The following was my public submission to the Justice Committee on the Principles of the Treaty of Waitangi Bill.
I am writing to oppose the Treaty Principles Bill. While I don’t question Parliament’s authority to pass such a bill, and agree with the objective of providing greater clarity to the meaning of the principles, the principles as defined in this bill are problematic.
Constraining Parliament
Principle 1(a) appears to add a new constraint to Parliament: Parliament makes laws “in the best interests of everyone”. This constraint seems reasonable on the face of it, why shouldn’t Parliament be limited to that which is in everyone’s best interest? Interestingly however, when the Constitution Act 1986 mentions Parliament it provides no guidance or constraints on the nature of laws Parliament can make. Section 15(1) simply states that Parliament has full power to make laws, without saying what those laws must be for, and I think the Constitution Act takes the correct approach.
In the phrase “the best interests of everyone”, who is everyone? If it refers to all New Zealand residents, then Principle 1 limits Parliament’s ability to ratify treaties which are for the benefit of those outside New Zealand. If “everyone” refers to all the people in the world, then Principle 1 limits Parliament’s ability to pass laws that advantage New Zealanders over non-New Zealanders. And what of private bills? According to Standing Order 257, they may benefit a single person, not everyone.
I have no issue with the phrasing “everyone’s best interest” as a piece of political communication; there’s a long tradition of political thought that advocates for working for the common good. But political speech don’t always map neatly to legal phrasing. The Constitution Act was right not to define an exact purpose for Parliament so that each Parliament of the day is free to pursue the common good as it sees it.
Reasonably Expected Rights
Principle 2 states that (outside of Treaty settlements) the rights of hapū and iwi don’t differ from “the rights everyone has a reasonable expectation to enjoy”.
This “reasonable expectation” introduces some ambiguity. What rights would a reasonable person expect? Usually, courts are useful here. They can develop tests for determining what reasonable people expect. However, this places us back in the same situation the Treaty Principles Bill is supposed to prevent: that courts are determining which rights hapū and iwi have.
Legislating Facts
The three principles in the Treaty Principles Bill bear little resemblance to the original text of the Treaty. I am sure the committee will receive more expert submissions on this point than I can provide. But I also recognise that regardless of the original text, Parliament has the power to pass any law it sees fit, whether it resembles the Treaty or not.
But what does that say about our Parliament if it simply ignores historical evidence and chooses to simply declare that certain things are true?
This reminds me of the Safety of Rwanda (Asylum and Immigration) Act 2024 recently passed by the UK Parliament. The Act simply declares that Rwanda is a safe country, regardless of evidence one way or the other. While the UK Parliament has the power to pass such a law, it seems to be a dangerous example to follow. If the NZ Parliament wishes to constrain itself or to extinguish or create certain rights, then it has the power to do so. But it should do so using clear, unambiguous language, not by legislating facts.
Better Alternatives
Courts are the appropriate place to interpret the law, including the meaning of the Treaty principles mentioned in various statutes. However the Treaty Principle Bill’s stated objective of creating “greater certainty and clarity to the meaning of the principles in legislation” is understandable. The principles as they are currently defined are buried in various court rulings, but defining them in statute would lay them out in black and white for everyone. It’s important for the public to understand the Treaty principles, but it would also be useful for the public sector who need to apply the principles in their work.
An alternative approach might be for the Government of the day to explain more clearly how they’re applying the principles as they see them. Section 7.68 of the Cabinet Manual already states that Ministers must confirm their bills comply with Treaty principles. If their reasoning was published (like a Section 7 report for Treaty principles) then the public could see what principles the Government is testing their bills against.
This might not be a perfect solution, but I hope it illustrates that if the Government wants to provide greater clarity on the Treaty principles then there are options for how it could do this. Options that don’t undermine the courts’ ability to interpret the law, and which don’t have Parliament legislating facts.
Red Bearing 