of the Treaty of Waitangi Deletion Bill and reading from the purpose clause, which states: “The purpose of this Act is to delete and remove from every enactment those provisions which contain the expressions—(a) ‘the principles of the Treaty’; and (b) ‘the principles of the Treaty of Waitangi’, and (c) ‘Treaty of Waitangi and its principles’.”

Now I must say that it was a real privilege and a joy to be on the Justice and Electoral Committee and to hear the submissions on this bizarre bill to delete the “Treaty of Waitangi and its principles” from legislation. It was a privilege because it enabled me and the rest of the committee to get a real sense of how united the country seems to be in opposing this mean-spirited piece of legislative malevolence, and a joy because I got a buzz from the passion, the intensity, and the rationale that backstopped the overwhelming opposition to this bill sponsored by Doug Woolerton and represented by Pita Paraone on behalf of New Zealand First.

And it was also a joy to hear the submissions because I was able to listen to all the groups, many of whom were non-Māori, who were able to tell us what an incredibly dumb idea this bill was. They were not telling us that it was a good idea at the wrong time, or that it had merit but had simply been badly written. Nor, in fact, were they saying that there were some good clauses that might benefit from being rewritten. They were saying that this bill would do unspeakable harm to race relations in this country, roll back any gains made over the past 25 years, and work to the detriment of the whole nation. Te Korowai Aroha health centre said that taking the “Treaty of Waitangi and its principles” out of legislation would not enhance Māori health but would, in fact, make it worse. Ngāi Tahu-Māmoe said that the principles of the Treaty actually help to protect our ecosystem from pollution and the excessive extraction of resources. Sir Ivor Richardson himself said “for its part, the Crown [in 1840] sought legitimacy from the indigenous people for its acquisition of sovereignty, and in return, it gave certain guarantees”.

Those words—legitimacy, sovereignty, and guarantee—which all refer to concepts that are pivotal to the status of the Treaty and the relationship of the Treaty partners, came up time and time again through all the many submissions we received. The majority of submissions—some 160 out of 171—said that those concepts had been discredited by successive Governments and would be permanently scarred if this bill were to go through. In its submission, Te Kaunihera Kaumātua o Te Whanganui-a-Tara said: “Maori have honoured their part of the Treaty … as for the Crown, they have never fully honoured their part of the Treaty and continue to use legislation to steal what is rightfully owned by Māori—for example, the foreshore and seabed”.

The Treaty was supposed to establish a partnership in which both partners have a duty to act reasonably and in good faith, but this bill goes a long way towards destroying utterly a partnership that is already in dire straits following this Government’s support for police use of the Terrorism Suppression Act as a vehicle for mounting attacks against Māori communities and individuals, and for engendering widespread feelings of anxiety throughout the wider community. The Māori Party absolutely rejects New Zealand First’s unsubstantiated and ludicrous claims that taking the “Treaty of Waitangi and its principles” out of legislation would actually be good for the relationship between Māori and Pākehā, just as we also absolutely reject its preposterous claim that the “Treaty of Waitangi and its principles” will harm race relations in Aotearoa.

But—and I repeat “But”—that is not nearly as ludicrous, as preposterous, or as farcical as Labour’s Māori MPs going along with this legislative foolishness. For Labour’s Māori MPs to vote to delete the “Treaty of Waitangi and its principles” from legislation is as dumb as it would be for turkeys to vote for an early Christmas, or for Helen Clark to call for a snap election. But vote for it they did, and not just a couple of them, either, but the whole lot of them: Parekura Horomia, Nanaia Mahuta, Mahara Okeroa, Mita Ririnui, Dover Samuels, Dave Hereora, and Shane Jones. Who on earth do they think will support them after they have voted to delete the “Treaty of Waitangi and its principles” from legislation? Can Labour’s party politics be as dictatorial as that, and can Labour’s Māori MPs be rendered voiceless, so powerless, and so helpless that they would willingly sacrifice their very Māoriness by voting to delete the “Treaty of Waitangi and its principles” from legislation?

For heaven’s sake! This country is founded on the Treaty of Waitangi, and—dare I say it again—this very Prime Minister herself even went so far as to contradict her own vote on this bill when she called the Treaty of Waitangi the foundation document of this nation. It is not the principles that have caused harm; it is the principles that have not been honoured that have caused the real harm. The Ngai Tahu Māori Law Centre spoke to that very point when it said that “If passed, this bill will do unspeakable harm to the race relations of New Zealand Aotearoa.”

In that light it is very easy to see exactly what the mighty co-leader of the Māori Party, Dr Pita Sharples, meant when he said that the recent terrorist raids in Rūātoki had “set race relations in this country back a hundred years.” And in the same way that we condemn this damnable piece of legislation to the refuse heap, so too do we condemn in the strongest possible terms the recent actions taken against the Tūhoe nation, the Rūātoki community in particular, and tangata whenua in general.

The Waitangi Tribunal says that acting reasonably, honourably, and in good faith requires both Treaty partners to acknowledge each other’s respective interests, authority, and values. Yet what Te Runanga o Ngati Apa told us was that the “removal of the principles would signal a continuing erosion of the already fractured relationship between Maori and the Crown”. It described this type of behaviour as not befitting a partnership but, rather, as demonstrating the arrogance of a domineering partner. Ngāti Apa also reminded us of the words of the great Tahupōtiki Wīremu Rātana when, through Rātana MP Eruera Tirikātene, he placed before Parliament a petition calling for the Treaty to be enshrined in all legislation, a call that Ngāti Apa told us has been virtually ignored.

The New Zealand Chinese Association said that this bill was nothing more than an attempt at the “denial, erasure or the forced forgetting of New Zealand’s history”, when what we all need is to remember and acknowledge our history, accountability, reconciliation, and healing.

We could not help but notice that while we were hearing submissions on this bill, the United Nations Committee on the Elimination of Racial Discrimination was noting with concern the proposal to remove statutory references to the Treaty of Waitangi through this very bill. That United Nations committee was, of course, called in to respond to the Foreshore and Seabed Act, which was frequently and consistently referred to throughout select committee hearings as representing the ultimate breach of the Treaty.

Te Runanga o Te Rarawa, however, came at it from another angle altogether when it suggested that if New Zealand First’s argument that putting in the principles of the Treaty of Waitangi was made “not at the request of Maori, but by paternalistic and interfering Ministers”, then on principle New Zealand First should also have supported striking out other legislation like the Foreshore and Seabed Act, which was made “not at the request of Maori, but by paternalistic and interfering Ministers”. But did the New Zealand First members do that? Oh, no. The stated aim of their bill is not to help Māori; it is to eliminate all references to the “Treaty of Waitangi and its principles”. This bill, this callous attempt to wipe out all references to the “Treaty of Waitangi and its principles” from legislation, confirms the intention of this Government and its partners to minimise the Treaty, to marginalise Māori, and to reduce Treaty rights to a nullity.

The Māori Party will never accept the arguments of those parties, and of Labour’s Māori MPs in particular, who voted to destroy the Treaty. The Māori Party stands by its commitment to the principles of partnership, active protection, and the duty to act reasonably, honourably, and in good faith. The Māori Party stands by its commitment to “defending Maori rights and advancing Maori interests, for the benefit of the whole nation”. The Māori Party invites all other parties to enter into discussions as to how we might make the Treaty the basis of a positive future together, rather than the rock on which our uncertain alliance will forever founder. The Māori Party opposes this bill with every fibre of its being. Kia ora tātou katoa.

SUE BRADFORD (Green) Link to this

I think this bill has to be one of the most ridiculous member’s bills I have ever seen in the 8 years I have been a member of Parliament. It is a real pity that the Justice and Electoral Committee has had to waste its precious time considering seriously the proposition that words relating to the principles of the Treaty of Waitangi should be removed from a number of New Zealand statutes. The Green Party is delighted that the committee has reported back to Parliament wholeheartedly recommending that the bill be scrapped once and for all. And it was not just the committee that has condemned the bill in such an unqualified manner; it was also the submitters. I note that out of 171 submissions, 160 opposed the bill. That in itself is a great tribute to the progress that has been made in our community towards the population at large understanding the significance and meaning of the Treaty and its relevance to Aotearoa today.

It seems, thank goodness, that New Zealand First is quite an isolated outpost of the old colonialist, paternalistic way of thinking in its efforts to naively or otherwise overturn over 20 years of hard-won progress around the application of Te Tiriti o Waitangi to the life of our country.

The New Zealand First members are, quite unbelievably, trying to deny the relevance of the Treaty, by replicating, for example, the 1877 ruling of Chief Justice Prendergast who, in the case of Wi Parata v The Bishop of Wellington, declared the Treaty to be simple nullity, as Hone Harawira has also referred to. We have come a long way since 1877, and even further since the first reference to the principles of the Treaty in law with the Treaty of Waitangi Act 1975. If this bill was passed, the impact on the functions of the tribunal itself would be devastating. All the settlements already made would be at risk, and it is likely that the whole settlement process would justifiably be started up again. Decades of interpretation of statute would be cast into doubt, as would any legal obligation to ensure that tangata whenua are not further disadvantaged.

Nor is there any evidence of any major tangata whenua groupings making a call for the principles of the Treaty to be deleted from legislation in the way proposed. In fact, the situation is quite the opposite. Although there are still many problems around the implementation of Te Tiriti o Waitangi from a tangata whenua perspective, these problems come more from the Crown’s reluctance to fully honour the Treaty than from some blind over-adherence to it, as New Zealand First seems to believe. Moreover, there is nothing wrong with the Treaty principles, which have evolved through things like the work of the Waitangi Tribunal. In fact, all of us should welcome the mahi that has happened as part of our long journey towards making the words of Te Tiriti a reality.

These principles include, among other things, the fact that the Treaty established a partnership—both partners having a duty to act honestly and in good faith—that the needs of both Māori and the wider community must be met with compromise from both sides at times, and that there is acknowledgment of the special place of Māori in this country as tangata whenua. The Treaty is a living document, and we can use these principles as a guide as we all join in the journey towards a future together that truly enacts and embodies our key founding document. The inclusion of the Treaty as a core part of our new school curriculum, as announced yesterday, is the kind of positive step every party in this House should be endorsing, rather than giving any support whatsoever to suggestions like those put forward in the bill before us today.

Furthermore, if this bill or anything like it were in danger of succeeding in this or any future Parliament, it would be hugely damaging to the relationships long struggled for between the Crown and Māori. This relationship still has a lot of problems, as evidenced, for example, in the current devastating impact of the police terrorist raids on the people of Rūātoki, but the situation would be set back even further if this bill or anything like it ever become law in this country again.

The impact of the passing of this bill would be to decrease even further tangata whenua trust in the Crown, to throw hard-fought settlements into doubt, to minimise the significance of the Treaty overall, and to take away all the hard work that has been done to develop principles to help guide us all in resolving all those grievances from the past and ongoing. Some tangata whenua submitters also feel justifiably aggrieved that they have had to waste time on this nonsense, at all. Because the Labour Party voted for the bill at its first reading, a whole bunch of organisations—including Māori rōpū with an intense interest in the matters before us—have had to, as Te Runanga o Te Rarawa say in their submission,“expend precious time, energy, and resources to respond to a matter that ultimately will not see the light of day”.

In other words, this bill itself, and the fact that a sufficient number of votes were cast to get it past its first reading, is yet another attack and encroachment on the goodwill of tangata whenua to keep working with the Crown on a basis of responsible good faith. As a Parliament and as a society, instead of debating a bill like this we should be doing things like providing far more opportunities for public debate and discussion about the meaning and the place of Te Tiriti o Waitangi in our society, and working towards constitutional arrangements that ensure its enduring status and full implementation of the agreement we made with each other back in 1840.

Hon GEORGINA TE HEUHEU (National) Link to this

I am very pleased to take a call on the bill before us. I find it ironic that New Zealand First, which is the party that promulgated the Principles of the Treaty of Waitangi Deletion Bill, now finds itself in the ignominious situation of having to write a minority report on it. That has to be a first for this Parliament, I would have thought. It flags that all the other parties across the House have found this bill to be of no merit whatsoever. I think that New Zealand First should learn something from that. Hopefully, New Zealand First will look at all of the speeches that have been given here this afternoon so far—and I support all of the speakers who have rejected this bill—and understand exactly why the bill they propose is a nonsense and has the potential to set back the whole Treaty and to upset an ongoing dialogue between Māori and the Crown. It is a dialogue that was promised in the Treaty itself and that, were this bill allowed to go through, would result in claims such as we would never imagine could happen.

Would that not be ironic, as well, that the very party that says that the principles of the Treaty have led to untold complications over the last 20 years would be the one responsible for creating a whole new gravy train of claims, as New Zealand First members like to put it?

I think it is absolutely right that all parties in this House oppose this legislation. Although National supported it to its first reading, we did so because we felt there was some merit in examining some of the places where the phrase “the principles of the Treaty” have been inserted—for example, some legislation. But, overall, the Justice and Electoral Committee, having examined the bill, has come to the right conclusion, which is that, by and large, this bill is completely without merit.

In my first reading speech I talked about the jurisdiction of the Waitangi Tribunal and the 1975 legislation that places that jurisdiction before us. Quite frankly, I do not think that New Zealand First members had any idea at all that section 6 of the Treaty of Waitangi Act 1975 was where the phrase first surfaced. They never mention it. It is not mentioned in their bill. I do not recall any of them mentioning it in their first reading speeches. I find it absolutely appalling that a political party that presents itself as being responsible and caring about the future of New Zealand would promote a bill in this Chamber the source of which, for the substance of it, they have no idea.

Section 6 was never mentioned, as far as I can tell. Section 6 sets out the jurisdiction of the Waitangi Tribunal. In my view, it deliberately refers to “the principles of the Treaty of Waitangi”, which is the phrase that New Zealand First so objects to. There is a good reason for it, and I will give credit to Matiu Rata from the north, who would probably be turning in his grave right now at his whanaunga Pita Paraone and at the speech he gave about this bill. I give credit to Matiu Rata for realising that, yes, there is a Treaty of Waitangi, but there are two versions of it. So if we are going to create legislation that talks about the Treaty of Waitangi, which version are the courts or Parliament going to refer to?

What Matiu Rata did—because he is far more intelligent than anybody who promoted this bill, in my view—was provide for both the English version and the Māori version in that legislation. Why did he do that? Because he had to, in my view. He had to because the English version was obviously going to be put in, but the Māori version had to be put in because that is the version most Māori signed. So if we are going to take out the phrase “the principles of the Treaty of Waitangi” and leave “the Treaty of Waitangi”, which version? As I said, I credit Matiu Rata with the understanding and appreciation of the importance of including both those versions and of leaving it to the tribunal and subsequently to the courts, as has happened, to discern the underlying principles that come from a reading of both versions.

That is why we have that phrase “the principles of the Treaty of Waitangi” in our legislation. It is a proper reason to have it there. I will agree, with my colleague Chris Finlayson, that in some instances we should maybe be more specific about what we mean by that phrase, but, generally speaking, when there are two versions of a Treaty—the Māori version having been the one signed by our tūpuna—then we must include them both. What do we do when we are interpreting and measuring Crown action against those versions? We look for the underlying principle: the spirit of the Treaty.

That is what we have been doing, I would have thought, in a very measured, sensible way, as best we can, over the last 20 years, looking for those principles, eliciting the essence of the Treaty, and trying to find our way forward towards reconciling those things that Māori were guaranteed, those things that the Crown undertook to protect, and those things that the Crown, in its role as the Government, must also make sure it adheres to on behalf of all New Zealanders. That is the purpose of that phrase.

I urge Pita Paraone, in particular, to think hard about that. It absolutely pains me when he talks about the Treaty as being some race-based proposition. As Dr Cullen said, there were two peoples who came together. One happened to be ethnic Māori, the other happened to be ethnic English. That does not make it a race-based proposition, for goodness’ sake! I just do not know where Pita Paraone comes off saying that. It is an appalling statement that that member makes, in my view.

We have a basis for finding our way in this relationship between Māori and all other New Zealanders, and for recognising that Māori have a special place in New Zealand by virtue of the Treaty. It could have been some other group of people who were here; it happened to be Māori. They have a special place in this country, as tangata whenua, and that special place is recognised in the Treaty through the guarantees that were given to them of certain protections.

New Zealand First has been here for 10 years and prides itself on being a good party no matter what the issue is. Again, it also amazes me that this party, after all these years of asking what the principles are—which my colleague Chris Finlayson, in his first reading speech, had read into Hansard, I might say, if anybody is interested in looking at them—is still asking that question. What is the New Zealand public to make of that? I will tell members what some people will make of it. A year before the election next year, this party, as it always does before an election, loves to raise the spectre of the Treaty, race, or Māori. Those members love to do that. That is their legacy, and that will be the legacy of Pita Paraone if he is not careful. I would not like to have that legacy.

I will just conclude with a quote from Sir Henry Ngata, who was giving evidence in one of the cases before the court. He said that “… a contentious matter”—and I think that even I would concede that it is a contentious matter—“such as the Treaty will yield to those who study it whatever they seek. If they look for difficulties and obstacles they will find them.”—they will find them—“If they are prepared to regard it as an obligation of honour, they will find that the Treaty is well capable of implementation.” And I would ask New Zealand First members to set aside this ridiculous mantra that they are intent on and to think about the honour of the Crown, the place of Māori in New Zealand, and the duty that lies before us as parliamentarians to show leadership and to reconcile our peoples in this country as we go forward.

Hon SHANE JONES (Associate Minister in charge of Treaty of Waitangi Negotiations) Link to this

Kia ora anō tātou. Mō te wāhanga tuatahi, māku tēnei take e kōrero ki tō tātou reo Māori. E kore tēnei pire e neke whakamua. E kore tēnei pire e whakatūturungia e te Whare i a tātou e whakamene nei. Te ingoa o te pire nei, ko ngā mātāpono o te Tiriti o Waitangi. Āpōpō, āhea rānei ka rite tēnei pīre ki tētahi tūpāpaku, ka ngaro ki te ngākau o te whenua. Tāku i kōrero pēneki ai te take, he raupatu, he whakahāwea, he takahi i te Tiriti o Waitangi. Ko wai o tātou e māia ana te pērā.

Hon TAU HENARE (National) Link to this

First of all, I am pleading for a bit of leeway from the House because of my voice. I congratulate those members who sent the Principles of the Treaty of Waitangi Deletion Bill to the Justice and Electoral Committee. I cannot abide by the criticism by the Māori Party of the Māori members of the Labour Party for sending the bill to the select committee. We sent it to the select committee to find out whether there was any merit in the bill.

I understand completely the politics of why Labour supported it. I will just say that when one needs some numbers at the beginning of the term, one will not do anything but one will do some things that will hasten one’s opportunities on the Treasury benches. That is enough said about that.

I am sad that my relation stood up in the House this afternoon and said that this bill is not about the deletion of the Treaty of Waitangi. All one needs to do is look at the bill under the purpose clause and read: “The purpose of this Act is to delete and remove from every enactment those provisions which contain the expressions—(a) ‘the principles of the Treaty’; and (b) ‘the principles of the Treaty of Waitangi’; and”—most important—“(c) ‘Treaty of Waitangi and its principles’.”

That is the key message of this bill. It wants to paste over the issue of the principles of the Treaty of Waitangi, but it also wants to get rid of the Treaty of Waitangi. There is a party in this House—and I have been a member of that party, so I know what it does every 3 years when it falls behind in the polls—that brings out the worst aspect of this country, which is division. It brings down a nation rather than building up a nation. I want to put on the record that I abhor that sort of politics.

If this bill were to go through—and thank God it will not be passed—we would see civil unrest. We can put our finger on that. We have been talking of late about terrorism, and have been hearing the advice to wait until all the evidence is in. We would not have to wait for any evidence, because the passing of this bill would put this nation’s security at risk. I am not joking.

This bill is a foolhardy attempt to garner votes from what I would consider to be the fringe of New Zealand’s society. I would not even call them rednecks; I would call them the 5 to 7 percent of that fringe. There are parties in this House, on both sides of the political spectrum, that pander to the people in that fringe. We just happen to have a bill by one of those parties before the House today.

The interesting thing is that the effects of this bill would be far-reaching. My grandfather’s brother said that we have done too much not to do more, and that we have come too far not to go further. If we were to see the passing of this bill into legislation, then 25 years of hard work by some enormous people in our society, both Māori and Pākehā, would be flushed down the toilet within 5 seconds—not only the past 25 years but we are talking since 1840. The work that has been done by people in our communities would be flushed down the toilet in 5 seconds. So I say it is a good job—not to New Zealand First—that this bill is not going through.

Hon MITA RIRINUI (Minister of State) Link to this

I do not intend to take a very long call in terms of my views on the Principles of the Treaty of Waitangi Deletion Bill. I certainly want to thank the previous speaker, Tau Henare, for his contribution and his enlightenment of the House in terms of what the Treaty has done in relation to the bringing together of a number of communities—particularly Māori and non-Māori. The non-Māori community is made up of a lot of ethnic groups, as well. But I think the previous speaker undersells the value of this bill, even though it is our intention to oppose it at this stage.

I want to thank the New Zealand First members. Although I was very concerned at the outset when they tabled this bill in the House, I want to thank them for one simple reason. This bill gave us the opportunity to debate the purpose of the Treaty of Waitangi in our society. I always had the view that when I spoke about the Treaty of Waitangi, I would be speaking about Māori and the Crown—the Treaty partners. I found through this whole process that I am actually talking to a lot of ethnic groups. I never believed at any time in my life that I would be talking to the Indian community, to the Bangladeshi community, or to the Chinese, Vietnamese, Malaysian, or other Asian communities about the Treaty of Waitangi, yet I found myself doing exactly that.

When I say thank you to Doug Woolerton for introducing this bill—although I know that Pita Paraone had a lot to do with it—it is because we should have an open discussion from time to time about who we are as a nation. Certainly, this bill has provided us with that opportunity. Although I have some concerns about the intentions behind the bill, I think it is well accepted that the Treaty is very well embedded in the history of our country. I have had the opportunity many times to speak about the importance of the Treaty in terms of who we are as a nation.

I understand that during the select committee process a number of ethnic groups requested the opportunity to speak to their submissions at the select committee, and that they expressed concern that such a bill was before the House. They expressed concern that there may be some attempt to play down the value of the Treaty of Waitangi in terms of who we are as a nation. There was an expression of gratitude for the opportunity to actually express their views from an ethnic point of view about the Treaty of Waitangi and on what it does for them in terms of their value in this country. So I say again, on having been given this opportunity to speak to this particular bill, although I am opposed to it going any further, I thank the New Zealand First members for the opportunity for all New Zealanders to debate the value of the Treaty in our society and debate who we are as a people.

Statements have been made about a lack of understanding about the Treaty, although we have inserted the Treaty of Waitangi into something like 32 Acts of Parliament, and the question is raised as to what those principles are. There is quite considerable pressure on Ministers and the Government in general to identify what those principles are. In the Health and Disabilities Services (Safety) Act 2001 those principles are very strongly defined, so there should be no argument about what it means in terms of the health of our nation. But even though those principles are defined in the legislation, it should not limit the extent of how the Treaty can be used or defined in law. We have a number of legal academics of all persuasions who, from time to time, offer up some views of how the Treaty should be interpreted in certain situations. What that tells us is that the Treaty will speak for itself.

There is an old proverb amongst Māoridom from the great Ngāpuhi leader, Āperahama Taonui, whom they call the great prophet, and who many in this House are familiar with. I am not talking now about Willie Jackson or John Tamihere, who are the prophets of doom from time to time. The prophet said: “Waiho mā te wā. Mā te Tiriti anō hei kōrero āna ritenga, ehara mā te tangata.” The translation of that is: “If we listen very carefully, the Treaty will speak to us. If we do not listen very carefully, we will never hear what it is telling us.”

So in terms of our development as a nation, let this particularly important document speak to us and tell us about who we are, our genesis, how we became a country, and how we became a nation. We must let ourselves grow without being too academic about this whole exercise. It is incredible how the words of wisdom of the past come back to remind us that rather than talking too much, we should be listening a lot more.

I do not intend to speak too much more about this particular bill, but, once again, I thank the member who introduced this bill and New Zealand First for giving us the opportunity to have an open discussion about the Treaty of Waitangi, its principles, and who we are as a nation. Kia ora.

Hon BRIAN DONNELLY (NZ First) Link to this

I want to commence by saying to members of the House that since we left here at 6 o’clock I have been involved in a Māori language lesson. It was very, very intensive, but I have to say te reo Māori Kuki Airani.

As I sit and listen to the slings and arrows of the outrageous criticism of New Zealand First I cannot help but feel like Galileo must have felt when, under torture, he recanted, but at the same time he whispered: “But the earth still goes around the sun.” The issues that are inherent in this particular legislation, which have been presented in a distorted fashion by a number of speakers—in fact, many of the speakers—will not go away. They will continue to be here and will continue to be issues that have to be addressed.

The most unfortunate distortion, which has been peppered through many of the speeches, has been the suggestion that New Zealand First through this legislation is attempting to delete any reference to the Treaty of Waitangi or, in fact, to delete the Treaty altogether. The Treaty is a historical fact and is the document upon which our nation was founded. We cannot make it go away unless we want to change our history—not only the history of 1840 but our history ever since that particular time. Anyone suggesting that New Zealand First is trying to get rid of the Treaty of Waitangi is either being mischievous, ignorant, or malevolent.

Georgina te Heuheu is, of course, correct. In 1840 there were two Treaties, and the Māori version was the one that was signed by most people. But we need to realise that the two versions are quite inconsistent. For example, article 1 in the English version refers to sovereignty; we all thought that sovereignty was what had been signed away. In fact, in the Bible, the missionaries had translated the word “sovereignty” as “mana”. It was well known by the missionaries who were translating the Treaty that no Māori chief would ever sign away mana so they changed the word to “kāwanatanga”, which is a transliteration of “government”. The word was used in the Bible; kāwana was the position held by Pontius Pilate, and the Māori leaders would have known the powers that Pontius Pilate held. But certainly there is a difference between the words “sovereignty” and “government” that are in the two versions.

We have to recognise that, as distinct from the expertise available to the Americans when they were developing their founding document, Hobson was certainly no academic or constitutional lawyer—in fact, he left school at 10, he was Irish, and he spent most of his time on ships. Obviously he was literate, but certainly he was no scholar in this particular sense. He made a valiant attempt to put together his instructions. Nevertheless we are left with a document that is very difficult to put in place as it is.

Previous Governments have come up with this term of “the principles of the Treaty”. Why is New Zealand First concerned about this? It is purely and simply because the term has been put into legislation without any cognisance of what it actually means. Shane Jones, our new Minister, said we should all know what the term means, and that it has been defined by Lord Cooke of Thorndon. That was in the Lands case, where it was defined specifically in relation to lands with reference to the three Ps: protection, participation, and partnership. But I suggest that anybody who goes to any of our health boards where people have to draw up the principles of the Treaty will not find two that are exactly the same.

In fact, in this House in 2002 we asked a series of questions of Ministers. First, we asked the Prime Minister where the principles were written down. She said she was not aware they were written down anywhere. We then asked the Minister responsible for Treaty settlements, and she gave us the principles upon which the settlements were to occur—not the principles of the Treaty but another set of principles. We asked the Minister of Education and he said: “Look in the Education Act.” There is only one reference in the Education Act and that is in terms of the governorship of tertiary institutions.

But the doozy of the lot was when we asked the Minister of Local Government how the ministry ensured that the principles of the Treaty were put in place. She said that the ministry required all local authorities to ensure that the principles of the Treaty were complied with and that the principles were in their documents. We then asked her what those principles were that she required the local authorities to comply with. She said to us: “It’s not up to us to tell the local authorities what the principles of the Treaty are.” Herein lies the issue that New Zealand First is trying to address in this particular legislation. If there was a set of principles that we could all agree to, and was easy to find, then I guess we would not even be looking at this.

We in New Zealand First would like to refer to a paper that was written in, I think, 2000 by Matthew Palmer, the son of Sir Geoffrey Palmer. Sir Geoffrey Palmer was the one who put the reference to the principles of the Treaty in the State-Owned Enterprises Act. When asked why he was doing it he made the comment: “It’s just a simple flourish.” That is what led to the Lands case, and to judgments made by Lord Cooke of Thorndon and people like David Baragwanath. Matthew Palmer argued that it was not good enough to put in legislation just an ethereal principle of the Treaty clause. He said that people have to look at the legislation and spell out in more precise language what the obligations were for the Crown flowing from the Treaty of Waitangi and—if they wanted to use the term “the principles of the Treaty”—from the principles of the Treaty itself.

So what are those obligations that flow out in terms of legislation? It is quite ironic that Dr Michael Cullen and a number of people have spoken eloquently about the need to preserve “the principles of the Treaty” clauses in all our legislation. We have just had legislation go through our Education and Science Committee in which there was no reference to the principles of the Treaty of Waitangi. Some of the submitters argued very strongly that there should be. Interestingly enough, the Minister for Tertiary Education did not think it was a good idea to put a clause about the principles of the Treaty into that legislation.

The question has to be: if these clauses about the principles of the Treaty are so good, why would people not put it in the legislation in this case? The reason is that the legislation already holds a clause—that is believed, anyhow—which was put in place by Māori MPs. I can remember when that was done. It spelt out more clearly what the obligations through the tertiary education system to Māori people were under the Treaty of Waitangi. The legislation talked about meeting the developmental aspirations of Māori people. In other words, it took the principles concept and codified it more directly in terms of what that legislation needed to do, so the compliance could be measured against that. If, for example, the legislation does not bring about the developmental aspirations of the Māori people, we can say it is not being complied with. But if we had a clause about the principles of the Treaty in there, we would not know what we were talking about.

That is exactly what this Principles of the Treaty of Waitangi Deletion Bill is about. It is not about trying to get rid of the Treaty of Waitangi; it is not about playing a race card, as has been suggested. To those people who think it is about trying to get 5 percent at the next election, I say “How stupid.” This was put into the confidence and supply agreement with Labour following the last election.

It is good that this legislation is being discussed and debated. If there are flaws in the legislation that have been exposed that is probably good too, because that is part of the open discourse that we have. But let me say, and say it once again, that there has never been any intention in this legislation to deny the place of the Treaty of Waitangi in our society or to deny the importance of that Treaty in our society both today and into the future. Any suggestion that that is the case is not us playing the political card, it is other parties playing that card. That, I guess, is what I take greatest offence at—that where people are attempting to try to do something that an esteemed academic like Matthew Palmer has suggested should be done, we are then being accused of all of those terms, etc. That is unjust and unfair, because people are playing that card for their own political ends and not for the end of the development of the nation.