Former National minister says Treaty Principles Bill 'irretrievably flawed'

Former National Minister Hekia Parata said the Treaty Principles Bill is "unreliable and unnecesary," recommending the Justice Select Committee report the "irretrievably flawed" bill back to the House, and "waste no further resources nor our nation's tolerance."

Parata and former Labour prime minister Sir Geoffrey Palmer were among those making submissions on Thursday as the Justice Select Committee resumed hearings on the bill.

The committee is due to hear 80 hours in total of submissions on the controversial bill over the course of a month.

Parata said the principle of equality was well known to New Zealanders.

"My issue is not that we need new principles. We need those that we already have to be practised and to be practised fairly and justly across all New Zealanders."

Parata argued there had been a persistent conflation of the collective rights held by iwi, hapū and tāngata whenua, which are practised and related only to their specific rohe (region) and the individual citizenship rights Māori have as New Zealanders, which they are free to exercise anywhere they choose to make their home in this country.

"It is this persistent failure of public policy and public management that creates many of the misunderstandings that New Zealanders have."

She said "marches up and down the country" will continue, unless "we really tackle this issue of the definition of rights and the right holders and the circumstances in which those can be exercised."

Parata said it's "ironic" the courts are identified as a key institution of democracy, but "because the current set of judgments and principles aren't agreed with, then we must start again."

"I think that's an absolute nonsense."

She was also disappointed the Treaty Principles Bill was part of a National-led coalition.

As the MMP system matures here in New Zealand, she said she thinks parties will get better at negotiating shared outcomes, "rather than simply, this is my patch, and I'm heading in that direction, this is my patch, and I'm heading in that direction."

"I'm very proud of the national government that I was a part of."

"We saw and understood that iwi were rights holders and were committed to resources and the development of our country, and that we could get done more together, then separately, and that's what the treaty anticipated."

Partnership 'pure fantasy'

Julian Batchelor - representing Stop Co-Governance - made his submission using a presentation on the English text of the Treaty of Waitangi, arguing there would be no need for Treaty Principles if the "true, bonafide, English final draft of the Treaty was in the Treaty of Waitangi Act 1975."

Using the English text he said the British said they would "set up a government in these islands."

Batchelor said there is no mention of "partnership" in the Treaty, nor that the British would only rule over British settlers.

"Why are these ideas blatantly and obviously missing from the plain reading of the entire Treaty" he asked. "Because those ideas don't exist in the Treaty. They're simply not there. They're pure fantasy. They are modern day inventions."

He said any party or MP who says the Treaty is a partnership is not just "intellectually lazy, but they're also delusional, or deliberately and knowingly lying to the people of New Zealand."

He said it's "oxymoronic" for a country to be both a sovereign and a partner.

"Partnership and sovereignty are mutually exclusive concepts. The idea that the treaty is a partnership is the greatest lie to ever come out of the courts."

Batchelor said "judges are not gods," they're just people, and people are "fallible and very capable of corruption."

"We ought to never accept their judgment when these judgments contradict the plain reading."

'Unprincipled bill'

Maui Solomon, a barrister and indigenous rights activist, followed, saying chiefs and tribes signed the Māori text of Te Tiriti, which guaranteed them rangatiratanga - or sovereignty.

He said it's a fiction that Māori ceded sovereignty.

"The statement that these chiefs and these rangatira would voluntarily give up their tino rangatiratanga, or their sovereignty, to a Queen sitting over in London is to use Mr Batchelor's words 'absolutely delusional'. Did not happen."

He added that had been upheld by the Waitangi Tribunal.

Solomon called it an "unprincipled bill" and said David Seymour's statements that he wants to start a public debate are "baseless" and "do not withstand even the briefest scrutiny."

"Firstly, the debate first started in 1835 when the northern chiefs and tribes, very publicly and internationally, declared their sovereignty and independence."

Solomon added that was recognised by King William the Third, "he endorsed the declaration."

He said if Seymour expected Māori to have confidence this house will serve their interests when "184 years of legislative experience suggests otherwise, you gotta be kidding."

Horiana Irwin-Easthope, Managing Director of Whāia Legal, called the bill a "legal absurdity".

"It is a legal absurdity in that whilst proclaiming in the very text of the bill itself to not be amending the Treaty of Waitangi, that is exactly what it is attempting to do."

She added, in her opinion, it was absurd to be taking time away from "critical issues that this nation needs to address" to sit here and "entertain what I say is a colonial fictional monologue."

Irwin-Easthope also used her submission to speak to her son, asking him to "please retain hope."

"Retain hope that actually, the conversation and the blip that I believe this is in our history will pass and that one silver lining that may come out of this situation is that we reflect, as New Zealanders and as a nation on who we want to be, who we want to be moving forward, and the beautiful place that Te Tiriti O Waitangi could play in that future with all of us."

She spoke of hope because she had a "genuine belief that it will be different tomorrow, maybe not literally tomorrow, but certainly sooner than it has been."

She recalled her mother asking her grandmother to name her with a Māori name.

"She had not allowed the name to be given to any of her other mokopuna because she was racially ridiculed for the name. My mother said to her 'there is another day coming.'"

"That day has come. I do not personally receive racial attacks on the daily for my name, and I believe that that is an example of, albeit small, steps towards a nation that is less racially divided."

Bill damages 'fabric of the nation'

Sir Geoffrey Palmer said the Treaty Principles Bill has been a "fundamental exception" to a "proper policy process," and it has "damaged the collective fabric of the nation."

If the public are going to have a conversation, he said, they have to have a proper policy process that's been "worked through with documents that are authoritative, accurate and carefully researched before any bill is ever introduced."

That would require in depth analysis, in-departmental consultation and discussions, and Māori would be consulted, he argued.

"Instead, what we've seen is the bill that has clogged up the house with more than 300,000 submissions, wasted a tremendous amount of time and money, and it has damaged the collective fabric of the nation."

Palmer said you did not have a policy process that starts with a bill, a policy process "ends with the introduction of a bill."

"And that is the basic flaw which this ill-considered Bill has suffered from, and it ought to be cured in the future."

He explained ministers must confirm that Bills comply with certain legal principles or obligations when submitting them to be included in the legislative program.

"In particular, ministers must draw attention to any aspects of a bill that have implications for or may be affected by the principles of the Treaty of Waitangi."

He said that is because the Treaty is binding on New Zealand.

"That is the normal way in which policy is made in this Parliament. This has been a fundamental exception to that. This has been an extraordinary legislative process, and it ought never to be repeated."

In his long career of studying the New Zealand constitiution and being an actor in it, the former Prime Minister added, he never thought it "would ever be necessary to have a discussion of the sort we've been having here this morning."

"It's sad, but we have to find positive ways through it."

Palmer thinks the National party made a mistake agreeing to the policy, and that they'll be "regretting it."

KC Karen Feint who submitted alongside Palmer added it showed a "lack of statesmanship on the prime minister's part that he agreed to it in the first place."

"It takes the country back decades from the progress that we've made."

Feint was part of an open letter from around one quarter of KCs in the country, opposing the bill.

"There was a widespread consternation and concern at this bill and the way it's upending the settled, legal and constitutional arrangements that have been very carefully progressed over the past five decades."

Bill a 'stable platform' for building nation

Immigration advisor Stephen Norrie submitted in favour of the bill because he was concerned about the trend over recent decades taken by "our judiciary and our political elites" in interpreting what the "so-called principles."

He said partnership was a modern construct, and has the "flaw of creating different rights between Māori and non-Māori."

"The reaction recently against Three Waters and the Māori health authority show the strength of public feeling about different rights.

"For the long term and sustainable harmony of our society" he argued, it is "imperative that we have well defined treaty principles that recognise the importance of Te Treaty as our founding constitutional instrument."

Norrie said they needed to be democratically accepted too, indicating the importance of a referendum on the issue.

"This is a matter that cannot be left to political and social elites or an unelected judiciary."

He said the bill may "not be perfect", but if it was allowed to become law and the referendum is successful, "it should provide a stable constitutional platform on which we can continue to build our nation."