Associate Justice Minister David Seymour has released the regulatory impact statement and corresponding cabinet paper for the Treaty Principles Bill. Photo: RNZ / REECE BAKER
The Ministry of Justice has warned the proposed Treaty Principles Bill isn't "grounded in the Treaty" and relies on a "novel reading" of the founding document that isn't supported by the "available evidence".
Advice provided to Cabinet on the proposed Treaty Principles Bill recommends the coalition continue the status quo - rather than redefining the principles.
Associate Justice Minister David Seymour has released the regulatory impact statement and corresponding cabinet paper for the Treaty Principles Bill.
The advice from Ministry of Justice officials and contributing agencies is that the bill would be damaging to Māori/Crown relations and hasn't met the standard of good faith engagement with Māori that is required under the Treaty.
Seymour has noted throughout the Cabinet paper his strong disagreement with officials, saying the six-month consultation during the select committee and the ongoing national conversation since 2022 provides ample opportunity for all New Zealanders to provide feedback.
The release of the advice comes after ministers discussed next steps for the legislation on Monday.
The bill is part of National's coalition agreement with ACT and provides support from the Coalition parties at first reading and through to select committee, which will be a six-month process.
Both National and New Zealand First have committed to not supporting the bill beyond that, and neither party is in favour of a referendum on the matter.
The impact statement shows justice officials aknowledge the bill could have "some value" but that the status quo would be "more beneficial".
It says the status quo would provide a higher degree of certainty in the legal system - and minimise any risk of damaging Māori-Crown relations.
In the Cabinet paper Seymour says the objective of the policy is for Parliament to "set out what the principles are to avoid the courts and the public service from venturing into areas of political or constitutional importance based on amorphous principles".
Seymour took his proposed principles to Cabinet on Monday, with the caveat that the "precise wording of the principles will be developed during the drafting process".
The principles as recommended by Seymour 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/te Tiriti. The Crown willrespect and protect those rights. Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they arespecified 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
Ministry of Justice officials pointed out in their advice that defining the principles of the Treaty in statute will be seen "by some as a removal of Māori rights guaranted under the Treaty and is likely to be the subject of public and legal challenge".
Seymour responded saying, "I note officials' concerns, however, I also note that their interpreation of the Treaty is precisely what the proposed bill seeks to address and clarify".
The issue of whether the bill would comply with international standards and obligations was also discussed in the cabinet paper.
Officials' view was the policy may result in "actions or outcomes that are seen to be discriminatory or inconsistent" with the International Convention on the Elimination of All Forms of Racial Discrimination and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).
On the latter Seymour noted the Coalition's position is that UNDRIP has "no binding legal effect on New Zealand".
Officials also raised concerns the policy doesn't recognise tino rangatiratanga or the distinct "political status of Māori as the indigenous people of Aotearoa New Zealand".
Seymour's view, however, as noted in the Cabinet paper, is the "notion that Māori should have a different political status to other New Zealanders is precisely what the proposed bill aims to address".
As part of the governmental consultation for Cabinet to consider, Te Arawhiti - the agency for Māori-Crown relations - provided its own comment that supported those views put forward by the Ministry of Justice.
It went on to note the 16 August Waitangi Tribunal interim report that recommended Act's policy should be abandoned.
Seymour's response to the agency was a scathing attack on its mandate.
"Te Arawhiti has ventured into areas of political and constitutional importance without the authority, the mandate, or the expertise to do so," Seymour said.
"Te Arawhiti has no democratic mandate and does not represent or speak for Māori - it is an agent of the Crown.
"Parliament introduced the concept of the Treaty principles into legislation, and it has a right to legislate to define what the principles mean, something Te Arawhiti fails to acknowledge."
The Parliamentary Counsel Office, which will be responsible for the drafting of the bill, also provided feedback. However, it was redacted in the Cabinet paper as their legal advice is usually confidential.
In the lead-up to taking his paper to Cabinet Seymour said he took onboard feedback about his proposed principle two and calls for hapū and iwi to be recognised.
To allay fears and concerns about property rights the wording was changed, with Seymour noting in the paper that it would acknowledge "the Crown has a duty to protect the rights of hapū and iwi Māori to the extent that is consistent with the rights of everyone".
Officials have advised principle two does not "accurately reflect Article 2, which affirms the continuing exercise of tino rangatiratanga".
A referendum and six-month select committee
Ministers have agreed to referendum provisions in the bill, and invited Seymour to carry out work on how a referendum would be progressed, subject to further approval from Cabinet in November.
That's despite both National and New Zealand First publicly saying they would not support a referendum on the bill.
Advice from the Ministry of Justice is that putting decision-making on the Treaty to the "wider public through a referendum brings a significant risk that the will of a non-Māori majority will impose on the minority partners (who are also most likely to be affected by the policy), and that this is likely to have a negative effect on social cohesion".
Officials said it was also "unlikely to represent a consensus".
Seymour hit back calling those comments "disappointing".
"It suggests that all people of a certain ethnicity think alike. This is the kind of thinking that the Treaty Principles Bill seeks to challenge."
Officials noted they expect the number of submissions during the six month select committee to be "high".
"Consequently, engaging with a third-party provider for submission analysis may be needed to meet the deadline for completion of this work laid out in this paper."
The bill is set to be introduced into Parliament on 18 November, with the first reading and referral to select committee on 21 November.
The select committee is scheduled to report back to Parliament in May next year.
Opposition responds to Seymour's bill
New Zealand First MP Shane Jones re-affirmed the party would not support the bill past its first reading.
Despite National and New Zealand First not supporting a referendum, ministers have still agreed to referendum provisions in the bill.
Jones said that was because the coalition agreement set out the parties would support the bill based on existing ACT policy, which included a referendum, and New Zealand First would abide by the agreement.
"Do not doubt the importance of the words we signed up to in the coalition agreement," he said.
"David Seymour, as I recall, in the run-up to the election spoke about a referendum. But having said that, irrespective or whether a referendum is or isn't in the bill, the party's position on the bill is very clear."
His leader and deputy prime minister, Winston Peters, said he's had the stance - that there are no Treaty Principles - his whole career, saying "I'm not going to change my mind now."
"That's my view and that's why we're not supporting the legislation."
When asked about the work being done on a referendum, Peters replied "How can you have a referendum when after the First Reading that's it?"
In response to questions around whether a referendum is a waste of time and money if the bill won't become law, Peters deferred them to the Minister in charge, David Seymour.
"Go and ask Mr Seymour, it's not my problem."
Te Pāti Māori co-leader Debbie Ngarewa-Packer said the entire process was a Trojan Horse for ACT's next election campaign.
"He's got a whole platform for the middle of next year, which will be their run-in to the next election period as well. And it's foul," she said.
"Of course this is an imporant conversation, but this government is not doing that properly.
"I think everyone's been really clear, that the Prime Minister could just ditch this bill today. It's incredibly divisive."
Green MP Teanau Tuiono says nobody wants the bill.
"Māori don't want this bill, I read one of the officials said it was a novel reading of the Treaty of Waitangi which I interpret as it's fictional. This is incredibly divisive and needs to be binned."
