Rapua ngā tuhinga ruku tātari

On Tuesday 5 November 2024, the Waitangi Tribunal released Ngā Mātāpono/The Principles: Part II of the Interim Report of the Tomokia Ngā Tatau o Matangireia – The Constitutional Kaupapa Inquiry Panel on The Crown’s Treaty Principles Bill and Treaty Clause Review Policies in pre-publication format.

This updated report responds to further evidence provided to the Tribunal on the policy development process for the proposed Treaty Principles Bill since May 2024, including the Cabinet paper on the proposed Bill.

The earlier findings and recommendations in the Tribunal’s initial interim report have not changed. Rather, this updated report consists of an additional chapter (chapter 6) that makes further findings on these specific matters.

Regarding the Crown’s policy development for the Bill, the Tribunal found the Crown’s process to develop the Bill has purposefully excluded any consultation with Māori, breaching the principle of partnership, the Crown’s good-faith obligations, and the Crown’s duty to actively protect Māori rights and interests. The Tribunal also found this policy process to be in breach of the principle of good government, as Cabinet has decided to progress the Bill despite it being a policy that is not evidence-based, has not been adequately tested, has not been consulted upon, and fails regulatory standards.

The Tribunal analysed how the proposed content of the Bill does not reflect the texts or meaning of the Treaty/te Tiriti. The Tribunal commented that Principle 1 misinterprets the kāwanatanga granted to the Crown in 1840, which is not an unbridled power restrained only by its own sense of what is in the best interests of everyone. Cabinet’s approval of Principle 2 for introduction in a Bill was found to be a breach of the principles of tino rangatiratanga, kāwanatanga, partnership, and active protection. The Tribunal commented that Principle 2, if enacted, would revoke the promises and guarantees the Queen made to Māori in 1840. The Tribunal held that Principle 3 bears no resemblance to the meaning of article 3 and that Cabinet’s decision to introduce the principle in a Bill was a breach of the Treaty/te Tiriti principles of partnership, equity, and active protection. 

The Tribunal found that these breaches caused significant prejudice to Māori. The Tribunal found that Māori would be particularly prejudiced by the extinguishment of tino rangatiratanga in a legal sense if the Bill were to be enacted. Among other effects, the new principles would apply to all legislation where the Treaty/te Tiriti might be considered relevant. The Tribunal also found that the new principles would advance the discredited agenda of assimilation, as they are designed to end the distinct status of Māori as the indigenous people of this country. The Tribunal commented that, even if the Bill were not enacted, Cabinet’s decision to introduce the Bill would prejudice Māori by further damaging the Māori–Crown relationship. Māori would also feel the brunt of the social disorder and division caused by the introduction of the Bill, including through the select committee process.

The Tribunal confirmed its previous recommendation that the Bill be abandoned. If the Government does not abandon the Bill, the Tribunal recommended that, given the constitutional significance of the issue, the Bill be referred to the Tribunal under section 8(2) of the Treaty of Waitangi Act 1975.

The Tribunal reserved its jurisdiction to hear further evidence and submissions concerning the Bill, should it be enacted.