SPANIARD - Provisions of the Treaty: all the ‘principles’ ever were

Originating in the Treaty of Waitangi Act 1975, which set up the Waitangi Tribunal, the notion of ‘Treaty principles’ refers to the provisions of the Treaty.

Neither the Act itself nor the Hansard record, nor the wider public record, suggest otherwise, and indeed it’s unthinkable that the 37^th New Zealand Parliament would have blithely, and without a special process, substantively altered the compact that started our nation in 1840.

The carelessness of the wording is a flashpoint in the ‘cock-up theory’ of New Zealand’s history.

If a problem can be addressed at its source, it should be. The Act should be changed to make clear that ‘principles’ means the provisions – the wording - of the Treaty of Waitangi, from the Treaty’s preamble, through its three Articles, to its closing statement. These established Crown sovereignty (now Parliamentary sovereignty), full rights to private property, and equal citizenship. New Zealand has been needlessly distracted by the ‘principles’ figment and needs to free itself from the contention it has fostered.

The Treaty of Waitangi Bill was introduced, much-delayed, on Parliament’s last sitting day of 1974, by the Honourable Matiu Rata, then-Minister of Maori Affairs. He was absent, ill, for much of that 1972-1975 Labour-governed term. While the Treaty’s democratic ethos was widely grasped, its details were, five generations after signing, understandably little-considered by most New Zealanders, including many of those in and around Parliament. New Zealand had long been a successful sovereign democracy, after all.

Rata, well-acquainted with the Treaty for a Member of Parliament at the time, gave recognition to the recently-created New Zealand Day, to be celebrated annually on 6 February, and, through the Bill, proposed creation of the Waitangi Tribunal:

“One commemorates the formal pact which began New Zealand’s unique and envied advancement, and the other will honour in perpetuity the terms of that formal pact. This Bill will therefore give formal and statutory recognition to those terms.”

“The terms of that formal pact”: the Treaty’s provisions.

Rata went on: “If Captain Hobson’s statement in 1840 “He iwi kotahi tatou” – “We are one people” – is to have any real and continued meaning, I believe this Bill and its proposals cannot be ignored.”

The following debate, and progress of the Bill, ranged inconclusively and failed to address the slapdash use of ‘principles’. Discussion in Parliament on that 1974 day ran a gamut, from comment on the proposed tribunal’s non-retrospective focus, to its constitutional effects, and how it would apply to immigrating New Zealanders. The opposition leader, the National Party’s Honourable Robert Muldoon, on one hand opined, “my overall reaction is that the effect of this Bill will be more apparent than real”, and on the other asked, now-seemingly presciently, “whether special legislation of this sort makes us one people or two peoples”. He even raised the issue of how to determine the Treaty principles - but prompted no related discussion.

Of course, the Hansard is simply a record of what was said and done in Parliament relating to the Bill, as well as a snapshot of the collective mindset of the period. The Act is what matters, in the end.

The Treaty of Waitangi Act was passed with no select committee changes on 10 October 1975, the last sitting day of that year and of the parliamentary term.

In the brief interpretation section of the Act as it was then, the word ‘principles’ is given no explanation; the words ‘Maori’, Treaty’, and ‘Tribunal’ are. In 1975, ‘principles’ was a sloppy proxy for what Rata described as ‘the terms of that formal pact’: the Treaty’s provisions. Sloppy, but not sufficiently so, in those times, to prompt disambiguation.

For over a decade after enactment, no significant actions taken under the Act suggest anything other than the Treaty’s provisions as basis for the principles wording. Then, in 1986, Geoffrey Palmer inserted the principles notion into the State-Owned Enterprises Act at the eleventh hour, preparing the ground for the crucial 1987 ‘Lands’ case and the following avalanche of Treaty statutory clauses, in their own rights causing ongoing frustration in the workings of our nation.

New Zealanders had reason to believe, after the 2023 Government coalition agreements were announced, that the Treaty’s nation-founding democratic intent would be freed from those complications. But the Act Party’s Principles of the Treaty of Waitangi Bill didn’t pass, and New Zealand First’s initiative to remove Treaty provisions from statutes will achieve just part of its aim. New Zealand continues to be held back by the principles figment.

Changing the Treaty of Waitangi Act to clarify that ‘principles’ are the provisions of the Treaty will achieve both coalition agreements’ objectives: reversion to what the Treaty agreed in 1840; and rejection of the Treaty as anything other than what was agreed. The principles notion must become a footnote in our nation’s record.

Spaniard has a background in conservation, farming, and recreation.