Why does Caritas disagree with the proposed Treaty Principles Bill?

The recently proposed Treaty Principles Bill has drawn much controversy and debate. Caritas Aotearoa New Zealand strongly opposes the Bill. At face value, the principles it suggests seem to align with Catholic social teaching principles – so why are we opposed?

What does the Bill propose?

The Treaty Principles Bill provides three proposed principles of Te Tiriti o Waitangi / The Treaty of Waitangi, which would guide policymakers and courts implementing Te Tiriti. These are:

1. 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.

2. Rights of Hapū and Iwi Māori: The Crown recognises the rights that hapū and iwi had when they signed the Treaty. 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.

3. 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.

These principles could be described as rule of law, property rights, and equality under the law – all of which are basic and important legal principles strongly supported by Catholic social teaching. Caritas does not oppose any of these concepts in and of themselves. However, whether we believe these three principles convey the meaning of Te Tiriti o Waitangi is a very different question.

The text of Te Tiriti has stood through our nation's history

Do these principles align with the text and spirit of Te Tiriti?

This article is not long enough to delve into historical textual analysis, and we strongly encourage you to do your own research, but the short answer is absolutely not. Translators, historians, iwi, Church leaders and the Waitangi Tribunal all agree that the Treaty Principles Bill severely distorts the text of Te Tiriti and its principles do not make sense in light of the historical and cultural context of its signing.

Proponents of the Bill claim it is not seeking to change Te Tiriti, but only the ‘Treaty Principles’ which have been developed by the Courts. However, these principles are derived from the text and context of Te Tiriti, and have become the guide for how its text should be implemented in legislation and policy – so any change that distorts the Treaty Principles away from the original text would change how Te Tiriti is upheld.

Can we change Te Tiriti?

Some people think it would be better for the Government to extend these commitments to all New Zealanders – indeed, in the spirit of human dignity, we expect all people are treated equally and their rights are respected. But this does not give us the right to change an existing agreement the Government has made.

The New Zealand Catholic Bishops have taught for decades that Te Tiriti is a covenant, and one which binds New Zealanders to honour the commitments made in it. Many Māori (and Pākehā) are strongly committed to the principles and promises of Te Tiriti, and see it as the founding basis for our nation. We cannot simply rewrite this agreement to suit our own agenda.

But what about democracy?

Some people argue it is wrong for the principles of the Treaty to be developed through the courts, and that it would be better for the public to decide (i.e. via referendum). If you think about Te Tiriti as a set of laws this might make sense, but it is not a law. Te Tiriti is a treaty agreement – essentially a contract.

Even if you do not personally agree with or care about Te Tiriti, it is a basic principle of law that a contract cannot be altered without the agreement of both parties. If you were a landlord with boarders in your house, and you had a disagreement with them over the terms of their tenancy, you wouldn’t take it to a household vote. Just because there are more tenants doesn’t mean they should be able to dictate by majority whether they pay rent! If you couldn’t agree you would take it to court to be interpreted and decided impartially, taking into account all the evidence to discern the original and reasonable meaning of the contract. This is exactly the approach taken with disputes over Te Tiriti, the principles of which are developed according to evidence to help interpret its intent and meaning.

We aren’t at all suggesting Te Tiriti is like a tenancy agreement, but if we think about it fundamentally as a contract it is easier to understand why a simple majority vote wouldn’t have the moral legitimacy to change it. True participation and subsidiarity in this context would require both parties to the contract to come to an agreement – something the Treaty Principles Bill does not represent.