On Friday 16 August 2024, the Waitangi Tribunal released Ngā Mātāpono – The Principles: 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.
The report concerns claims submitted to the Tribunal under urgency regarding Crown policies to progress a Treaty Principles Bill and, separately, to review legislative enactments referring to ‘the principles of the Treaty of Waitangi’ (the Treaty clause review). The Tribunal held the claims at hearings on 9 and 10 May 2024.
With respect to the Treaty Principles Bill policy, the Tribunal found that the Crown had breached the Treaty principles of partnership and reciprocity, active protection, good government, equity, redress, and the article 2 guarantee of rangatiratanga. The Crown failed to engage with Māori, and the Bill:
- lacked a policy imperative justifying its development;
- was based on flawed policy rationales;
- was ‘novel’ in its Treaty interpretations;
- was fashioned on a disingenuous historical narrative; and
- distorted the text of te Tiriti o Waitangi.
If enacted, the Tribunal found, the Bill would reduce the constitutional status of the Treaty/te Tiriti, remove its effect in law as currently recognised in Treaty clauses, limit Māori rights and Crown obligations, hinder Māori access to justice, impact Treaty settlements, and undermine social cohesion.
With respect to the Treaty Clause Review policy, the Tribunal found that the Crown breached the Treaty principles of partnership, active protection, equity, redress, good government, and the article 2 guarantee of rangatiratanga. It found that the policy was predetermined and would result in amendments to or repeals of Treaty clauses. This would reduce Treaty/te Tiriti protections for Māori, affecting the rights of Māori to access justice to have their Treaty/te Tiriti rights realised. The Crown further failed to engage with Māori on this policy.
The Tribunal concluded that the two policies, considered jointly, were consistent with an alarming pattern of the Crown using the policy process and parliamentary sovereignty against Māori instead of meeting the Crown’s Treaty/te Tiriti obligations. The combined impacts of the policies are or will be highly prejudicial to Māori.
The Tribunal recommended that:
- The Treaty Principles Bill policy should be abandoned.
- The Crown should constitute a Cabinet Māori–Crown relations committee that has oversight of the Crown’s Treaty/te Tiriti policies. The Tribunal did not consider it appropriate that these matters are considered by the Social Outcomes Cabinet Committee.
- The Treaty clause review policy should be put on hold while it is reconceptualised through collaboration and co-design engagement with Māori.
- The Crown should consider a process in partnership with Māori to undo the damage to the Māori–Crown relationship and restore confidence in the honour of the Crown. While the Tribunal noted that this issue was wider than the two specific policies before it in this urgent inquiry, it stated that it made this recommendation based on its findings and the redress that is necessary to remove the prejudice and prevent similar prejudice in the future.
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