A Referen-Dumb or a Referen-Smart?

Parchment, power and a thorough process

On Friday morning, Rawiri Waititi shared a photo of a document that he claimed was a leaked version of an upcoming Bill. The Bill proposes a referendum to define the principles of the Treaty of Waitangi.

The three interpretations offered

The document defines three principles: the right of the New Zealand government to govern; that every New Zealander has chieftainship of their lands and property; and that all New Zealanders are equal under the law with the same rights and duties.

These principles are simultaneously fundamental to the way that democracy has developed, and not perfectly relevant to the Treaty.

Who gets to govern?

The first principle is certainly how the Treaty was understood by the early Pakeha settlers. But there is controversy about the use of the word “kawanatanga” (government) and what those who signed it actually were signing away.

When looking at the Treaty in the light of the Declaration of Independence of New Zealand from 1835, Kawanatanga looks to be only giving limited rights to rule. However, by the Kohimarama conference in 1860 there was widespread agreement between the Rangatira who signed the treaty (including representatives of Ngāpuhi) that they had knowingly ceded sovereignty.

In practice, there’s no doubt that the elected government of New Zealand has the right to rule. The question is if that is as a result of the Treaty, and a principle established by it, or because that’s just what ended up happening.

The same sort of issues come up with the other two principles.

While we can acknowledge that property rights are important, and giving people a degree of autonomy about what they do with their land is a bastion of our society, it is hard to argue, as the Bill is attempting to do, that the Treaty gave those rights to Pākeha. Perhaps if articles two and three of the Treaty were reversed, it might be possible to argue that. But it’s hard to see that that’s something that is a product of the Treaty in any meaningful way.

Does the Treaty imply that people should be treated equally under the law? To a degree, yes, but not entirely.

Māori were prevented from selling land to anyone other than the Crown. And there was no assurance that the rights that Māori were given would apply to anyone else. At this point in British history, the Welsh still had to pay an extra tax and the Treaty did not stop that being the case. Likewise, the Treaty did not stop the racist laws that the colonial government passed, limiting the rights of Chinese immigrants.

Not all things to all people

So, while it is hard to disagree that it’s good that we have a government who can govern, enshrined property rights, and that we are all treated equally under the law, it’s also hard to say that these are the principles of the Treaty of Waitangi.

This leaves us in a difficult position with regards to this Bill. It is wanting to explicitly state some very good principles, but they aren’t necessarily the principles of the Treaty of Waitangi. That doesn’t mean, however, that this whole process should be done away with.

How law is made

When a law passes through our Parliament it goes through several stages. It begins with the first reading. This is where the idea behind the law is debated. The big question here is “is this law worth consideration?.”

Next there’s the committee stage. This is where a bill goes to a select committee so that the public can be consulted. Often this results in a small number of people making a submission, but occasionally there can be a very large number of submitters.

This stage allows the public to have a say, and at the end of this stage, the committee can submit any amendments that it has decided would be worth making to the Bill.

For some laws, this stage is a mere formality. The law has been carefully drafted and any changes will be minor. Historically, that hasn’t always been the case. Some governments have used the select committee stage as the time to actually flesh out the details of the Bill.

Getting the proposal on the floor

One famous example was the former Prime Minister of the UK, David Lloyd George. He would often submit very poorly drafted laws for the first reading, because he was interested in establishing the principle first. Then, through the select committee (and the later house committee stage) his laws would get tidied up.

He would use parliament the way that it was intended.

And this Bill might be a good opportunity for New Zealand’s parliament to do likewise.

We are no longer in a two-party dominated FPP environment. Roughly 32% of our parliamentarians are members outside of the two main parties. Using the committee stage as a glorified rubber stamp should be a thing of the past.

How to do this properly

If we are going to define the principles of the Treaty in law, let's go through the process properly.

These three principles are a starting point only. Although they are principles that are generally important foundations of a modern democratic state, they aren’t perfect. If the process results in these three principles being the ones that go to the second reading, this Bill should get voted down.

And there’s clear evidence that is what would happen. The National Party only agreed to support the Bill up to the first reading in the coalition agreement. They have agreed that they will allow the ACT party to submit something to the select committee for the public to submit on.

If the select committee process is done well, then what makes it to the second reading may well be more faithful to the actual principles of the Treaty.

And if that happens, the exercise will have been well worthwhile.