Foreshore and seabed information   |   Indigenous Rights

Submissions on the Principles of the Treaty
of Waitangi Deletion Bill


Some submissions on the Bill

October 2006

Submissions on the Principles of the Treaty of Waitangi Deletion Bill are due on Friday, 20 October 2006. If however, you are still putting a submission together or still thinking about writing one, we have been advised by the Senior Parliamentary Officer, Office of the Clerk, that if you send a fax or email - with the information as outlined in the 'where to send your submission' section below - to reach the Clerk of the Justice and Electoral Committee on Friday, your more detailed submission can follow later.

There are four sections below: information about the Bill, some points you could include in a submission, where you can get more information, and where to send your submission.

* About the Bill

The Principles of the Treaty of Waitangi Deletion Bill is a Members Bill in NZ First MP Doug Woolerton's name; it was introduced to parliament on 29 June 2006, had its first reading on 27 July, and it currently being considered by the Justice and Electoral Committee - it is to be reported back to parliament by 25 January 2007.

The Bill (similar to a NZ First Bill voted out last year) was part of the Confidence and Supply Agreement between the Labour Party and NZ First which specified that a Bill 'to remove references to the principles of the Treaty from legislation' would be sent for consideration by a Select Committee.

It is entirely in keeping with the unfortunate and often expressed views of NZ First on the Treaty, as for example in Winston Peter's comment: "We in New Zealand First believe that we are one people and that we should live in one country under one set of rules. Our society cannot function if there is politically and legally sanctioned racial preferment for one group based on an outdated colonising document written by a naval officer in February 1840."[1]

And of course, last month Mr Peters extended his denial of the rights of Maori to a denial of the rights of all indigenous peoples when he appeared before the UN General Assembly [2] to present the government's deplorable position on the Declaration of the Rights of Indigenous Peoples.

Although Labour has said they will not support the Bill at the second reading, that 'promise' needs to be seen in the context of their approach to the Treaty and the rights of Maori in just the past couple of years - for example, the discriminatory foreshore and seabed legislation; the review of "race-based funding" and subsequent funding cuts; the lack of any reference to the Treaty in the draft education curriculum; the amendments to the Treaty of Waitangi Act currently proceeding through parliament as part of the omnibus Maori Purposes Bill, in which the government unilaterally imposed a deadline for the lodging of historical claims with the Waitangi Tribunal - a deadline opposed by the overwhelming majority of submissions on it, but which it seems will proceed regardless ... then of course there is the government's opposition to the rights of indigenous peoples globally as referred to above.

While we, and others who have contacted us about this Bill, are reluctant to support the principles of the Treaty - because the concept of 'principles' of the Treaty is analogous to a concept of 'principles' of human rights, that is to say, a weak substitute for the real thing; and they are essentially Crown defined and an inadequate representation of the relationship between tino rangatiratanga and kawanatanga in the Treaty - nevertheless, the Bill must be opposed because it is another attack on the Treaty and on Maori; and if it passes, it will essentially remove all references to the Treaty in legislation, however inadequate they may be in their wording and in the way they are applied.

The Bill is destructive in its intent, the explanatory note that introduces it is inflammatory and absurd, and its provisions are unworkable.

The explanatory note begins: "This Bill eliminates all references to the expressions "the principles of the Treaty", "the principles of the Treaty of Waitangi", and the "Treaty of Waitangi and its principles" from all New Zealand Statutes including all Preambles, interpretations, schedules, regulations and other provisos included in or arising from each and every such statute." [3]

It then goes on to say: "The Bill seeks to correct an anomaly which has harmed race relations in New Zealand since 1986 when the vague term "the principles of the Treaty of Waitangi" was included in legislation" and deteriorates from there.

The failure of successive governments to honour the Treaty is not included in the explanatory note as something that has "harmed race relations" ...

* Some points you could include in a submission

The first and most crucial point is that the Treaty is about constitutional and political power, not race.

Secondly, there has been no consultation with hapu and iwi about this Bill, let alone negotiation, which is of course the expected way that parties to a Treaty should relate to each other.

Ironically, the duty to consult, and at an early stage, is one of the principles of the Treaty as defined by the Courts and the Waitangi Tribunal [4] - a point that illustrates the inaccuracy of the assertion in the Bill that the "principles remain largely undefined and ambiguous".

Beyond consultation is the informed consent referred to in the developing international norms and standards relating to the protection of indigenous peoples' rights. The Committee for the Elimination of Racial Discrimination, the UN Treaty body that monitors compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (ratified by NZ in 1972), in their General Recommendation No. 23 called on governments to: "Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent". [5]

The Declaration on the Rights of Indigenous Peoples, adopted by the UN Human Rights Council on 29 June 2006, has a number of references to "free, prior and informed consent"; of most relevance to this Bill is Article 19: "States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them." [6] Effectively writing the Treaty out of legislation is clearly something that will affect Maori.

Thirdly, it is difficult to measure the far-reaching impact this Bill would have if it were to proceed.

It would remove the jurisdiction of the Waitangi Tribunal, the whole purpose of which is linked to principles of the Treaty, as illustrated in the Title: "An Act to provide for the observance, and confirmation, of the principles of the Treaty of Waitangi by establishing a Tribunal to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty." [7] Similarly the Preamble refers to the principles of the Treaty, as does Section 6. 'Jurisdiction of Tribunal to consider claims', 8. 'Jurisdiction of Tribunal to consider proposed legislation', 8A. 'Recommendations in respect of land transferred to or vested in State enterprise', and 8HB. 'Recommendations of Tribunal in respect of Crown forest land'.

It would affect the settlements that have already been confirmed by Acts of Parliament - Ngati Tama Claims Settlement Act 2003, Ngati Turangitukua Claims Settlement Act 1999, and the Ngai Tahu Claims Settlement Act 1998 to name just three that are included in Section 4. 'Repeals and revocations' of the Bill.

Fourthly, you could if you wish go through the unfounded assertions in the explanatory note of the Bill, and challenge each; and include your views on how the Bill itself may be harmful to "race relations".

* Where you can get more information

For links to information referred to above, see the references section below.

The text of the Bill, with the explanatory note, is available at http://www.knowledge-basket.co.nz/gpprint/docs/bills/20060661.txt; other Acts referred to in the Bill are available at http://www.knowledge-basket.co.nz/gpacts.

Te Ururoa Flavell's speech during the first reading of the Bill is at http://www.scoop.co.nz/stories/PA0607/S00460.htm, Metiria Turei's speech is at http://www.greens.org.nz/searchdocs/speech10232.html, see also Nandor Tanczos' speech during the first reading of the 2005 version of the Bill at http://www.greens.org.nz/searchdocs/speech8778.html.

All of the speeches during the first reading, labeled with the Hansard reference number rather than the speaker, are at http://www.vdig.net/hansard/archive.jsp?y=2006&m=07&d=26; some Questions and Answers on the Bill are at http://www.hansard.parliament.govt.nz/Documents/20060725.htm.

'Self-determination - it takes two', a recent speech by Pita Sharples on tino rangatiratanga is at http://www.maoriparty.com/index.php?option=com_content&task=view&id=602&Itemid=28.

For a local authority perspective on the Bill, see the Agenda, Waitakere City Council meeting, 18 October 2006 (from p9) at http://www.waitakere.govt.nz/abtcnl/ct/pdf/council2006/181006ag.pdf.

A media release from the CTU on the Bill is at http://www.union.org.nz/news/672.html.

* Where to send your submission

The deadline for submissions on the Principles of the Treaty of Waitangi Deletion Bill is Friday, 20 October. If however, you are not unable to get yours in on time, then fax or email the Secretariat, see contact details below - provide your name, organisation if relevant, and contact details; state that you will be making a submission, and indicate whether or not you wish to appear to appear before the committee (if you do wish to appear, give a contact name and phone number); then send the detailed content of your submission to the Secretariat as soon as possible as a supplementary submission.

Submissions to select committees generally become public, so it is best to contact the Secretariat before sending information of a private or personal nature.

By post - send two copies of your submission to Justice and Electoral Committee Secretariat, Bowen House, Parliament Buildings, Wellington; by fax to (04) 499 0486 or by email.

Information on making a submission to a Select Committee is available at http://www.parliament.govt.nz/en-NZ/HvYrSay/Submission/a/9/8/a984338c3a574fcbb2adafa93aadd14f.htm

* References

[1] 'Clark v Canute - the Foreshore and Seabed Case', Winston Peters, 10 August 2003

[2] http://www.mfat.govt.nz/Media-and-publications/Media/MFAT-speeches/0-22-September-2006.php - for more information about the government's position on the Declaration, see http://www.converge.org.nz/pma/indig.htm#hrcnz06

[3] The text of the Bill, with the explanatory note, is at http://www.knowledge-basket.co.nz/gpprint/docs/bills/20060661.txt

[4] See for example 'He Tirohanga o Kawa ki te Tiriti o Waitangi: a guide to the principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal', Te Puni Kokiri, 2001 at http://www.tpk.govt.nz/publications/subject/default.asp#gov [under the 'Government and Maori heading' if the internal page link doesn't work] or the shorter 'What are the principles of the Treaty of Waitangi? What should the law do about them? Chapman Tripp, 5 May 2005 at http://www.chapmantripp.co.nz/resource_library/published_article.asp?id=4175 [prepared when the similar Bill was introduced last year]

[5] CERD General Recommendation No. 23: Indigenous Peoples, 4(d) at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/73984290dfea022b802565160056fe1c?Opendocument - General Recommendations elaborate the responsibilities of state parties' to the Convention

[6] Declaration on the Rights of Indigenous Peoples at http://www.converge.org.nz/pma/drip.pdf

[7] Treaty of Waitangi Act 1975 (Reprint as at 17 February 2006) is at http://rangi.knowledge-basket.co.nz/gpacts/reprint/text/2006/an/001.html


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