Submission: Treaty Principles Bill

13/12/2024

My name is Deb Te Kawa. I oppose this Bill.

As mokopuna of Paora Haenga and a seasoned public policy practitioner teaching at Canterbury University, I oppose the Treaty Principles Bill with personal conviction rooted in my whakapapa and professional judgment informed by decades of expertise.

My tūpuna understood the Crown’s role needed clear definition and limitation – not arbitrary expansion through unilateral legislation like this Bill represents.

From my position as both a public policy practitioner and academic teaching institutional performance and political theory, I can state unequivocally that this Bill represents one of the most anti-democratic initiatives in modern New Zealand governance.

It attempts to calcify through simple legislative majority what should be dynamic, evolving constitutional principles, fundamentally undermining the sophisticated democratic mechanisms that have developed over generations.

A Fundamental Misunderstanding of Democracy

Democracy transcends mere majority rule – it rests on a complex foundation of constitutional principles, human rights protections, and institutional safeguards that protect all members of society.

The Bill fundamentally misunderstands this, attempting to reduce our constitutional framework to simple majority votes while simultaneously misrepresenting Te Tiriti. This creates a double assault on our democracy, weakening both our democratic institutions and our founding document simultaneously.

When majority rule operates without essential democratic guardrails, it becomes a tool of oppression rather than liberation. This Bill enables precisely what constitutional scholars warn against – the tyranny of the majority. It undermines the fundamental democratic principles of equality, justice, and protection of indigenous rights that mature democracies must safeguard through robust institutions, independent courts, and established dialogue and dispute resolution processes.

Core Institutional Issues

Partnership and Constitutional Dialogue

Te Tiriti established a partnership between Māori and the Crown that forms the constitutional foundation of Aotearoa. This Bill attempts to unilaterally redefine this partnership through a parliamentary majority, violating fundamental principles of constitutional democracy. Just as altering a business partnership requires all partners’ consent, rewriting constitutional principles demands genuine dialogue and consensus with Māori as Tiriti partners.

Legal and Historical Understanding

The Bill dismisses decades of careful judicial interpretation and scholarly work that has given practical meaning to Treaty principles. It replaces nuanced constitutional understanding with simplified statutory definitions, effectively discarding generations of legal development and Crown-Māori dialogue that have shaped our constitutional framework.

Protection of Indigenous Rights

Te Tiriti explicitly promised to protect Māori rights, including tino rangatiratanga. This Bill not only weakens these protections but fundamentally misunderstands their constitutional nature. These are not special privileges but fundamental constitutional protections that give our democracy legitimacy and distinguish it from mere majority rule.

Social Cohesion and Democratic Legitimacy

The Bill has already begun to erode social cohesion and democratic legitimacy by:
a. Creating artificial divisions between New Zealanders by misrepresenting Treaty rights as special privileges rather than constitutional protections
b. Undermining decades of progress in building cross-cultural understanding and partnership
c. Generating confusion about Te Tiriti’s fundamental role in our constitutional framework
d. Alienating rangatahi Māori who see their inheritance being diminished
e. Destabilising successful Treaty-based partnerships in communities, local government, and business
f. Creating unnecessary anxiety and uncertainty in Treaty relationships
g. Confusing new New Zealanders about the constitutional basis of our nation.

Practical Implications and Risks

Social and Democratic Consequences

This Bill will:
a. Generate unprecedented racial division and social tension
b. Unravel existing Treaty settlements and carefully negotiated policy frameworks
c. Undermine Māori ability to protect taonga and exercise tino rangatiratanga
d. Trigger extensive litigation as parties seek clarity on new statutory definitions
e. Damage New Zealand’s international reputation regarding indigenous rights.

Legal Risks

The Bill creates significant legal uncertainty by:

a. Disrupting established jurisprudence on Treaty principles
b. Creating conflict between statutory definitions and existing Treaty settlements
c. Generating unnecessary complexity in Treaty-based legislation
d. Risking non-compliance with international Indigenous rights obligations
e. Potentially triggering new Treaty claims and constitutional challenges

Economic and Fiscal Implications

The economic costs will be substantial:
a. Extensive litigation costs as institutions – public, private, third-sector, iwi, hapū, whānau, whanui, Māori, local and regional government – seek legal clarity
b. Policy revision costs across public and private sectors, in particular, as it relates to the Treaty clauses in legislation. Those are contemporary public policy settlements. No doubt those claimants will return to the table with a Treaty claim.
c. Project delays due to legal uncertainty, especially in infrastructure
d. Potential deterrence of international investment
e. Damage to New Zealand’s reputation for stable governance

Unintended Consequence

Paradoxically, the Bill may strengthen Iwi | Māori legal positions by:
a. Forcing reliance on explicit settlement rights rather than partnership principles will slow the Treaty settlement process and risk opening up existing settlements.
b. Creating more adversarial Māori-Crown relationships, which the Crown does not have the expertise or experience to succeed without a massive cost to the nation.
c. Empowering more aggressive assertion of existing legal rights, which Iwi | Māori are well placed to defend and assert. I look forward to Ngāi Tahu asserting their settlement rights in the coming years, especially regarding water, as well as its foreshore and its seabed.
d. Generating more complex regulatory environments will make the proposed incoherence in the Government’s Regulatory Stewardship policy seem like a walk in the park.
e. Increasing operational costs across society, which only a fearless political party, with a super-majority would want to be courageous enough to take on.

A Better Path Forward

Instead of this regressive legislation, we should:
a. Strengthen understanding of Te Tiriti across all communities
b. Build on successful Tiriti partnerships
c. Address challenges through dialogue and cooperation
d. Invest in education about our shared constitutional history
e. Support initiatives that unite rather than divide communities
f. Conduct transparent reviews of Tiriti and Treaty Clause effectiveness through appropriate mechanisms like a Royal Commission (see the NZ First proposals).

Conclusion

As a scholar and uri of Ngāti Porou, I affirm that we can and must do better than this Bill. It represents not just poor policy but also a fundamental misunderstanding of both democracy and Te Tiriti. The Committee must recommend against this regressive step and instead support initiatives that strengthen, rather than weaken, our constitutional democracy.

I urge the Committee to:
a. Recommend this Bill not proceed
b. Seek comprehensive advice from security officials, the Attorney General, and Treasury on various assumptions, risks and mitigations
c. Consider alternative approaches that strengthen rather than undermine our constitutional framework
d. Acknowledge that Te Tiriti is fundamental to New Zealand’s identity and future
e. Urge the Executive to apologise to the nation for wasting tax-payer resources on this endeavour – especially during a cost-of-living crisis.

Our nation’s strength lies in working together, respecting our differences, and building a shared future honouring Te Tiriti and our collective aspirations. This Bill moves us backward when we need to move forward together.

Nāku noa, nā

Deb Te Kawa