References to Tiriti o Waitangi/Treaty of Waitangi (Strength of Legislative Obligations) Amendment Bill

on behalf of the Minister of Justice: I move, That the References to Tiriti o Waitangi/Treaty of Waitangi (Strength of Legislative Obligations) Amendment Bill be now read a first time. I nominate the Justice Committee to consider the bill.

💬 SPEAKER: Do you have a legislative statement to present?

No, Mr Speaker. I’m pleased to introduce the References to Tiriti o Waitangi/Treaty of Waitangi (Strength of Legislative Obligations) Amendment Bill to the House today. This bill will improve consistency and certainty—

💬 SPEAKER: I’m sorry. You can move the bill, but you are obliged to present to the House a legislative statement on the bill.

💬 Hon Member: She’s not obliged to do it.

💬 SPEAKER: Not obliged to do it?

No, Mr Speaker.

💬 SPEAKER: OK, well, I just was trying to avoid a massive number of points of order, but I’m pleased we’ve got that clarified. The member will continue with her speech.

I’m pleased to introduce the References to Tiriti o Waitangi/Treaty of Waitangi (Strength of Legislative Obligations) Amendment Bill to the House today. This bill will improve consistency and certainty about how certain operative Treaty provisions apply in legislation. The bill gives effect to the Government’s review of references to the principles in legislation over time.

Over time, Parliament has used different formulations for operative Treaty provisions. In some cases, those differences can make it unclear whether a different legal effect was intended. The bill amends four operative Treaty provisions across four Acts to provide a consistent level of direction. Existing provisions use different standards including “uphold” and “honour”, which the Government considers do not always promote the balanced consideration of all relevant factors in decision making. The bill therefore amends those provisions so that the relevant decision-makers must take into account the Treaty principles. This is intended to support clearer and more consistent statutory decision-making, while still requiring decision makers to consider Treaty principles where they are relevant to the statutory decision.

The Government’s view is that this bill strikes the right balance, recognising that the Treaty interests may be relevant in particular contexts while improving certainty about what the affected provisions require in practice. The select committee process will provide an opportunity for everyone to test the detail of these proposals and for the committee to hear a range of views. I expect the committee will carefully consider both the submissions it receives and the detail of the bill.

The bill is about improving the clarity, consistency, and workability of operative Treaty provisions in legislation. A clear statute book helps people understand what the law requires and supports more consistent decision-making across Government. As I’ve said before, this bill is about delivering on the core New Zealand First - National coalition agreement, in which it was agreed to conduct a comprehensive review of all legislation. This bill codifies operative provisions across four public service Acts. New Zealand First supports the bill as a step forward in replacing open-ended obligations with workable standards that provide clear, objective legal direction.

As we’ve referred to many great leaders in this House, we would also like to honour Sir Apirana Ngata and Dame Whina Cooper. [Interruption] When we use these names, we are greeted with derision, when, actually, they deserve a lot more respect than that. We respect the Treaty as the foundation that formed one united nation—not a tool for ongoing division. We need better as Government, and New Zealand needs better for its people. We have heard repeatedly in this House this afternoon the challenges around what is actually being delivered, the outcomes that we are achieving, and that we need to do better. Doing better requires us to look at all the levers that we have as a Government to ensure we achieve those better outcomes.

Delivering for those with the greatest need is not about protecting guilt politics. That just drives us into stagnation. We need to drive prosperity, free up potential, and encourage accountability and personal responsibility. We can and will do better, and this piece of legislation will achieve us moving forward together. We commend the bill to the House.

Thank you, Mr Speaker. There’s a certain amount of irony in what that previous speaker, the Hon Casey Costello, said in terms of not wanting to use the Treaty or te Tiriti as a tool of division, because this is exactly what this Government is doing with these bills. No one wanted these apart from this Government. There was no call. No one’s walking down the street saying, “I’m so annoyed I don’t have clarity between 20 different statutes on what the Treaty provisions are.” This is not something that anyone is saying. In fact, they’re saying the opposite.

Your very officials—this Government’s officials in the Ministry of Justice—are saying that this will do harm and this will cause division. That is the official advice. These bills cause division and damage the Māori-Crown relationship. This Government’s choices are damaging the Māori-Crown relationship. The Treaty / te Tiriti is being used to cause division, and this Government is doing so knowingly—because it is in the advice. The irony is astounding.

Now, this is my last is my last call on these three bills, and they’re not long—only five minutes—so I want to take the opportunity to acknowledge Ngāti Kahungunu, who came to Parliament and brought a petition of 50,000 New Zealanders opposed to what this Government is doing here. This is not something that those people who took the time to come to Parliament wanted. Can I commend them for coming here and having their voice heard, and can I also commend the Waitangi Tribunal, who spent hours and hours and hours putting together detailed analysis as to why not only should the Government not go through with this legislation but the fact that this legislation goes directly against Te Tiriti and should be the opposite of what the Government’s doing; and a plea for the engagement of te ao Māori, which has been ignored by this Government. Shame on the Government. Te ao Māori has come to this House peacefully, respectfully, and to the Waitangi Tribunal, and has done nothing but provide reasons in a very, very measured way—an admirably measured way—as to why this shouldn’t have proceed. It is shameful that their articulate calls for constraint have been ignored. Silence is deafening.

These bills weaken Treaty provisions, and we’ve heard from several speakers that this is because we want consistency. Well, here’s an idea: why not have consistently better provisions, or consistently higher regard to Te Tiriti? There is no need for the Government, if their objective was consistency, to look to ride down the provisions of Te Tiriti, and that is exactly what they’ve done. There is no one in their right mind—and this is from the bill we’re considering now—who can look at the amendments to the Education and Training Act 2020, which currently states “honours Te Tiriti o Waitangi” and will be changed by this bill to “takes into account Te Tiriti o Waitangi/Treaty of Waitangi.”—that is a shameful weakening of the provisions, and it has not gone without notice.

The Treaty of Waitangi/Te Tiriti o Waitangi is a document of immense constitutional importance and also of immense mana. Bringing bills like this to the House

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stamps on the mana of the Treaty, and it is very, very confusing as to what the exact objection to this is. What are they scared of? What is the Government scared of?

I want to briefly touch on the recommendations of the Waitangi Tribunal, and I may not have time to go through all of them. The Waitangi Tribunal has recommended that the Crown immediately pause these reforms. The Waitangi Tribunal has recommended that the Crown do not progress any of the proposed amendments; the Waitangi Tribunal has recommended that they do not repeal any Treaty provisions; and the Waitangi Tribunal has recommended that, if the Crown disregards what they suggest and goes ahead with it, it has a full select committee process. Well, we’re here in the dying days of this Government, and it will be referred to a select committee that will no longer exist. Not only have they ignored all of the recommendations of the Waitangi Tribunal, but they have also ignored the call for a substantive select committee process, which will, by its nature, be a lot shorter as a result of the timing of these horrendous bills that weaken Te Tiriti o Waitangi in this country.

Kia ora, Mr Speaker. When we give an oath on becoming New Zealand members of Parliament, we may swear on a document of significance to us. Many of my Green colleagues and myself swore on this facsimile of Te Tiriti o Waitangi, which is part of the Parliamentary Library collection. I advise every member to have a look at it. It’s a magnificent volume, because it has foldout copies of all of the handwritten duplicates of Te Tiriti that were taken around the country from 6 February for the eight months that Hobson and others carried them. It includes each in te reo and each of the signatures of the 540 rangatira who signed them.

By good fortune this was facsimiled and published in 1877, which means the copy of the 6 February Treaty of Waitangi contained in it is not the one that was left to moulder in a Wellington basement and be gnawed by rats at the beginning of the 20th century. It is the intact version of Te Tiriti o Waitangi, not that familiar ragged-edge document that we know now.

When Hobson—and his accounts are in this—took the Treaty around, he used that word

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He meant that the unity is achieved by upholding the sovereignty of Māori, not by denying that sovereignty and not by diminishing it. Te Tiriti is about power with, not power over, and that is the difference in the interpretation that this Government takes. The reason that they are scared of Te Tiriti and seek to diminish it and weaken it is because they know in its truest sense that, in any legal and constitutional basis, it means “power with”, not “power over”.

This Government has a desiccated view of society. It has an emaciated view of nationhood. For its whole term, it has gnawed at the foundation of our cohesion and our unity, like rats in a basement. Their epitaph will be

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There is no version of us thriving as a nation that is not based on the immemorial human truth of mutual respect. These bills are a dirty dogwhistle to spiteful political instincts. They, sadly, view humanity in a way that is designed to divide, not to bring together and not to unify. There’s an interesting side conversation going on there.

💬 SPEAKER: Those conversations stop. We’ll extend Mr Abel by a minute if he wishes.

Thank you, Mr Speaker. I’d appreciate that.

💬 SPEAKER: Because he’s got content, and it deserves to be heard.

Thank you, Mr Speaker. These extinguishments and diminishments of the Treaty—no good can come from them, for us as a society or for us as a nation.

As the world sadly lurches towards more divisive politics, our New Zealand holds together by the extent of our commitment to one another. I believe the nastiness embodied in these bills will fail, because Te Tiriti unity is an irresistible proposition. It affirms that immemorial truth that first in mutual respect—and, through that, to mutual benefit—we find the pathway to our nation’s thriving, bound by our dedication to one another in genuine respect. That respect is expressed by honouring the Treaty in its deepest intent and meaning; by giving effect to Te Tiriti in all our laws and actions. We will and already have committed that we will repeal these pieces of legislation—all three of them—and we will strengthen the clauses in law to at least “give effect” to Te Tiriti o Waitangi. That means tino rangatiratanga and nothing less.

I believe that the people of New Zealand—and as was expressed by the 70,000 strong who appeared at this Parliament at the first iteration that the ACT Party member spoke about, the Treaty principles bill. Well, this is sadly a lesser attempt at the Treaty principles bill 2.0, and I believe the people of New Zealand will express their views on the extent to which this sort of anti-Treaty, anti-Māori legislation has divided us as a nation over this term—it has sadly characterised this Government—and they will issue a move-on order to this Government for the good of our nation on 7 November. Thank you, Mr Speaker.

ACT believes New Zealand should be a modern, multiethnic, liberal democracy where every citizen has the potential to live their best lives and has the same political rights and standing before the law. “One law for all, one future together”—that is the principle ACT brings to debates about the Treaty, the constitution, and the relationship between New Zealanders and the State. The member Rawiri Waititi made the point that I had already made that point this afternoon in the House. Mr Waititi, if you didn’t realise, ACT has been consistent on these matters for decades, so I’m glad you’re catching up now.

ACT has consistently fought for equal rights for New Zealanders regardless of race, ancestry, what year their grandparents arrived here, whether it was by sailing waka, steamship, or aeroplane—even when that has meant standing alone on the forecourt in front of the so-called 70,000 to hear them, or alone in Parliament.

ACT is happy to support these bills because they provide greater clarity and consistency around Treaty-related provisions in legislation. The strength of legislative obligations bill replaces differing standards such as “honour” or “uphold” and makes sure we are acting consistently as a Government, as the Crown, when it comes to delivering on our obligations to Māori. It is far more sensible, and far more practical, to adopt a standard drafting terminology when it comes to making sure the Crown’s obligations under the Treaty of Waitangi are established in law. That will make it much easier for judges to interpret the law.

Now, I want to acknowledge the member Steve Abel’s graciously pointing out that ACT’s Treaty principles bill would have gone further. It was a better solution, and we do not walk away from the principle behind it. We will continue to be the consistent voice for equal rights. These bills are more limited than what ACT has proposed, but they are good steps towards clearer and more consistent legislation. We’re happy to support them—while we will always make the case “one law for all, one future together”. Thank you, Mr Speaker.

The objective of this bill is to ensure consistency in the strength of the direction in the operative Treaty provisions. Therefore, I commend it to the House.

Thank you, Mr Speaker. I just want to take a moment to speak to our people watching today. This is what we can expect if these guys get another term in Government—a constant attack, not just on Te Tiriti o Waitangi, not just on te iwi Māori, but also on tangata Tiriti, who value Te Tiriti of Waitangi, who value its place, who value their place in an Aotearoa that was built for everyone, and it was built for everyone based on Te Tiriti o Waitangi, not these pretend laws that come in and out every three years. I’ll tell you what, just like the Greens, we will repeal these three bills as well. They won’t even get past second reading; I’ll tell you that right now.

For 180 years—I just want you to contemplate this; for 180 years—Māori have explained Te Tiriti to the Crown. There are only three articles—three: kāwanatanga, tino rangatiratanga, and mana taurite. It is not a long document; it is not a written pou. It does not require a doctorate to understand. Yet here we are watching another generation of right-wing politicians scratch their heads and pretend that three simple articles are beyond their intellectual reach, after 180 years—[Interruption] Listen—listen, sunset—you might learn something if you just take a moment to listen. After 180 years, there are only two conclusions left for us to draw: either they are too thick to understand Te Tiriti or they understand it perfectly well and are evil enough to deliberately dishonour it. Those are the choices: evil or dumb, intellectual failure or moral corruption. Choose your poison, because ignorance is no longer a credible excuse.

This Government knows that Māori never ceded sovereignty. It knows that tino rangatiratanga was guaranteed to our people. It knows that the Crown promised to protect our rights, not rewrite them whenever Māori power becomes inconvenient. They know. This legislation is not the product of confusion; it is the product of calculation. They are manufacturing doubt where none exists. They are dressing confiscation up as equality. They are taking the dishonesty of colonisation and laundering it through Parliament. They want us to believe this is an intellectual debate. It is not. This issue is not whether the Government can understand Te Tiriti; the issue is whether it possesses the moral character to honour it. Either they are thick or they are evil, and frankly, this legislation leaves very little room for doubt about which one it is.

Āperahama Taonui, the prophet from the North, talked about a monster coming, a beast—a beast coming, and his teeth will be of silver and gold and his food will be the consumption of our land. We are in the belly of the beast now, as we watch the beast devour more of our whenua, more of our rights, more of our tino rangatiratanga promised to us in Te Tiriti o Waitangi. Revelation 16: “Then I saw three unclean spirits that looked like frogs. They were coming out of the mouth of the dragon, the mouth of the beast, and the mouth of the false prophet. They are the spirits of demons that perform miracles. Then the spirits bought the kings together in a place called Armageddon.” And here we are, the Armageddon of this particular Government. This will be your last stand; this will be your last day.

My message to our people out there: we need to send the message and ensure that we do not get another Government like this, who has consistently over the last three years tried to eliminate us from the statute book, eliminate us from the law; they have attacked Te Tiriti o Waitangi, have attacked the mana of our wāhine, have attacked the mana of takatāpui whānau and our mahi whānau. Those are all protected in Te Tiriti o Waitangi—all of those things—e hika mā. We must act. We must turn out on 7 November and make sure that this is a one-term Government. Kia ora tātou.

Thank you very much, Mr Speaker. I rise, in privilege, to commend this bill to the House.

Thank you, Mr Speaker. Ngā mihi o te Wiki o te Reo Māori. It is Māori Language Week. The history of Māori Language Week dates back to some of these decades that we have been talking about today, about decades of Māori activists, alongside all New Zealanders, fighting for the recognition and the celebration of not only te reo Māori but of te ao Māori itself and of our constitutional place, guaranteed by Te Tiriti o Waitangi in Aotearoa New Zealand. It is a cynical time to be discussing three bills which take a significant step backwards in New Zealand’s history.

The member before me asked Government members whether they were merely ignorant of the political history that has gone alongside that or whether they were deliberately and evilly taking measures to step that back. That is a fair enough question, and it most-deeply unpopular with most New Zealanders. This is about our political history, which has been hard fought for by members of the public, by people we recognise as leaders in Aotearoa’s history, and by members in this House, on both sides of it. A wilful ignorance of New Zealand’s political history ends us in a place where we follow those democracies that we look to around the world, that we would usually compare ourselves to, which are looking less and less like functional democracies and more and more like the kinds of places where people cannot have a say and where ordinary people lose faith in their democratic institutions because they’ve turned away from what ordinary people think and have moved further and further towards the extremes of politics, be that the alt-right—or the alt-left, in some cases.

This is a mistake, and this brings our politics into a place that we haven’t been in for many, many decades, where we would use small groups of New Zealanders to demonise and to weaponise in our political discourse. This is not mainstream politics in New Zealand, and I hope most New Zealanders will reject it.

This is a debate about the constitutional role of Te Tiriti o Waitangi. The parliamentary undersecretary, moments ago, shouted across the House today that a piece of paper doesn’t have mana. The Treaty does have mana, and I think most New Zealanders believe that. The Crown has mana. The honour of the Crown is what is at stake in this debate. The honour of the Crown depends on whether the Crown can keep the promises that it made in 1840 and beyond that. That has been reflected at many times in our history, in what has been an important bipartisan function of our institutions.

The Governor-General Sir Michael Hardie Boys put that plainly in Waitangi in 1999. He said that the Treaty was, essentially, about the acceptance of that obligation. Māori had entrusted their future to the honour of the Crown, and it’s the honour of the Crown which is at issue in this bill: “honour” is the word which is being taken out. “It was not an obligation frozen in time” is how Sir Michael Hardie Boys put it. The obligation remains, requiring New Zealanders to honour the Treaty.

Sir Paul Reeves, another Governor-General, put the idea another way in 1987, when he said, “A critical concept in the Treaty is reckoned to be honour”. The idea here was that Māori believe that the rectification of injustices depends on the honour of the Crown. That is something that all New Zealanders can get behind; that our history has required us in the 1840s, then in the 1860s, then in the 1890s, then in the 1930s, then in the 1970s to come together in public forum and to have a discussion about the things we had got wrong and the injustices that Māori had faced and to implement ways forward.

There should be, on some sides, some level of forgiveness, but there should also be a sense that the honour of the Crown will always prevail and that the promises made by the Crown to its citizens at the time when it entered into these agreements should always be striven for. That is the standard against which this bill should be judged, and it will be found wanting.

This bill deliberately lowers those Treaty obligations in four Acts, and so, when we ask ourselves, “Has the Crown lived up to the honourable conduct it owes its Treaty partner”, the Waitangi Tribunal found that Cabinet proceeded despite clear and repeated advice from officials that there had not been time for any in-depth analysis and that the impacts were not understood, and the regulatory impact statement was not developed enough to support any informed decision, and that Māori hadn’t been meaningfully consulted or engaged before the substantive decisions had been made. It found, then, that the Crown had a reckless disregard for the likely and advised harm to Māori-Crown relations.

The point here is that this bill isn’t standardisation; this is deliberately taking us backwards, and it is flouting political history that we all should be proud of.

Thank you, Mr Speaker. Listening to the deplorable name-calling this afternoon in the House, it’s no wonder why bullying is so rife in New Zealand and suicide amongst youth is so rife as well. This is part of the coalition agreement between New Zealand First and the National Party, and National commends this.

Oh my goodness, the nonsense we’re hearing in the House. The only thing shameful is your kōrero.

I want to go back to what Arena Williams said: history is really important here, because so many learned, so many honourable judges and politicians have talked about the special Māori-Crown relationship, but this useless lot in ACT never ever acknowledge it. Mr Seymour knows more, apparently, than Governor-General Hardie Boys.

💬 Carl Bates: How much of your own policy do you actually understand?

Well, if we look back, Lord Cook talked about a partnership between Māori and the Crown and Pākehā—Lord Cook, for example. Sian Elias; Governor-General Silvia Cartwright—brilliant, brilliant people. Our best Māori judges: Judge Joe Williams, Judge Caren Fox, the current Tribunal boss, rangatira, and this useless lot on the other side say they don’t know what they’re talking about. This lot on the other side say, “What partnership? What relationship? What are they talking about?”

Mr Seymour and this ACT Party, who talks about an equal role for everyone, wants to kill Māori rights—don’t shake your head—wants to kill Treaty rights, Treaty rights that have been agreed to by the greatest judges in this land. Oh, shake your head, you better do some reading—agreed to by people like John Key, by people like Doug Graham, Chris Finlayson, all the way through, Helen Clark, Jacinda, Andrew Little, our current leader Chris Hipkins, National Party leaders, great MPs. That’s why Chris Finlayson and Doug Graham are embarrassed by this useless, rotten Government, who are going to go out on 7 November—that is the hope. We can’t put up with this continual attack on Māori rights and on Treaty rights.

In terms of this bill, “give effect to” and “taken into account” do not mean the same thing. “Give effect to” requires decision makers to actually implement or achieve the relevant obligation; “take into account” allows it to be considered alongside competing considerations. That means Māori lose an existing statutory protection. Parliament previously chose wording in particular Acts for a reason; the Government is now deliberately lowering the protection. Uniformity is not a justification for weakening rights for Māori.

You hear Minister Goldsmith, “Oh, we’re just like Winston Peters, we just want to have some consistency”—consistency is not about weakening Māori rights. That’s not what consistency is about. Consistency is not about attacking Māori rights, attacking Māori communities. Seventy thousand to 100,000 people marched on this Parliament while the cowardly ACT Party stood in the corner—David Seymour waved like an idiot like this—because our people are fuming, because our people are angry. Seventy thousand Ngāti Kahungunu came down here on their horses, led by Bayden Barber—brilliant. Our people are rising up.

If consistency was genuinely the objective, the Government could standardise provisions upwards rather than select the weakest standard. Different laws require different Treaty obligations: environmental management, conservation, health, and other areas involve different Crown responsibilities. There’s no principled reason why they must all have the same, identical legal weighting.

Shame on this Government. They’re all looking at their books because they know this is an embarrassing time. I’m embarrassed to even be speaking on this, but I want to finish this kōrero in a positive light. Tangi’s all over me, and I intended to tell him my 92-year-old Pākehā auntie the other day, and she’s been with Māori all her life—two Māori husbands, wonderful, my auntie Peggy Nepia, a great example of the Treaty in partnership. Great example—92 years old, always following politics, always giving us advice. Even liked you, too, Mr Speaker; in the past had a soft spot for the odd National Party person, but no time for this useless, filthy, rotten Government, who are going to be gone on 7 November. Kia ora tātou.

💬 SPEAKER: Before I call Carl Bates, I just want to indicate to the Hon Willie Jackson that I will overlook his suggestion that I’m somehow an odd National Party person.

Thank you, Mr Speaker. Willie Jackson forgets a lot of Labour Party policy, including the fact that it was the Labour Party that passed the foreshore and seabed law. I commend this bill to the House.

A party vote was called for on the question, That the References to Tiriti o Waitangi/Treaty of Waitangi (Strength of Legislative Obligations) Amendment Bill be now read a first time.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 37

New Zealand Labour 22; Green Party of Aotearoa New Zealand 10; Te Pāti Māori 4; Kapa-Kingi.

Motion agreed to.

Bill read a first time.

Referral to Select Committee

SPEAKER (15:49): The question is, That the References to Tiriti o Waitangi/Treaty of Waitangi (Strength of Legislative Obligations) Amendment Bill be considered by the Justice Committee.

Motion agreed to.

Bill referred to the Justice Committee.

Policing Amendment Bill

Legislative Statement