No Right Turn: Not Just About Treaty Clauses

When Labour chose to rely on New Zealand First for confidence and supply, it knew it would have to swallow some dead rats. One of those rats is on the menu tomorrow, in the form of Doug Woolerton's Principles of the Treaty of Waitangi Deletion Bill - and Labour's Maori MPs are already gagging. And who can blame them? The bill is an attack on Maori, which seeks to strip all references to the Treaty of Waitangi from legislation (including, ironically, several formal apologies in Treaty Settlement bills, the repeal of which could cast those settlements into doubt). But its worse than that, because the bill wouldn't just repeal the various "Treaty clauses". It would also repeal the jurisdiction of the Waitangi Tribunal to consider some claims, and to compensate some successful claimants.

The guts of the bill is section 4(1), which repeals a long list of enactments. Exactly what they do can be seen in the relevant bills digest. But right at the end, by which time everyone would have stopped paying attention, is this little bit:

(za) section 6(1)(d), section 8(1), and section 8HB of the Treaty of Waitangi Act 1975.

What do those clauses do? Section 6 of the Treaty of Waitangi Act 1975 establishes the basic jurisdiction of the Waitangi Tribunal to hear claims. Section 6 (1) (d) includes in this jurisdiction

any act done or omitted at any time on or after the 6th day of February 1840, or proposed to be done or omitted, by or on behalf of the Crown

This may be bad drafting - the clause is encapsulated by conditions which include a reference to the "principles of the Treaty", and repealing it alone would not prevent the Tribunal from considering past ordinances and regulations, or proposed policies or practices - but "act[s] done or omitted" is somewhat broader than that, and in the context of the other changes, the repeal is somewhat suspicious. Repealing the encapsulating clause would effectively strip the Waitangi Tribunal of all jurisdiction.

Section 8 allows the Tribunal to consider legislation referred to it by resolution of the House, or by a government Minister, to determine whether it is "contrary to the principles of the Treaty". To my knowledge it has never been used (the government will not refer legislation itself), but is in principle the same as the requirement of the Attorney-General to advise on consistency with the BORA.

Section 8HB allows the Tribunal to recommend the return of crown forestry land subject to a well-founded Treaty claim. Repealing it would effectively mean that some claimants might not be able to be compensated by the return of their land, unless it is vested in an SOE.

These aren't "Treaty clauses" by any stretch of the imagination. While they contain the phrase "principles of the Treaty of Waitangi", they don't govern the broad interpretation of legislation. Instead, they actually do things - and things that actually matter. Either NZ First has been doing some very sloppy drafting, or they are attempting to put one over on Parliament. And given the absence of this clause from the version of the bill which was put to the House in June last year, I'd suspect the latter.

And worst of all, Labour is going to vote for this. They have no choice, but it still stinks to high heaven. Regardless of whether it passes or fails, the Maori Party will crucify them for it - and Labour will deserve every bit of vituperation they get over it.

ENDS

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