Waitangi Tribunal pushes back against Treaty Principles Bill policy

The Waitangi Tribunal has called for the Treaty Principles Bill policy to be dropped in its recently released report Ngā Mātāpono – The Principles: The Interim Report of the Tomokia Ngā Tatau o Matangireia – The Constitutional Kaupapa Inquiry Panel on The Crown’s Treaty Principles Bill and Treaty Clause Review Policies.

The report, which went out on 16 August, examined claims submitted to the Tribunal under urgency in relation to Crown policies intended to move a Treaty Principles bill forward and also to look into legislative enactments that made reference to Treaty of Waitangi principles (the Treaty clause review). Hearings took place on 9 and 10 May in relation to these claims.

The tribunal determined that with regard to the Treaty Principles Bill policy, the Crown had violated the Treaty principles of partnership and reciprocity, active protection, good government, equity, redress, and the article 2 guarantee of rangatiratanga. Moreover, the Crown did not engage with Māori.

The tribunal also identified several issues with the bill, including:

• the lack of “a policy imperative to justify its development”
• a reliance on flawed policy rationales
• the introduction of “novel” interpretations of Treaty principles
• its basis on a disingenuous historical narrative
• its distortion of te Tiriti o Waitangi text.

The Tribunal expressed concerns that, if implemented, the bill could lower the constitutional status of the Treaty/te Tiriti, eliminate its effect in law as recognised presently in Treaty clauses, restrict Māori rights and Crown obligations, limit Māori access to justice, affect Treaty settlements, and undermine social cohesion.

The tribunal also determined that the policy was predetermined and would lead to amendments to or repeals of Treaty clauses, weakening Treaty/te Tiriti protections for Māori and impacting the rights of Māori in relation to the realisation of Treaty/te Tiriti rights.

Taken together, the two policies reflected a pattern of the Crown using the policy process and parliamentary sovereignty against Māori rather than to fulfill Treaty/te Tiriti obligations, the tribunal said. The effects of the policies were or would be “highly prejudicial” to Māori.

Thus, the tribunal recommended that:

• the Treaty Principles Bill policy should be dropped
• the Crown should establish a Cabinet Māori–Crown relations committee to oversee the Crown’s Treaty/te Tiriti policies rather than assigning these matters to the Social Outcomes Cabinet Committee
• the Treaty clause review policy should be paused and its concept overhauled through collaboration and co-design with Māori
• the government should work together with Māori to address the damage to the Māori–Crown relationship and restore confidence in the Crown’s honour