Tribunal and Govt play chicken, on high speed collision course

Analysis: The Waitangi Tribunal and the Government are engaging in extraordinary and perhaps unprecedented brinkmanship. For at least one of them, this game of chicken could prove terminal.
This week, the Government decided to quietly bring forward the introduction of the contentious Treaty Principles Bill to this Thursday, without announcing it. And Newsroom understands the bill’s three principles would be used to interpret any law where Treaty principles would normally be considered relevant – not just legislation that refers to Treaty principles directly.
Bringing the bill forward will allow it to be introduced before the protest hīkoi arrives on Parliament’s forecourt; equally or more importantly, it would have put the bill before the House before the Waitangi Tribunal was scheduled to report on the process.
This was significant, because section 6 of the Treaty of Waitangi Act 1975 bars the tribunal from considering or reporting on any bill that is before Parliament.
The decision to bring the bill’s introduction forward wasn’t disclosed in the Prime Minister’s post-Cabinet press conference but Associate Justice Minister David Seymour says the tribunal is reading too much into it.
“Frankly, the level of self-importance, that the Waitangi Tribunal is indulging in, has maybe led to them over-analysing a little bit,” he tells Newsroom. “It’s disappointing, because the Waitangi Tribunal’s claim is that we all have a role to play honourably, and yet, within hours of us giving them information, it’s all over the media.
“I’m not going to say it’s a betrayal of trust, but their behaviour in the last few years resembles more of a political activist group than an august chamber designed to resolve some of the scars of a nation’s history.”
Certainly, the early introduction of the bill could have effectively neutered the tribunal. The tribunal learnt of this.
So, on Tuesday night, speedily and without any advance notice, the tribunal also accelerated its own process. It released a pre-publication version of part two of its interim report into the Treaty Principles Bill.
It’s scathing. “If this bill were to be enacted, it would be the worst, most comprehensive breach of the Treaty/te Tiriti in modern times,” the report finds.
It refers to the notorious decision of Chief Justice James Prendergast in the 19th century court case, Wi Parata v The Bishop of Wellington, that is widely cited as setting a precedent for 100 years of harm to Māori. “The Crown would be turning the clock back to 1877 and the decision in Wi Parata that the Treaty/te Tiriti is a ‘simple nullity’,” the tribunal says.
Newsroom has spoken with Waikato-Tainui leader Tukoroirangi Morgan, Te Rarawa kaumatua Haami Piripi, and Ngāti Awa lawyer Natalie Coates. They’re angry, and plan to join the hīkoi to Parliament. They dispute Seymour’s insistence that his Treaty Principles Bill wouldn’t effectively rewrite the Treaty.
“They’re saying that they’re trying to promote a healthy conversation and national debate around this,” says Coates, the co-president of the Māori Law Society. “What’s happening is not that.”
“Seymour says he wants this national conversation, but then they try to cut off this particular voice, the Waitangi Tribunal. You would think the Government would welcome that expertise, given that they’re saying that it’s supposed to have been reflective of te Tiriti o Waitangi.
“The tribunal is just doing its job, to look at Crown actions and assess them against te Tiriti o Waitangi, and that’s a really important monitoring role that exists within our society.”
The new Māori Queen, Te Arikinui Kuini Ngā wai hono i te Pō, has made few public appearances yet as she mourns her father – but she too may join the hīkoi. That’s yet to be confirmed.
A Cabinet paper spells out Seymour’s three principles, as defined by his bill.
The first principle would confirm that the Government has full power to govern and Parliament has full power to make laws.
But the tribunal report says this misinterprets the kāwanatanga granted to the Crown in 1840, “which is not an unbridled power restrained only by its own sense of what is in the best interests of everyone”.
The second principle would require the Crown to recognise the rights of hapū and iwi but only those they had when they signed the Treaty in 1840, and only if those rights are confirmed by legislation or by agreement with the Crown.
Officials have warned that this does not accurately reflect Article 2 of the Treaty, which affirms the continuing exercise of tino rangatiratanga.
The tribunal says this principle disregards the rights guaranteed to Māori by the Queen in 1840. People in a liberal democracy can and do have different rights, it says, and recognising the distinct status and rights of indigenous peoples is common around the world and is not anti-democratic.
Finally, the third principle would specify that everyone is entitled to the equal protection and equal benefit of the law without discrimination. In a modern context, the Cabinet paper says, that can be read as a right to equality for everyone.
The tribunal advises that this universal right bears no resemblance to the agreed Treaty right; that Māori face barriers to equality that others do not, and many of those barriers were of the Crown’s making.
A decision from the Government to bring forward the introduction of the Treaty Principles Bill to prevent the tribunal issuing its report would seem, quite frankly, like an ambush. Given the tribunal’s recommendations are not binding, there were no public policy grounds for any Cabinet attempt to gag it.
The report would never have tied the hands of the executive, nor trodden on the toes of the legislature; it would only have contributed to informed discussion of the very sort that the bill’s sponsor David Seymour claims to be seeking.
The decision of the tribunal, in turn, to bring forward its report even earlier is even more extraordinary. If there’s such a thing as a counter-ambush, this was it.
By the time Waitangi Tribunal chair Chief Judge Caren Fox opened fire, she could see the whites of the ministers’ eyes.
This is all the more notable because the eyes of some ministers – Act’s David Seymour and NZ First’s Shane Jones, in particular – seem almost red with anger at the tribunal’s criticisms of the business of government.
Despite warnings from Attorney-General Judith Collins to back off, and a slap on the wrist from the Prime Minister, they’ve repeatedly challenged the very existence of the Waitangi Tribunal.
The Act leader attacked the tribunal after it summoned Karen Chhour, one of his MPs, to appear before it. “Perhaps they should be wound up for their own good,” he warned in May. “I’m worried they haven’t thought about who they’re dealing with.”
Speaking to Newsroom this week, he doubles down on his implicit warning to the tribunal and its members: “There may well be a place for them, but the way that they’re behaving at the moment, it’s getting increasingly difficult to see what that is.”
Shane Jones has said he is looking forward to a review of the tribunal. It was, he said, operating as a “wannabe American star chamber Pulp Fiction gig”. And he added: “What gives the Waitangi Tribunal the belief that their power is greater than the voting democratic will of Kiwis?”
This fundamentally disregards the fact that the tribunal is doing precisely what it’s tasked with doing, by law. Parliament determined its jurisdiction through the Treaty of Waitangi Act; the tribunal is required to consider complaints of breaches within its statutory terms of reference.
It has a few tightly constrained powers to make binding recommendations over certain Crown assets – but on the most part, it can only make recommendations. So for Jones to suggest it’s trampling the democratic will of voters is simply tiko.
To the contrary, the tribunal finds that by “deliberately excluding” the Māori Treaty partner from the process, it is the Government that is flying in the face of almost 40 years of jurisprudence and previous Crown acceptance of this duty.
“If the bill remained on the statute book for a considerable time or was never repealed, it could mean the end of the Treaty/te Tiriti,” its report says.
“This exclusion of Māori from any say in a process to abrogate their fundamental rights is extremely prejudicial. The impacts will not fade for a long time … Any trust or goodwill earned by Treaty settlements is under threat.”
Tukoroirangi Morgan and Haami Piripi say that by unilaterally telling judges and public servants how to interpret the Treaty, the bill would effectively rewrite the Treaty.
“This bill claws back all of the things that our forebears fought for,” says Morgan, the chair of Waikato-Tainui’s tribal executive. “It’s winding back the clock to colonial times. It is, without a doubt, the most radical rewrite of the Treaty, and that should concern all New Zealanders, not just Māori.”
Seymour is “poles apart” from Māori on the rights guaranteed to Māori by te Tiriti, he adds. “Our forebears signed a partnership agreement in good faith, that we would live with the colonial government, but at the same time have our rights and interests, our tino rangatiratanga, recognised by the Crown. And that has never changed.”
Piripi says busloads of Māori from the north will drive down to Wellington to join the hīkoi in Wellington. He’s open to reform of the Waitangi Tribunal, but says it should be done with the proper constructive intent.
“Obviously the intent here is really to dismantle and damage its reputation. But the tribunal is actually a commission of inquiry, and sometimes that status is forgotten, and the role it’s played in the unity of our nation. It’s been the thread that’s sewn us together. What Mr Seymour is doing is he’s trying to force us all apart.
“If the Crown is interested in removing the Treaty of Waitangi, then I guess we go back to the pre-Treaty days and have to start again in terms of acquisition of sovereignty … If the Government doesn’t want a Treaty, then why would we want a Treaty partner?”
Seymour says the tribunal’s criticism of a failure to engage with Māori is “blatantly untrue” and that every New Zealander will have a chance to make submissions to the select committee. “There are seven people of Māori descent in the Cabinet, including myself. And if you’re suggesting that I’m somehow not validly Māori, that tells you all you need to know about how toxic this environment has become.
“I think what the opponents of the bill really despise is precisely that fact that we are democratising debate on the Treaty. They don’t see Māori as people. They seem to have some unusual conception of what it means to be Māori.”
He rejects the tribunal’s finding that liberal democracies can recognise a distinct status and rights for indigenous peoples. “It’s absolutely anti-democratic. Having one person, one vote and equal rights is the whole point of liberal democracy.
“I think people struggle sometimes to switch between people having different specific property or challenges or situations, that’s certainly true. But they have that within a framework of equal rights.
“The difference between me and Graeme Hart, the richest guy in New Zealand, is he has about $10 billion more than me in assets. Lots of things are different between us, but we have exactly the same rights in New Zealand.”
Asked whether the Government should have a responsibility to assist Māori, where there is evidence that previous Crown actions contributed to their poor education, housing, health, and imprisonment rates, he says no.
“Is that going to apply to Cambodian refugees? Is it going to apply to people who came here fleeing Irish famines or Scottish clearances? Is it going to apply to people who survived the Holocaust? Because the truth is that there are people who have been terribly disadvantaged over generations. There are people who have had wonderful luck. The real question is, why you insist on using race as the way to distinguish which ones you help and which ones you don’t.”
National and New Zealand First have said they will not support the bill beyond its first reading. But Haami Piripi says he doesn’t believe them – and regardless, the tribunal says the harm will already be done, just by introducing the Treaty Principles Bill.