New Zealand signs too many treaties - over 1900 of them, not including UN declarations.
Declarations are legally non-binding. But as the recent fury over the review of a UN declaration demonstrates, declarations do have consequences.
Our Ministry of Foreign Affairs has never seen a UN treaty it does not want to sign. From experience, I can advise that the Ministry says to Cabinet: "This treaty will have no effect on any existing law or policy. Our international reputation will be damaged if New Zealand does not sign".
A busy Cabinet, with almost no debate and no consultation, gives the treaty a tick. We always discover treaties do have consequences. Treaties limit government by the people.
Perhaps as much as 40 per cent of government policy is the result not of decisions of Parliament and elections, but treaty obligations.
It is fundamentally undemocratic. We should sign no treaty without parliamentary approval.
When John Key decided to accommodate his Māori Party coalition partner by signing the Declaration of the Rights of Indigenous Peoples, I am sure he was told New Zealand would not have to change any law or policy.
The He Puapua report commissioned by Cabinet in 2019 on how to implement the declaration concedes that New Zealand is a global leader in recognising indigenous rights. The report writers seized on Article 39, calling for the upholding of treaties with indigenous people, to say New Zealand must fully implement Te Tiriti o Waitangi. It is a radical, anti-democratic, 20-year plan to an equal power-sharing arrangement.
The report is not calling for the implementation of the treaty Governor Hobson wrote. He Puapua wants the implementation of a radical reinterpretation of the Treaty by the Waitangi Tribunal.
The tribunal says Māori never ceded sovereignty and the Treaty has created an equal partnership. No court has ever ruled that the Crown does not have sovereignty. No court has said it is an equal partnership - just that the relationship between Crown and Māori is similar to a partnership. While the tribunal's interpretation of the Treaty cannot be legally challenged when it is considering a claim, the courts have said it is for the courts, not the tribunal, to determine the legal meaning of the Treaty.
It is the problem when you decide the purpose of government is implementing a 181-year-old treaty rather than the democratic will of the electorate. What the Treaty means becomes very important.
The Ministry of Health website makes it clear the ministry believes its task is to implement the Waitangi Tribunal's interpretation of the Treaty.
A separate Māori Health Authority was not set up because Māori health outcomes are a national disgrace, as they are. A separate Māori Health Authority is being set up because the ministry believes it is a treaty right.
In the Cabinet paper, Andrew Little said: "The system does not operate in partnership or meet the Crown's Te Tiriti o Waitangi obligations ... The guarantee of tino rangatiratanga, which provides for Māori self-determination and mana motuhake in the design, delivery, and monitoring of primary health care."
The Government, or at least the civil service, is implementing the Treaty as reinterpreted by the tribunal to produce a roadmap similar to the one outlined in the He Puapua report for separate health, justice and welfare systems, Māori governance over resources and a Māori parliament. In short, setting up indigenous sovereignty.
We are entitled to know if this is Labour's agenda.
David Lange observed: "We can have a democratic form of government or we can have indigenous sovereignty. They can't coexist and we can't have them both."
Judith Collins and David Seymour say they support a literal interpretation of the Treaty that supports democratic values. To quote Collins: "Article 1 ... establishes the Queen as our sovereign. Article 2 ... confirms the property rights of all people" and Article 3 ... all people have the same rights." She adds, "the preamble states that the intention of the Treaty was to promote peace and avoid lawlessness".
Why can't Jacinda Ardern say what is her interpretation of the Treaty?
The writers of He Puapua say they wrote their report to start a conversation. Jacinda Ardern says she too wants a conversation. Suppressing the report and refusing to participate is an odd way to hold a conversation.
Professor Jack Vowles is right. "If the Government is serious about He Puapua, it will explain its own position more fully, and if it wishes to pursue that agenda, or significant parts of it, it should set up the framework for a further constitutional debate to which all New Zealanders can contribute".
The one body that has never stated the Treaty principles is Parliament. The Prime Minister must make a statement to Parliament setting out her Government's position on the Treaty. Then the democratic thing to do is seek parliamentary approval.
- Richard Prebble is a former leader of the Act Party and former member of the Labour Party.