Treaty Principles Bill Select Committee presentation

Te Rūnanga o Ngāi Tahu Oral Submission to Justice Select Committee – Principles of the Treaty of Waitangi Bill – 17 February 2025

Transcript

[Justin Tipa]

I begin with an extract from the English translation of the Crown’s formal apology to Ngāi Tahu, located in section 6 of the Ngāi Tahu Claims Settlement Act 1998:

The Crown apologises to Ngāi Tahu for its past failures to acknowledge Ngāi Tahu rangatiratanga and mana over the South Island lands within its boundaries, and, in fulfillment of its Treaty obligations, the Crown recognizes Ngāi Tahu as the tāngata whenua of, and as holding rangatiratanga within, the Takiwā of Ngāi Tahu Whānui.’

That apology, and the bundle of legislation that makes up the Ngāi Tahu Claims Settlement, was made possible by three key things:

• Number one, Parliament in 1975 establishing the Waitangi Tribunal.
• Number two, Parliament in 1985 granting the Waitangi Tribunal retrospective powers of enquiry back to 6 February 1840.
• And number three, the Court of Appeal in 1987, during the famous Lands case, giving careful and considered form to Parliament’s notion of the “principles of the Treaty of Waitangi”.

Those developments—which have earned bipartisan support—have enhanced equality of opportunity in this nation.

Those developments have enhanced the sanctity of property rights in this nation.

Those developments have enhanced the rule of law in this nation.

We are all better because of them.

And yet the Principles of the Treaty of Waitangi Bill proposes to do away with it all. It says that this careful legislative and judicial evolution exists for no good reason.

And even worse, this Bill attempts to do that behind a smokescreen of rhetoric framed in fairness and equality.

This is an old and tired game we thought had been consigned to history.

The view of Te Rūnanga o Ngāi Tahu is that this Bill is nothing more than an attempt to antagonise and exploit the “tyranny of the majority”.

That is the worst kind of politics, and this Bill would make the worst kind of law.

The Bill is at best disingenuous, and at worst dishonest. It claims to uphold historical Treaty settlements—via its Principle 2—while simultaneously dismantling the very framework that made those settlements possible in the first place.

Treaty settlement legislation is not, as the Bill implies, self-contained. The Ngāi Tahu Claims Settlement Act is shaped by a raft of other legislation – as well as settled understandings of that additional legislation.

One example is the Conservation Act 1987, section 4 of which obliges the Department of Conservation to give effect to the principles of the Treaty. This is particularly important to Ngāi Tahu given that 10 out of New Zealand’s 13 National Parks occur in Te Waipounamu.

Narrowing the meaning of section 4, as this Bill attempts to do, would therefore undermine the foundations and value of our historical Treaty settlement – and threaten its durability.

Ngāi Tahu agreed in 1998 that our Treaty settlement would be full and final. This Bill, promoted by a minority of those temporarily occupying the Treasury benches, puts it at risk.

This Bill, if passed into law as it stands, will re-open the historical grievances that the Ngāi Tahu Claims Settlement Act – and the Crown’s formal apology – rectified and laid to rest.

I want to also point out that not all rights and interests of iwi and hapū are located within historical Treaty settlements. Within Ngāi Tahu, to give just two examples, there are the Beneficial Tītī Islands and seasonal muttonbird harvest, and various arrangements connected with lands allocated under the South Island Landless Natives Act 1906.

These examples are further evidence that this Bill is ideologically blinkered, historically ignorant, and administratively blunt.

It would create many more problems than it claims to solve.

I’ll now handover to my whanaunga, Mike Stevens, the Awarua Representative to Te Rūnanga o Ngāi Tahu, to elaborate further.

[Michael Stevens]

I likewise draw the committee’s attention to the Crown’s formal apology to Ngāi Tahu. I quote:

The Crown recognises that Ngāi Tahu has been consistently loyal to the Crown, and that the tribe has honoured its obligations and responsibilities under the Treaty of Waitangi and duties as citizens of the nation, especially, but not exclusively, in their active service in all of the major conflicts up to the present time to which New Zealand has sent troops. The Crown pays tribute to Ngāi Tahu loyalty and to the contribution made by the tribe to the nation.

This passage acknowledges Ngāi Tahu individuals and whānau who served in the armed forces, especially during World War Two, due to the particularly high price we paid on land and sea, and in the air, as well as on the home front.

Those sacrifices were made in accordance with the logic Tā Āpirana Ngata made clear in his 1943 publication The Price of Citizenship. Ngata believed that supporting the war effort was the ultimate way by which Māori could

• honour the Treaty of Waitangi
• gain respect of Pākehā, and
• expect better social and economic opportunities in postwar New Zealand

Ngata famously asked, “whether the civilians of New Zealand…realised the implications of the joint participation of Pākehā and Māori in this last demonstration of the highest citizenship?”

The answer to his question, which was by and large, no, came in October 1944 during a hui convened here in Wellington by Ngāi Tahu parliamentarian Tā Eruera Tirikatene.

One of the keynote requests of that hui was for “the establishment of an independent tribunal to investigate and then resolve…[Māori] claims”.

Our Taua and Pōua – our grandparents and great-grandparents who belonged to the Greatest Generation – thus understood the establishment of the Waitangi Tribunal in 1975 and the subsequent extension of its remit a decade later, as belated recognition of wartime sacrifices, especially by those who never came home.

The framers and supporters of this Bill are either ignorant or indifferent towards that sacred backdrop. But the Justice Committee should not be.

As our Kaiwhakahaere has just explained, those two legislative developments led directly to the Lands case in 1987 which delivered two key things in turn:

• First, a politically-negotiated outcome paving the way for historical Treaty settlements by ringfencing Crown-owned property, in the era of mass privatisation, and
• Secondly, thoughtful ruminations from mainly conservative judges as to the meaning of the principles of the Treaty of Waitangi, which have enhanced the nation’s democratic processes and outcomes.

We agree with our Upoko, Tā Tipene O’Regan, that the partnership aspect of the Lands case has been misconstrued, by Māori and Pākehā alike. In so doing, the Court of Appeal’s finding that the Crown owes iwi and hapū a duty of “active protection” has become somewhat lost – in turn obscuring the inherent power asymmetries between iwi and hapū and the Crown.

All of which brings us, somewhat full-circle, to the Reverend Montague Hawtrey – an Anglican pastor and neighbour to Edward Gibbon Wakefield, he of the New Zealand Company.

Reflecting on the nascent New Zealand colony in 1840, Hawtrey wrote that unless parties have “the same power in the field”, nominal equality will not lead to actual equality. Instead, “[w]here one of two parties was unsophisticated in the forms of Western civilization, the only consequence of establishing the same rights and the same obligations for both will be to destroy the weaker under a show of justice.”

The Principles of the Treaty of Waitangi Bill looks to revive this tradition that Hawtrey argued against. This was ugly enough in the nineteenth century, and has no useful place in a modern, liberal, pluralist, twenty-first century democracy. 

[Justin Tipa]

The first 150 years of Crown rule in New Zealand is a story by which iwi and hapū were bound ever tighter to the rule of law, while the rights and interests of iwi and hapū were barely protected by the rule of law. Certainly, that is the story of Ngāi Tahu.

But the 1980s and 1990s offered a new way of thinking, one which made amends for the past and looked towards a more inclusive and equitable future. Key to that was the legislative development and judicial evolution of the principles of the Treaty of Waitangi.

None of that puts these matters beyond question. New Zealanders can and should debate the application of the Treaty principles in our legal system.

But reasonable and decent New Zealanders should cherish and protect the principles themselves.

Reasonable and decent New Zealanders should reject this Bill.

That is our position.