For nearly 50 years, it has been our version of a truth and reconciliation body. It has issued about 130 major reports, leading to over 1000 settled claims for breaches of Te Tiriti/the Treaty. It contains the most significant historical record of our county’s formation and constitutional evolution.
And it holds our political class to account on behalf of us all.
In a report released last Friday, Ngā Mātāpono — The Principles, the tribunal gave a deep analysis of the government’s two coalition Treaty proposals. First Act’s Treaty principles Bill policy and second New Zealand First’s Treaty clause review policy.
This report is an excellent read for everyone who thinks the principles of Te Tiriti/the Treaty are unclear. The report sets them out very clearly, as one would expect from a judicial body.
It has been widely reported that the tribunal found both policies to be a breach of the principles of Te Tiriti o Waitangi/Treaty of Waitangi. The Crown in pursuing these policies has not acted honourably nor with good faith.
The tribunal also found that the government’s predetermined outcomes for the Treaty clauses review will prejudice Māori in all areas of legislation. This should matter to those who claim democracy as the basis to support the Crown’s policies.
Democracy is not majoritarianism, as I have said before. It includes the rule of law which requires a government to act honourably and in good faith, and in accordance with its own rules.
The tribunal says the Crown is breaching its own rules in unilaterally pushing through these policies.
We now know that the two coalition Treaty policies are in breach of the principles of the Treaty and breach of the rule of law.
So how should we respond?
First we need to make submissions on the Treaty principles Bill. This Bill is a tool by the Act Party to garner votes, but has no political support in the Parliament. According to National and New Zealand First, they will not vote for it to proceed past the select committee stage.
But, the debate itself is Act’s goal. Act wants the select committee process because its debate is designed to polarise even if the Bill fails.
They want the media circus that will inevitably include anti-Māori submissions. It will be awful, like 2004 debate on the Civil Union legislation which saw gross homophobia expressed as part of a "national conversation" on marriage laws.
It will be important for Māori and Pākehā to step up and make quality submissions to the select committee to challenge the Principles Bill but also to de-escalate any nasty rhetoric that arises out of the debate.
Changing the tone of the debate away from the division that Act wants to incite is an important strategy. The debate should be about the value of te Tiriti/the Treaty, how it has protected the interests of all New Zealanders in the past and how it will shape a truly bicultural future for the benefit of all our kids and mokopuna.
Changing the rhetoric of the debate on the Bill is also important because the debate will inform what happens with the much greater threat to Te Tiriti/the Treaty. That threat is the New Zealand First policy to amend and narrow existing Treaty clauses.
This policy will remove existing legal rights from Māori. Treaty clauses in legislation protect property rights, cultural practices and representation.
At the tribunal hearing, the Crown asked the tribunal for advice on how the Crown might do this review in a "Treaty-consistent manner". Both the Crown and the claimants agreed that the principle of partnership is essential and that consultation is required.
The tribunal’s recommendation for the Treaty clauses review is to put it on hold and co-design the any such review with Māori.
This is an entirely reasonable recommendation but unlikely to be respected by the government.
As the tribunal says " ... at best, the actions of the Crown in pursuing these policies amount to a reckless disregard of the Māori–Crown relationship. At worst, they represent a cynical weaponisation of the policy process ... ".
Te Tiriti o Waitangi/Treaty of Waitangi has contributed to the protection of New Zealand’s forestry, land, waters, democracy, wealth and well-being.
It is the constitutional foundation of the New Zealand state and widely respected across the world for its commitment to partnership between the Indigenous people, Māori, and the colonising state.
This government’s "reckless disregard" for Te Tiriti/the Treaty has been called out now.
We have the opportunity to respond in a manner that not only challenges the "weaponised’ policies but reshapes the debate into a Te Tiriti/the Treaty-affirming aspiration.
■Metiria Stanton-Turei is a senior law lecturer at the University of Otago and a former Green Party MP and co-leader.
