Principles of the Treaty of Waitangi Bill - Submission of The Opportunities Party

The Opportunities Party (TOP) is a political party founded in 2016. It exists to enact policy that affords every Kiwi equal opportunity to pursue their potential, in ways that are socially, economically, and environmentally sustainable. It aims to address challenges at a fundamental level, rather than tinkering at the edges. One of the objects of the party is to honour Te Tiriti o Waitangi as the foundation upon which any fair and equitable future is to be built.

 

We wish to make the following comments:

This Bill is wasting Parliamentary time and taxpayer money. It is constitutionally inappropriate, historically flawed and procedurally illegitimate. 

The Bill outlines ambitious objectives, aiming to provide clarity, promote national dialogue, and enhance social cohesion. It fails to meet any of these objectives.

 

1. Fails to Create Greater Certainty and Clarity

• Complexity of Treaty Interpretation: Te Tiriti o Waitangi has been subject to decades of nuanced legal interpretations by the Waitangi Tribunal and courts. The principles are inherently flexible to account for context and evolving relationships. Codifying these principles in statute risks oversimplifying them, creating more disputes over interpretation rather than reducing them.
• Divergence from Established Precedent: The Bill attempts to retroactively impose a specific and historically inaccurate interpretation on te Tiriti, unilaterally rewriting it and upsetting 50 years of case law and legislative and administrative practice. By seeking to redefine principles, the Bill disregards established legal frameworks, creating uncertainty for both Māori and non-Māori stakeholders. This could result in challenges to existing settlements and agreements, undermining their perceived durability.

 

2. Fails to Promote a National Conversation

• Lack of Inclusivity in Development: The process by which this Bill has been introduced to Parliament has created significant social division and damage to Crown-Māori relations. The Bill has been developed with minimal input from stakeholders, including Māori. A constitutional conversation on Te Tiriti should afford all New Zealanders a fair and equitable opportunity to participate. Most specifically, it must involve good faith engagement between the two Treaty partners. While its ultimate culmination could involve Parliamentary process or a referendum, this should be preceded by building a broad-based consensus.
• Polarization Rather Than Dialogue: Far from fostering a constructive conversation, the Bill has sparked significant public opposition, including large-scale protests and hīkoi. This suggests that the process has deepened divisions rather than encouraged meaningful engagement. The introduction of this Bill has undermined/impeded the broader constitutional conversation and thus the democratic process. 

Some New Zealanders have expressed legitimate concerns about how the partnership envisioned in te Tiriti has been implemented in recent years. These should be addressed in a nuanced and considered way and in the specific context that has given rise to them, often local. The polarisation this Bill has engendered will prevent these concerns from being constructively responded to.  

 

3. Fails to Create a Robust and Widely Understood Conception of Constitutional Arrangements

• Narrow Focus on Treaty Principles: The Bill’s emphasis on codifying Treaty principles neglects the broader context of New Zealand’s constitutional framework. Te Tiriti is just one part of this framework, and reducing it to a statutory definition risks sidelining its role as a living document shaping relationships between the Crown and Māori. 

The proposed contents of the Bill do not engage with the legitimate legal right of Māori as New Zealand citizens (formerly “British Subjects” in the parlance of the Treaty itself) to restitution for the breaches that have taken place over the years. The sum total value of Treaty settlements so far paid is negligible compared to the value of land alone that has been confiscated. While full restitution is unlikely to ever prove feasible, to close off that element of the discussion is unjust. 

• Confusion and Mistrust: By diverging from the established understanding of Treaty principles, the Bill introduces confusion. The Bill undermines trust in the government’s commitment to honoring te Tiriti’s intent and spirit of partnership between Māori and the Crown.

 

4. Fails to Build Consensus or Promote Social Cohesion

• Opposition from Key Groups: Widespread criticism from Māori, legal experts, and significant parts of the public indicates that the Bill has failed to build consensus. Consensus requires broad-based support, yet the Bill’s perceived attack on Māori rights has deepened existing tensions. Most tellingly, the Bill’s proponents have failed to convince a single additional Member of Parliament to support the Bill beyond its first reading.
• Erosion of Social Cohesion: Rather than promoting unity, the Bill has heightened division. Social cohesion is undermined when one group feels their rights and historical grievances are being dismissed or minimised.

 

We wish to make the following recommendations:

Ideally, we would recommend withdrawing this Bill with immediate effect. However, as there is little prospect for this our recommendations centre around the process for constitutional conversations with the aim of counteracting the division this Bill has exacerbated.

We recommend a just and wide-ranging “constitutional conversation” be initiated. There are multiple modern examples of such processes from jurisdictions such as Ireland, Wales, Taiwan and Iceland. This will require significant time and investment, but is worthwhile given its fundamental impact on New Zealand’s future.With respect to Te Tiriti this conversation should have the following characteristics:

• Recognise te Tiriti’s status as a binding agreement between Crown and Māori and fundamental to our Constitutional arrangements
• Proceed from the existing recognised principles as a starting point
• Consider the full scope of potential restitution for historical Treaty breaches
• Grapple with the modern day inequities that effect Māori 
• Evaluate and advance current and possible modes of joint decision-making with respect to various resources within the scope of Article 2
• Directly involve as wide a range of New Zealanders as possible in processes of education and enquiry into the history of Te Tiriti, and ultimately in working towards a consensus
• Engage Māori as equal partners, including with processes that are more congruent with tikanga
• Recognise that the process of implementation of the partnership te Tiriti envisages will be ongoing and take place in many different contexts. In all cases it should continue to be approached in a spirit of open and good faith dialogue between partners that also proactively engages citizens.