At the DSC we recognise the importance of honouring te Tiriti o Waitangi/the Treaty of Waitangi. Attached below is our submission to the Select Committee voicing our opposition to the Principles of the Treaty of Waitangi Bill.
We would like to acknowledge the work of Te Tai Haruru and @terakauture from the Auckland Law School whose own submission informed ours.
The Disarmament and Security Centre (“the DSC”) is a non-governmental organisation, the primary objects of which are to:[1]
- Promote a climate of peace in Aotearoa/New Zealand;
- Promote peace and disarmament education throughout the education system and the wider community
The DSC is empowered to “do any act or thing incidental or conducive to the attainment of these objects.”[2]
We make this submission by virtue of this power.
Our Submission:
The DSC opposes the Principles of the Treaty of Waitangi Bill(“the Bill”) and recommends that the Government not proceed for the following reasons:
- The Treaty of Waitangi/te Tiriti o Waitangi is one of Aotearoa’s foundational constitutional documents, and is underpinned by the idea of the Crown and Māori co-existing peaceably.
From the founding of our organisation, we have been committed to upholding the Treaty of Waitangi/te Tiriti o Waitangi and to working in partnership with Māori as tangata whenua in all our work and activities. We view the Māori-Crown relationship, as expressed in the Treaty/te Tiriti itself, as one which benefitsall New Zealanders. We believe that cherishing te ao Māori, which is a unique taonga to Aotearoa, benefits tangata te tiriti as well as tangata whenua.
While “peace” is not directly referenced in the Treaty/te Tiriti, it is our view that it reflects a desire of both treaty partners (the Crown and iwi) to live together in a peaceful Aotearoa – however imperfectly that has eventuated. This Bill does not resolve those imperfections – it exacerbates them.
Therefore, as an organisation founded with a specific object of promoting a climate of peace in Aotearoa, we strenuously object to the Bill.
- Regardless of whether or not this Bill becomes law, it is already in and of itself a breach ofthe Treaty/te Tiriti, in particular its ideal of partnership. Māori, as one party to the Treaty/te Tiriti were not involved in any part of creating this Bill. One party to a treaty cannot change the terms of any agreement on their own. The Bill fails to honour the assurances made to Māori leaders at the time of signing. Further, the Bill overrides the partnership (and other) principles that have been developed through statute and the Waitangi Tribunal, as well as the courts, over the last forty years. Notwithstanding the promises of partnership, this Bill reinforces the existing power imbalance in which Māori are subordinated to the will of the Crown.
Breaching our Treaty/Tiriti in this way with complete disregard of the underlying ideal of partnership is not conducive to a peaceful society.
- The Bill is divisive and has been divisive since it was first suggested during the 2023 general election campaign. As an organisation committed to peace, we are extremely concerned about this. The Crown asserts that the purposes of the Bill are to “promote a national conversation about the place of the principles in our constitutional arrangements; create a more robust and widely understood conception of New Zealand’s constitutional arrangements, and each person’s rights within them; and build consensus about the Treaty/te Tiriti and our constitutional arrangements that will promote greater legitimacy and social cohesion.”[3] However, this is clearly not the case. Contrary to the Crown’s assertions that the Bill is intended to promote a national dialogue, we see the simplistic terms of the Bill, and the manner in which it has been rushed through Parliament, as hurtful to Māori, divisive in our communities and is perpetuating mis-understandings, rather than clarifying New Zealand’s constitutional arrangements (which can only be properly understood in the context of our history). In our view, the Bill actively damages Aotearoa New Zealand’s ability to advance as a peaceful, cohesive and progressive society.
If the Crown was genuinely committed to such a kōrero, it would take steps to ensure thatall people of Aotearoa are well informed – this would take considerably more time. It would also join existing conversations that are already taking place in the context of the Waitangi Tribunal’s Constitutional Kaupapa Inquiry. We note that the Waitangi Tribunal has recommended that the government should abandon the Bill and should pause its work on the Treaty clause review policy to allow the Constitutional Kaupapa Inquiry to inform and contribute to the broader national kōrero.[4] We endorse that call. This would constitute a stepping stone towards a more genuine path to a peaceful dialogue.
- The Bill does not take account of the fact that there are already several laws in force in Aotearoa that recognise individual rights. There is no need or justification for their inclusion in this Bill (as per Principle 3 in Clause 6). In fact, including individual rights in this way undermines the ideal of collective rights and the common good as articulated in the Treaty/te Tiriti itself. Article 3 of the Treaty/te Tiriti guarantees to Māori royal protection and specific rights that were already available to settler individuals. Reducing Treaty/Tiriti principles to individual rights with a focus on property rights will deliver neither equal rights nor equity to all New Zealanders. Instead, it will deliver a majoritarian politics of domination, oppression, and discrimination. It is clear from history throughout the world that such moves lead inexorably to civil unrest.
- The Bill provides for a referendum in the event it should be passed by Parliament. Such a blunt yes/no mechanism to decide on such a grave constitutional matter is entirely inappropriate, wrong and will be divisive. It is true that referenda have been used elsewhere to settle (or at least to advance debate on) constitutional matters – for example, the referendum that was held in Ireland following the Good Friday Agreement, but those circumstances are entirely different to our situation here now in Aotearoa. As with the attempt to introduce individual rights into this Bill, the mechanism of a referendum is wrong, inappropriate and would be damaging to our communities. It should not replace a national conversation, advocated by active effort from the Crown and which could happen through the Constitutional Kaupapa Inquiry, as explained above.
- The Treaty/te Tiriti protects and acknowledges Māori self-determination (tino rangatiratanga). The proposed Principle 2 in Clause 6 of the Bill is contrary to this. Indeed, contrary to the assertion in the Bill that it does not undermine or amend the Treaty/te Tiriti, the way in which it is silent on te tino rangatiratanga – a key component of the 1840 agreements – does exactly that.
- The peaceful settlement of disputes is the main kaupapa of our organisation as we advocate for alternatives to aggression in responding to conflict on the international stage. It is a matter of great regret that we find ourselves making a submission to our own government urging it not to abandon existing mechanisms and the existing legal frameworks for the peaceful and comprehensive resolution of disputes with Māori.
These existing frameworks include both recourse to the courts of Aotearoa to determine respective rights and responsibilities of Māori and the Crown in particular disputes (this is the route by which the existing principles have evolved and been articulated) as well as the treaty settlements process between the Crown and some iwi. While neither of these routes are perfect, they at least provide a means by which dialogue between Māori and the Crown can occur and a common frame of reference on which to base adjudication of disputes in a peaceful manner.
This Bill damages both existing avenues of peaceful resolution. While the Bill does not directly challenge the existence of the treaty settlement processes, it will inevitably destabilise those processes due to the overall damage to the Crown/Māori relationship inflicted by this Bill (whether or not it becomes law).
