The Treaty Principles Bill, introduced in 2024, is designed to establish a broad and deep understanding in the national consciousness about the meaning of the principles of the Treaty of Waitangi in legislation, thus promoting widespread understanding about its place as a foundational constitutional document. The bill aims to achieve this by conducting a nationwide referendum on the principles of the Treaty, which are posited in the bill itself. The goal is to draw on these new principles as a guide for any Crown decisions and actions where the Treaty may be relevant.

The bill has inflamed tensions in this country, with much anger and frustration on both sides of this issue. My attempt here is to look past the deeply rooted passions that have arisen by instead examining this bill in a more measured, reflective, and rational light. The main thrust of the argument for this bill, that the Treaty ought to be a universal declaration of human rights to establish racial equality, falls apart upon further scrutiny.

In this submission, argue against this bill, by illustrating that the details or particulars of the Treaty, and the context surrounding it, must be considered when interpreting it, which is something this bill fails to do. By radically revising the Crown’s approach to the Treaty, this bill damages the Māori-Crown relationship, and risks further exacerbating social divisions and tensions.

The view against the bill is one that promotes equity, which we may define, as David Lange once put it, as a society where “people have a chance to be equal”.[1] Further, the principles for interpreting and applying the Treaty by the Crown have already been established, making those posited in this bill redundant.

Ultimately, I conclude that the bill is both harmful and unnecessary

The Treaty of Waitangi, signed in 1840, was an agreement of partnership between the British Crown and Te Iwi Māori wherein Māori agreed to allow the Crown to establish a government in Aotearoa/New Zealand in exchange for certain considerations including, for example, the protection of Māori interests such as the management of their own affairs on their own land and related taonga.[2] 

Although the bill is being sponsored by our coalition government as part of their coalition arrangements at the first reading only, it is unlikely to proceed beyond the second reading. It may be argued that the efforts to promote the bill, despite its almost certain demise, is to satisfy a secondary goal of this bill; to foster social cohesion, national unity, and to facilitate a conversation about the place of the Treaty within this country. 

Misinformation and disinformation are currently being spread on social media with uncharitable and bad faith representations of the arguments and perspectives on either side dominating online discourse. This has given rise to emotionally charged social rifts within this country, with those on either side of the debate accusing the other of racism and ignorance. Although debates of this type emerge every 20-30 years, this bill has prompted protests on an historically unprecedented level as the Treaty of Waitangi is again thrust into the spotlight of the nation’s attention.

This bill seeks to clarify precisely what the principles of the Treaty are. However, this is not unprecedented. Although outlining the content of previous efforts is beyond the scope of this submission, their historic and legal context will be briefly summarised.
 
The Court of Appeal published a list of seven principles in 1987 to achieve two goals; address the then Māori Council’s litigation against the Crown to prevent the Fourth Labour Government’s selling of state assets as these could be used for future Treaty settlements, and to provide a codification of the Treaty principles as a means of addressing references to them in extant legislation.[3] The current “Three Ps” principles have developed from this foundation.[4] 

However, that government proceeded to further establish their own list of five principles to provide a more structured framework to guide the Crown’s relationship with Māori.[5] Although these principles guided Treaty settlements and subsequent legislative frameworks, the Three Ps continue to be the overriding framework used to this day, being the most commonly familiar within the country.
 
While these frameworks overlap considerably, there are significant differences. The Five Principles are more context specific, providing legal guidance rooted in historical context by balancing Māori rights with Crown obligations in interpreting the differences between the two versions. By contrast, the Three Ps developed from judicial and Waitangi Tribunal interpretations to arrive at broad, high-level principles suitable for practical guidance within both the public and private sectors by emphasising equity and protection.
 
Despite these attempts, the bill seeks to introduce yet another set of principles to define the Crown’s relationship with Māori, by emphasising equality of all New Zealanders in its interpretation of the Treaty. Specifically, it states that the Crown recognises the rights of Māori under the Treaty but where those rights conflict with the rights of all New Zealanders, those specific to Māori will only override the latter during Treaty settlements. These proposed principles contrast sharply with the themes of equity and protection in the Three Ps.
 
It is unsurprising then that most of the arguments on each side appear reducible to matters concerning racial equality, equity, and fairness.

The debate centres on whether the bill fosters racial equality and whether it is appropriate, reasonable, and just to interpret the Treaty as an instrument of equality. Proponents of the bill argue that it is indeed fair to expect this from our foundational document. By contrast, those to the contrary claim the bill relies on a revisionist interpretation of the terms of partnership outlined in the Treaty which damages the Crown-Māori relationship by placing Māori in a more vulnerable position than they already are – which they deem is unfair.

Those who claim that the Treaty ought to be an instrument of equality argue that an egalitarian society is one where all citizens are treated as one group, with no group (particularly those defined on demographic lines) being privileged over another. They argue that this bill helps instil a sense of fairness in the nation, which encourages social cohesion, as no single group would have special privileges over another.
 
More specifically, perhaps anticipating objections about privileges based on other demographic factors (e.g., age-based privileges), they prefer a society that is not divided along racial/ethnic or cultural lines where one group has different entitlements to another. They argue that such societies are looked upon with disgust, such as the apartheid regime in South Africa. Indeed, proponents of this view insist that co-governance arrangements where contribution by Māori groups within governmental bodies, whether local or national, is unbecoming of a modern democratic society as it appears to elevate Māori above the rest of their countryfolk.
 
As such, they argue that the Treaty Principles Bill places an important egalitarian interpretation of the Treaty at the centre of the relationship between the Crown and Māori. In essence, they claim that the Treaty must be interpreted as a document that provides universal human rights, at least concerning racial and cultural rights. This perspective is not without reference to the Treaty itself, as the Third Article refers to the endowment of Māori with the same rights as British citizens. This article may be interpreted as treating Māori the same as other citizens, hence its invocation as a means of insisting that the Treaty grant racial equality. This argument, which interprets the Treaty as an egalitarian document that provides universal human rights to all New Zealanders may be called the universalist perspective.

The contrary view is one that focuses on the details of the Treaty itself, including its historical context and purpose. They point to the fact that the Treaty was an agreement between the Crown and Māori wherein, irrespective of which translation is cited, Māori granted the Crown the authority to establish a government within their territories in exchange for concessions in the form of protections such as the continued possession and management of their lands, assets, resources, and other taonga as specified in Article Two.
 
As such, proponents of this view argue that the continued authority of the Crown to govern comes with the condition that Māori are afforded a unique status of protection and consideration. In this way, the Treaty was, and continues to be, a mutual agreement establishing the conditions of a partnership.
 
However, the conditions of this partnership were inconsistently and arbitrarily honoured throughout our history, leading to widespread inequities which Māori continue to be subjected to today. For this to have occurred, they argue, the policy of governments in our history must have distinguished between Māori and non-Māori, whether explicitly or otherwise. Indeed, there are many laws and actions from the government in history that give evidence to this point. This claim is expressed when defending against the accusation that Māori are responsible for driving racial division in this country by responding that Māori as an ethnic group have been marginalised for over a century and they are merely attempting to reclaim their rightful status as Treaty partners.
 
Thus, many recent and current government policies and actions, including Treaty settlements, are about remedying these historic breaches of that agreement, with a view to ensuring Māori are both equipped with the resources needed to reduce, and ultimately dissolve, these inequities while simultaneously placing them as a co-governance partner as implied by the Treaty. Although the Treaty does not specify co-governance directly, proponents of this view argue that the implications of establishing a government while accommodating the right of Māori to manage their own affairs in their own way, necessarily entails some co-government arrangement, or at least an agreement of partnership and co-operation, in the governance of the entire country.

Therefore, proponents of this view argue that both the mere existence of this bill and the principles it posits threatens to revise the terms of an agreement after they have only recently managed to successfully demand that the Crown to recognise and remedy its previous breaches of. This view, which looks at the details, or particulars, of the Treaty by concluding that both the purpose of the agreement and the text in Article Two grants distinct rights to Māori by proposing a mutually beneficial, indeed equitable relationship, may be called the particularist view.

Clearly, both the universalist and particularist positions differ markedly in their understanding of the Treaty and their response to this bill. While, prima facie, both positions appear to hold much merit, further reflection will illustrate that the universalist perspective falls apart at the first hurdle.

Both perspectives point to distinct aspects of the Treaty text in their justification. They also both appeal to a sense of fairness, one in terms of equality and the other in terms of equity. However, the foundational premisses of the universalist position are flimsy. What bolsters this position is an insistence on fairness and equality where all citizens should have the same rights with no group having privileges that another does not. However, it is evident that many groups do have privileges that others do not, even along demographic lines such as age. The universalist may respond by insisting that it is not fair to privilege one racial group over another.
 
But this prompts the question as to why race or ethnicity matters more than any other demographic distinction. For those who insist on equality, one could ask why their sense of fairness is not violated when they hear of age requirements for official privileges such as voting entitlements or receiving superannuation from the government. Or why they are not outraged at the public funding of hospitals exclusively for women, subsidised healthcare for children, disability carparks, student allowances, and even the Gold Card for seniors. These are all examples of privileges that some groups receive that others do not.

Are these not also unbecoming of a modern democracy?

It is difficult to answer this without exploring the possibility that those who only decry the apparent privileges Māori receive are biased against Māori as an ethnic group. If this is the case, then perhaps the accusation of racism is not entirely unjustified.

Regardless, these privileges are afforded as a means of achieving an equitable society where accommodations are made to ensure that all citizens have an equal opportunity to participate in society, despite the barriers and hindrances they might otherwise face. Where the universalist may accuse the particularist of advocating for apartheid – a system of institutionalised racial segregation – the particularist may respond that the unique status of Māori both stems from an equitable agreement of partnership and, in some cases, is intended to remedy past breaches of that partnership. In sum, they would argue that the ‘unfair entitlements’ that Māori are perceived as having are no more unfair than any other instruments of equity that exist in our society.

However, as those other privileges are provided without reference to the Treaty, it is evident that the Treaty must be considered when evaluating these arguments further. Given Article Two, and the moral obligation of the Crown to remedy its past breaches and the inequities that emerged as a result, it appears more than reasonable that both local and national governments make a greater effort to include the voice of Māori in their policy formulation and decision making. While Article Three certainly exists, it should not be interpreted as contradicting the previous article but rather as an additional condition within the Treaty agreement.[6] In other words, the particularist view does not ignore Article Three whereas the universalist view necessarily ignores Article Two.

It cannot be argued that the Treaty is an instrument of universal equality without ignoring the promises of Article Two.

Thus, the universalist view is unavoidably revisionist.

By doing so, the universalist view ignores the purpose and function of the Treaty by insisting that it afford Māori no special rights or considerations. However, one may ask why the universalists do not insist that other agreements and laws specify the rights of all others. For example, if the universalist view was consistently (indeed, universally) applied, one may ask why the Bill of Rights does not include the rights of non-human animals to be protected against abuse, or why an employment contract only allows for the payment of labour to the individual signing it and nobody else. The clear answer is that these concerns misunderstand the purpose of those documents in the first place. An employment contract is an agreement between an individual and their employer, and the Bill of Rights is constitutional declaration of the rights of human persons. Matters of equality are addressed in policies and documents designed from the outset to provide these rights. Indeed, equality across many domains is provided and guaranteed in both the Bill of Rights and the Human Rights Act.

Thus, it is nonsensical to expect the Treaty to perform the same function.
 
The purpose and function of the Treaty is to allow for the establishment, and continued existence of, the Crown’s ability to govern in this country but if, and only if, Māori are afforded the considerations and protections it specifies. To deny this is to deny the current constitutional arrangement underpinning the management of this country. The only other options include establishing separate Māori territories of government, as seen in the United States, or forfeiting the Treaty entirely. Forfeiture must inevitably lead to either the disestablishment of the Crown’s authority to govern in favour of a Māori-led government or forcing Māori to surrender any right to governmental protection and co-governance. That surrender would result in the forced assimilation of Māori in public life, as their traditions, worldview, lifestyle, indeed all aspects of their indigenous identity – must be abandoned in the name of equality. Given the universalists aversion to any form of racial “separatism,” it appears that the first two options are unacceptable, leaving the notion of assimilation the only outcome that dedicated proponents may tolerate. Indeed, this outcome may be welcomed by some universalists given their hostile response to a haka being performed in parliament recently, and their rejection of any sort of initiative that aims to elevate Māori beyond their current state of inequitable vulnerability. This too strongly indicates the presence of a racist bias.
 
Further, it is inappropriate to put an interpretation of the Treaty up for a national referendum. The Treaty is an agreement between Māori and the Crown, and these are the only parties who should be engaged in dialogue regarding its interpretation.
 
Although the constitutional arrangements of this country are, undoubtedly, in the national interest, the current state of affairs suggests that the ability of those in positions of influence to educate the public on this topic have failed to do so accurately and objectively. Indeed, informed and reflective discourse on this topic within mainstream society is, and historically has been, impossible given the heightened emotions it invariably gives rise to.

The universalist perspective interprets the Treaty of Waitangi as a universal declaration of equal human rights for all. However, the argument appears to only argue for racial equality, necessarily ignoring equitable accommodations for other groups. While appealing in theory, this view is harmful in practice, as it disregards the Treaty’s historic purpose and the Crown’s obligations to Māori as Treaty partners. By framing the Treaty as an egalitarian document, the bill risks abolishing Māori cultural rights and protections, fostering assimilation rather than equity. Instead of reducing systemic racism, this approach exacerbates divisions by fuelling misunderstandings and prejudice.

The particularist view aligns with the function and purpose of the Treaty and provides a pathway for remedying systemic inequities. It is also the only view that fosters a truly bicultural society. Although public misunderstandings and prejudicial fears about the position of Māori in this country need to be addressed, this must be done through education and good faith dialogue rather than fuelling further division. While advocates insist that the bill does address these misunderstandings by educating and fostering informed discussion, it is evident that it has failed to do so. Rather, the purpose and content of this bill indicate that it could neither inform nor unite this country.

This leads to the conclusion that this bill creates more problems while solving nothing.

Furthermore, the bill is unnecessary. For years, the Three Ps have provided a clear framework for public and private sectors, ensuring that Māori rights are upheld while fostering partnerships with the Crown. Introducing new principles undermines these established guidelines, adding confusion instead of clarity. This confusion has amplified fears that Māori are being unjustifiably being elevated above other New Zealanders leading to an insistence among many that the Treaty must be a document of racial equality.

However, the Treaty does not privilege Māori above other citizens; rather, it binds the Crown to recognise their unique status and to remedy historic injustices. These measures strengthen Aotearoa/New Zealand’s bicultural foundation, promoting equity and fairness for all. By ensuring that Māori voices are heard and their rights respected, the current framework of principles fosters a modern, equitable society where all citizens can thrive – where all citizens have an opportunity to be equal. This bill threatens that progress, making it both harmful and unnecessary.

Instead of revising the Crown’s interpretation of the Treaty by erasing its purpose, function, and content, the Treaty must be honoured.

[1] https://www.youtube.com/watch?v=4Y-p7M76Yn4
[2] I have the privilege of being able to claim that two of my ancestors signed the Treaty on 17 June 1840; Ngāti Toa chief Nohorua and his Pakeha son in law, Joseph Thoms.
[3]https://www.abuseincare.org.nz/assets/Evidence-library/Part-1/New-Zealand-Maori-Council-v-Attorney-General-1987-1-NZLR-641-CA.pdf
[4] These appear to have been first mentioned in the Royal Commission on Social Policy (1988)
[5] https://archive.org/details/principles-for-crown-action
[6] Consider the oft-cited line in infomercials: “But wait! There’s more!”