The so-called "Treaty Principles Bill" has been introduced to the House of Representatives and claims to define the principles set out in Te Tiriti o Waitangi.
The Bill’s Principle 1, supposedly derived from Article 1 of Te Tiriti, is: "The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws, (a) in the best interests of everyone; and (b) in accordance with the rule of law and the maintenance of a free and democratic society."
Setting aside arguments about interpretation of "kawanatanga" in the Maori version, it should be noted that no "free and democratic society" existed in 1840. The nearest approaches to such nations beyond Aotearoa disenfranchised the female half of the adult population, slaves, and those lacking property, so "Principle 1", desirable as it may be, is not a principle of Te Tiriti.
Article 2 of Te Tiriti "confirm[ed] and guarantee[d] to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession" (English version) and promised to "protect the Chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures" (translated Maori version), unless they willingly sold them to the Crown.
But while, under Principle 2, subclause (1) of the Bill "The Crown recognises, and will respect and protect, the rights that hapū and iwi Māori had under the Treaty of Waitangi/te Tiriti o Waitangi at the time they signed it", that assertion is qualified by subclause (2): "However, if those rights differ from the rights of everyone, subclause (1) applies only if those rights are agreed in the settlement of a historical treaty claim under the Treaty of Waitangi Act 1975."
It is clear, in the light of the conquests, confiscations, and law-making by the Crown since 1840, and the undeniable fact that none of the Treaty claim settlements agreed to so far (and the process is still incomplete) have matched the value of land and other taonga wrongfully taken from tangata whenua, nor re-established tino rangatiratanga, that Section 6 (2) of the Bill makes a nonsense of Section 6 (1).
Principle 3 states that "(1) Everyone is equal before the law. (2) Everyone is entitled, without discrimination, to: (a) the equal protection and equal benefit of the law; and (b) the equal enjoyment of the same fundamental human rights."
Again, those are worthwhile general principles, but not related to Te Tiriti. Article 3 of Te Tiriti, which reads (English version): "In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects", does not qualify the protection given by Article 2, so those rights and privileges must be in addition to those reserved to Maori under Article 2. Principle 3 does not reflect the clear meaning of Article 3, and would only be consistent with it if it included a proviso reflecting the provisions of Article 2.
The Ministry of Justice’s Regulatory Impact Assessment states that the policy given effect by the Bill "is not consistent with the Treaty/te Tiriti". The Waitangi Tribunal found that policy "unfair, discriminatory, and inconsistent with the principles of the Treaty, contrary to the article 2 guarantee of tino rangatiratanga, and ... significantly prejudicial to Māori".
Calling the Bill "The Principles of the Treaty Bill" is, to quote Winston Churchill in the House of Commons "a terminological inexactitude", and its title is a sad reflection on the integrity of both those promoting it, and the parties that have allowed it to be introduced under that title. Titling it "The Elimination of the Principles of the Treaty of Waitangi Bill" would make the Bill no less abhorrent, but would at least be truthful.
Seeking to subvert the clear meaning of Te Tiriti, the founding document of our nation, is shameful, as is proposing to do so by a simple referendum. The only possibly justifiable use of a referendum for that purpose would be if Tangata Whenua, as one treaty partner, and Tangata Tiriti, as the other, each had to agree by a majority to the implementation of the proposed Act, and even then those opposed to the subversion of Te Tiriti would have just cause to feel aggrieved.
Most of the historic breaches of Te Tiriti cannot be literally reversed without causing further injustice. Treaty settlements have been, and remain, a way of addressing, at least in principle though not in value, the loss of land and other taonga illegally taken from Maori. But what about Tino Rangatiratanga?
Our nation’s constitutional governance structures, lacking a written constitution or a second chamber, are seriously deficient, in that a government commanding a majority in the House of Representatives has "unbridled power".
In view of the provisions of Article 2 of Te Tiriti it is tempting to suggest that Parliament should have a second chamber, made up of iwi representatives, which must assent to (not necessarily approve) any legislation by the House before it goes to the Governor-General for his/her assent. Such a structure has been modelled successfully by the Anglican Church in Aotearoa, New Zealand, and Polynesia since 1992.
That may be a step too far for some. A compromise could be to have a second chamber of which half its members were appointed by iwi and the other half elected by those on the general electoral roll.
Such a structure, though not directly honouring Article 2 of Te Tiriti, would at least partially address the effect of the Crown’s usurpation of Tino Rangatiratanga, along with the benefit of moderating, when necessary, what Sir Geoffrey Palmer once described as "The fastest lawmaker in the West".
■Tony Fitchett is a retired Dunedin doctor.
