Treaty Principles Bill: What you need to know

Explainer - There's been a lot of talk about the coalition government's Treaty Principles Bill - it has been the cause of protest around the country and triggered an urgent Waitangi Tribunal report.

Various groups have come out in strident opposition, including lawyers, historians, translators and churches.

The bill brings to life ACT Party policy, to enshrine what the Treaty means into law. The party has long argued the original articles have been interpreted by the courts, the Waitangi Tribunal and successive governments - over decades - in a way that has amplified their significance and influence beyond the original intent.

The proposed bill, and the referendum it would trigger if passed into law, were at the heart of the party's post-election negotiations with the National Party last year. In the end, ACT secured a commitment to get the bill as far as select committee - but no further. This was a concession neither party was happy about, an uneasy compromise, and one proving increasingly problematic for National and its leader Christopher Luxon.

The bill was not set to be introduced to Parliament until 18 November, but that has now been moved forward to 7 November.

Both National and NZ First have said on the record they will not vote for the bill past the first reading, which means it's doomed to be voted down around the middle of next year.

ACT leader and the bill's sponsor, David Seymour, is calling for his coalition colleagues to respect the democratic process and make up their minds once the public has had its say.

So, why all the fuss if it won't become law? What's the proposed legislation all about? Where did the original principles come from? And where will it all end up?

RNZ political reporter Lillian Hanly is here to answer those questions.

Why is it happening?

The Strengthening Democracy section in the coalition agreement between ACT and National states: "To uphold the principles of liberal democracy, including equal citizenship and parliamentary sovereignty, the parties will: "Introduce a Treaty Principles Bill based on existing ACT policy and support it to a Select Committee as soon as practicable".

ACT campaigned on holding a public vote to scrap the principles that have been established through the courts - such as partnership - and codifying in law a new interpretation focused on the protection of "land and property rights" and "all New Zealanders" being "equal under the law".

Part of the policy includes putting the new principles to a binding referendum - but that would only happen if the bill were to become an act of law.

Seymour argues the interpretation of these principles has been developed through the Waitangi Tribunal, courts and public service, and "New Zealanders as a whole have never been democratically consulted on these Treaty principles". The principles have been developed to justify actions many New Zealanders feel are "contrary to the principle of equal rights", he claims, including co-governance in the delivery of public services. The purpose of the bill, says Seymour, is to provide certainty and clarity and to "promote a national conversation about their place in our constitutional arrangements".

The bill has been given the go-ahead by Cabinet, with changes made to the wording of the original policy and initial proposal - the most substantial of which is to include reference to the rights of "hapū and iwi" in what would be the second principle. Seymour said he hoped this would allay some concerns about the legislation.

The bill will also get the full six-month select committee treatment, which provides the opportunity to have a cross-party group of MPs consider extensive written and oral submissions, giving the legislation a public forum and a parliamentary-facilitated public debate. On the other hand, critics argue it is costly and a waste of valuable parliamentary time. Furthermore, there are widespread concerns the ensuing debate, on the elevated public platform afforded by the committee hearing, will ignite racial tensions and stir up resentment among different New Zealanders.

What are the original Treaty principles?

There are two important points to note for context: the principles, as currently interpreted, derive from the original Treaty articles, and the 1840 document was signed in the context of Māori already having declared their independence through He Whakaputanga, signed in 1835. The Treaty should also be viewed in the context of its significant status as one of New Zealand's founding constitutional documents. Aotearoa does not have a written constitution, rather a collection of fundamental laws, conventions, and documents, including Te Tiriti. 

The Māori text, Te Tiriti, was the one signed by most rangatira Māori (540, compared to 39 who signed the English version), and it is that text that is recognised in international law (contra preferentem). The two different versions have been cause for confusion, the crux being whether Māori ceded sovereignty or not.

The Māori text indicates Māori retained 'tino rangatiratanga', whereas the English text indicates Māori gave to the Queen of England the 'rights and powers of sovereignty'. The different texts, and the different interpretations,have been debated for years and came up again for discussion recently at Parliament.

Questioning in the House by Chlöe Swarbrick led Luxon to state Māori did cede sovereignty, leading to Labour's Chris Hipkins stating for the first time that Māori did not. The Greens and Te Pāti Māori have always held that position, whereas ACT and New Zealand First align with Luxon and say Māori did.

So how did those principles come about?

The Treaty of Waitangi Act in 1975 established the Waitangi Tribunal, which was tasked with "determining the meaning and effect of the Treaty for the purposes of inquiring into Māori claims" - claims that referenced breaches of Te Tiriti. The Tribunal points out that due to the differences in translation, the act requires them to "decide issues raised by the differences between them". So, the Tribunal has authority to examine whether legislation is consistent with the Treaty.

Essentially, the 'Treaty Principles' have been established over time. This has been part of ongoing efforts to reconcile the two different texts, interpret how Te Tiriti should be applied in particular cases, or, how to give effect to its spirit and intent. For that reason, there's no exact list of principles, they aren't defined in law, and they have been developed over 40 years of case law and government policy.

Some of the key ones articulated by the courts and the Tribunal, and referenced in the Cabinet paper later released by Seymour are:

• Partnership - under which the Crown and Māori both have a positive duty to act fairly, honourably, and in good faith towards one another
• Active protection - which places upon the Crown a positive duty to protect Māori interests and taonga
• Redress - which requires the Crown to redress the wrongs it has perpetrated against its Treaty partner.

Writing recently about this bill, legal academic Carwyn Jones said these principles "reflect a significantly watered-down version of Te Tiriti". Beyond that, he's written about the Treaty Principles proposed earlier by ACT, saying they "do not at all reflect the meaning of Te Tiriti". He thinks it is unsurprising that Parliament decided an "expert body" should have the job of interpreting and applying the principles of the Treaty. In this article he lists some of the other principles as they have been applied through different legislation over the years.

ACT would argue the principles have a very influential role in decision-making, political representation and resource allocation that has gone too far. Seymour believes it is necessary to define the principles "or the courts will continue to venture into an area of political and constitutional importance".

New Zealand First agrees with the basic tenets of that position, however, that support does not extend to ACT's legislative solution. The party has publicly stated it will vote against the bill once it returns to the House for its second reading, after the select committee process is complete.

What is the bill?

The bill is set to be put before the House on 7 November, but its first reading in Parliament can occur no sooner than the third day of sitting after its introduction. So far what we have seen, is the detailed proposal Seymour took to Cabinet, and the risk/benefit analysis done by Ministry of Justice officials.

His plan got sign-off, including that six-month select committee process and progressing work on what a referendum might look like - fuel to the fire for opponents. Parliament is expensive to run, and they argue it is a waste of time and resource having such an extensive consultation process for legislation already dead in the water.

There have been a few different iterations of this final version though, the first of which came from the ACT policy, announced on their website in October 2022.

Then, once the coalition agreed to the policy during negotiations in 2023, the next iteration came in the form of a leaked Ministry of Justice document in January 2024.

In February, the ACT Party launched an information campaign about the Treaty Principles Bill with a website, and listed the principles verbatim to the leaked Justice document, confirming these were the proposed articles.

The September Cabinet paper contained the final version of the principles to be drafted into a piece of legislation by the Parliamentary Counsel Office. Seymour released this paper along with the officials' Regulatory Impact Statement. He pointed to a change in Article 2 due to concerns raised about the specific rights of hapū and iwi. That is because they were the signatories to the Treaty, along with the Crown.

Here's the final proposed principles copied in full:

Civil Government - the Government of New Zealand has full power to govern, and Parliament has full power to make laws. They do so in the best interests of everyone, and in accordance with the rule of law and the maintenance of a free and democratic society.

Rights of Hapū and Iwi Māori - The Crown recognises the rights that hapū and iwi had when they signed the Treaty/Te Tiriti. The Crown will respect and protect those rights. Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreement with the Crown.

Right to Equality - Everyone is equal before the law and is entitled to the equal protection and equal benefit of the law without discrimination. Everyone is entitled to the equal enjoyment of the same fundamental human rights without discrimination.

ACT says the policy is based on the text of the Treaty itself, and they'd spoken to "a wide range of New Zealanders" in developing it.

Officials raise concerns

The Regulatory Impact Statement that Ministry of Justice officials prepared for the bill raises a range of concerns.

Overall - the officials say "although the proposal to introduce the bill could have some value, we consider the status quo is more beneficial".

By maintaining the status quo, the officials say, "the courts and the Waitangi Tribunal would continue to articulate the meaning of the Treaty principles in line with the existing legislation and practice". That option would also "uphold Treaty obligations to the same extent as they are now". They acknowledge that defining the Treaty principles in legislation "might provide a level of clarity about the intent of Parliament when it refers to the principles", but they say it could also "introduce more uncertainty into our constitutional arrangements" by unsettling the "established jurisprudence about the effect of the principles".

The officials say maintaining the status quo could also "minimise the risk of damaging Māori-Crown relations, because the proposed bill could be seen as an attempt to limit the rights and obligations created by the Treaty". The advice points out the proposed principles are "inconsistent" with Te Tiriti. In particular, the officials say, "it does not accurately reflect Article 2," because by restricting rights of hapū and iwi to those specific in legislation it "implies that tino rangatiratanga is derived from kāwanatanga", thus, they say, reducing "indigenous rights to a set of ordinary rights".

The officials say that not recognising collective rights of hapū and iwi calls into question the very purpose of the Treaty and its role in the country's constitutional arrangements.

They also note the findings of the interim report from the Waitangi Tribunal on the bill, which stated the policy was "unfair, discriminatory, and inconsistent with the principles of the Treaty". The Tribunal report itself - released before this final set of principles was released - said if the bill was enacted based on the principles proposed by ACT, "it would fundamentally change the nature of the partnership between the Crown and Māori" by "substituting existing Treaty principles for a set of propositions which bear no resemblance to the text or spirit of the Treaty of Waitangi/Te Tiriti o Waitangi".

In response to the bill's earlier-than-anticipated introduction, the Waitangi Tribunal has released its second interim report into the bill.

The 145-page report said if the bill were to be enacted, it would be the "worst, most comprehensive breach of the Treaty/te Tiriti in modern times".

It went as far as to suggest the bill could mean the end of the Treaty itself, if it was not repealed. The bill was having serious impact on the relationship between the Crown and Māori "but the Bill if enacted would kill that relationship. This is deliberate," the report said.

And the officials said the proposal and debate around the bill could generate division "posing a threat to social cohesion", the impacts of which they advise Māori will suffer and bear the brunt of the blame for. They said putting the decision to the wider public through a referendum brings a "significant risk that the will of a non-Māori majority will impose on the minority partners." Seymour responded to this in the Cabinet paper by saying he found it disappointing and that it was the kind of thinking the Treaty Principles Bill seeks to challenge.

Protests against the bill so far

When the coalition agreement was announced a 'National Māori Action Day' was planned soon after, in relation to the polices affecting Māori.

The momentum continued with the former Māori King, Kiingi Tuheitia, calling on Māori to attend a Hui ā Motu - a national hui - at Tuurangawaewae in the new year. That momentum carried on to discussions at Rātana, and to Waitangi Day commemorations and protests.

Government policies, including the bill, led to multiple urgent inquiries by the Waitangi Tribunal, with Seymour responding by calling them "increasingly activist". Te Pati Māori says a planned nine-day protest hīkoi from the top of the North Island to Wellington scheduled is still going ahead despite the bill being introduced to Parliament ahead of schedule. The hīkoi is due to start on 11 November with the view of arriving at Parliament on 19 November - the day after the bill was originally set to be introduced.

When it comes to the Treaty Principles Bill, people have expressed concern this is an attempt to rewrite Te Tiriti, or an attempt to change the nature of the relationship between Māori and the Crown without any consultation with Māori - one of the partners to the Treaty. The Cabinet paper states the bill is "not intended to alter or amend the text of the Treaty itself" and Seymour has reiterated this too.

Multiple people and groups have now come out in opposition to the bill, including many Māori, historians, translators, former politicians, health experts, churches, and legal experts.

ACT is the only political party in full support of the bill, with the coalition parties saying they will support it only to select committee - as per the agreement - and all opposition parties saying they oppose it entirely, and that it shouldn't be allowed to go ahead at all.