The three principles to be included in Act leader David Seymour’s Treaty Principles Bill have been agreed on by Cabinet. 

A tranche of Government documents, including analysis from Ministry of Justice officials, was also released today. 

They include principles of “Civil Government”, the “Rights of Hapū and Iwi Māori” and the “Right to Equality”. 

Seymour says his bill is about defining the Treaty principles in legislation to establish “that every person is equal before the law”. 

But critics of the bill say it is discriminatory, divisive, unfair, a threat to the Māori-Crown relationship, and a solution to a problem that does not exist. 

The three principles Cabinet has agreed on to include in the bill are: 

- Civil Government: The Government of New Zealand has full power to govern, and Parliament has full power to make laws. They do so in the best interests of everyone, and in accordance with the rule of law and the maintenance of a free and democratic society. 

- Rights of Hapū and Iwi Māori: The Crown recognises the rights that hapū and iwi had when they signed the Treaty. The Crown will respect and protect those rights. Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreement with the Crown. 

- Right to Equality: Everyone is equal before the law and is entitled to the equal protection and equal benefit of the law without discrimination. Everyone is entitled to the equal enjoyment of the same fundamental human rights without discrimination. 

Seymour, who is Associate Justice Minister, says the bill is currently being drafted. This draft is expected to be released publicly in November before it goes to select committee for six months. 

The proposal was negotiated as part of the coalition Government’s agreement. Seymour’s coalition partners, National and NZ First, have already said that they will not support the bill past a first reading, a stance that was reiterated at the late Kīngi Tūheitia’s 18th coronation celebrations at Tūrangawaewae. 

In a statement, Seymour said Parliament had introduced the concept of the Treaty principles into legislation in 1975 but had not defined them. 

“As a result, the courts, the Waitangi Tribunal, and the public service have developed a set of principles to justify actions that many New Zealanders view as contrary to the principle of equal rights, including co-governance in the delivery of public services and even ethnic quotas within public institutions.” 

Seymour claimed the principles of the Treaty were “not going anywhere”. 

“The purpose of the Treaty Principles Bill is for Parliament to define the principles of the Treaty, provide certainty and clarity, and promote a national conversation about their place in our constitutional arrangements.” 

A timeline laid out in a Cabinet paper released today shows the bill being introduced into the House on November 18, followed by its first reading on November 21. 

It would then sit with a select committee for six months, with MPs reporting back on it in the week ending May 16. 

In the Cabinet paper, it was noted that if the committee received an “extraordinarily large” number of submissions, the Parliamentary process could be delayed. 

“This approach assumes that engagement and analysis of feedback during select committee can be completed according to the indicated timeframe.” 

Officials recommending sticking with status quo 

The Regulatory Impact Statement issued alongside Seymour’s statement considered both the status quo as it functions now – and defining the principles in legislation, as Seymour has proposed. 

The impact statement said that while the bill “could have some value”, officials believed the “status quo is more beneficial”. 

“Under this option, the courts and the Waitangi Tribunal would continue to articulate the meaning of the Treaty principles in line with the existing legislation and practice. This option would uphold Treaty obligations to the same extent as they are now.” 

The analysis was finalised in late August when the final content of the principles had yet to be determined. 

“However, their description in the policy proposal is inconsistent with the Treaty/te Tiriti. It does not accurately reflect Article 2, which affirms the continuing exercise of tino rangatiratanga. Restricting the rights of hapū and iwi to those specified in legislation, or agreement with the Crown, implies that tino rangatiratanga is derived from kāwanatanga. It reduces indigenous rights to a set of ordinary rights that could be exercised by any group of citizens.” 

It said that an interpretation of Article 2 that didn’t recognise the collective rights of iwi and hapū, “or the distinct status of Māori as the indigenous people of Aotearoa New Zealand, calls into question the very purpose of the Treaty and its status in our constitutional arrangements”. 

In contrast, the officials found the status quo provided a “higher degree of certainty about what the Treaty principles are and how they operate in New Zealand law”. 

“The existing principles have been developed over years of jurisprudence and by the actions of successive governments. Defining the principles of the Treaty/te Tiriti in legislation might provide a level of clarity about the intent of Parliament when it refers to the principles, but it could also introduce more uncertainty into our constitutional arrangements because it would unsettle the established jurisprudence about the effect of the principles.” 

Retaining the status quo would also “minimise the risk of damaging Māori-Crown relations” as the proposed legislation “could be seen as attempt to limit the rights and obligations created by the Treaty”. 

“This would present a significant risk to the Māori-Crown relationship and could have flow-on effects into other parts of the relationship. We note that neither the status quo, nor the proposed bill, will address broader questions about how the Treaty/te Tiriti shapes our constitutional arrangements. 

“However, the status quo preserves space for future engagement with iwi and hapū as the Crown’s Treaty partner about our constitutional arrangements in a process that prioritises public engagement, social cohesion, transparency, and the legitimacy of the outcome.” 

Lack of consultation with Māori 

Officials warned that while it “might be possible” to develop principles that aligned with both established law and the “spirit and intent” of Te Tiriti, it was also “likely to raise significant disagreement about its consistency” with it. The bill could also displace case law about how principles should be applied. 

A lack of consultation with Māori on policy development - the bill will still receive public submissions during the select committee process - “is likely to leave Māori feeling alienated and excluded from meaningful participation in the direction of Aotearoa New Zealand’s constitutional arrangements”. 

“The Crown changing its understanding of the principles, without engaging in a broader discussion, could undermine confidence in our constitutional arrangements.” 

A Cabinet paper from Seymour showed he wanted the principles to “assist with the interpretation” of any other legislation where principles of the Treaty would “normally be considered relevant”. 

This doesn’t mean the legislation being interpreted would need to explicitly refer to Treaty principles. Seymour also wanted the proposed bill to make it clear it was “not intended to alter the text of the Treaty itself or change any Treaty settlements”. 

“This may reassure those who are concerned the Crown is attempting to amend or ‘repeal’ the Treaty. It makes it clear that the bill is an instrument of Parliament created for the purpose of interpreting its intent when it passes legislation. This will also preserve space for an ongoing national conversation around the place of the Treaty in our constitutional arrangements.” 

In the Cabinet paper, Seymour said that to ensure existing Treaty settlements were upheld, there would need to be further work during the bill’s drafting process “to understand the bill’s full impact”, including on ongoing or future settlement negotiations. 

“This includes consideration of whether defining the principles in statute will introduce uncertainty in existing legal regimes (such as resource management) and impacts on the implementation of settlements.” 

The paper said officials would identify options to mitigate any risks, for example including a provision in the bill “that would ensure existing rights and obligations” weren’t affected. 

Julia Gabel is a Wellington-based political reporter. She joined the Herald in 2020 and has most recently focused on data journalism.