Why the Waitangi Tribunal ‘should be disestablished’ - Richard Prebble

Around 500 Māori chiefs signed the Treaty of Waitangi in 1840.

THREE KEY FACTS

• The Waitangi Tribunal is holding an urgent hearing on the controversial Regulatory Standards Bill.
• Critics, including Māori leaders, argue the bill lacks a Treaty clause and could impact Māori rights.
• David Seymour says the bill reduces red tape and improves lawmaking transparency, but 88% of submissions oppose it.

The Waitangi Tribunal is holding an urgent hearing to possibly summon David Seymour and declare the Regulatory Standards Bill a breach of the Treaty.

The coalition Government has decided it has had enough. An advisory committee is being tasked with determining how the tribunal can be returned to its original role.

The problem is in the instructions Parliament gave to the tribunal in its founding legislation.

Parliament set up the tribunal with the laudable aim of ensuring the Crown was meeting the pledges given to Māori in 1840.

The intention was that the tribunal would rule on any breach of the Crown’s undertakings, recommend remedies and so end grievances.

Instead, the legislation set the tribunal up as a commission of inquiry to declare Treaty principles and any breach of the principles.

This was an invitation to lawyers, revisionist historians, linguists, radicals and Māori Land Court judges to discover Treaty principles.

The opportunity arises from the translation of the Treaty.

There were no words in te reo for concepts like sovereignty. There were many at Waitangi who spoke English and te reo. No one at the time disputed the accuracy of Henry Williams’ translation.

While some chiefs may have regretted signing the Treaty, no signatory is recorded as later saying sovereignty was not ceded.

Any translation provides scope for endless debate. Consider the disputes by linguists over the interpretation of biblical words.

For the first 30 years, the tribunal determined that sovereignty had been ceded and did assist the Crown to settle long-standing grievances.

Then the tribunal decided that it was not bound by its previous rulings, the courts or Parliament.

The tribunal is claiming to be the sole authority of what is a Treaty principle, a sort of constitutional court. It is now holding hearings on what is New Zealand’s constitution.

In addition to declaring there are two treaties that contradict each other, the tribunal claims to have the authority to pick and choose principles from the treaties and declare new ones.

The principles of partnership and co-governance are not in either version. They are 21st-century inventions.

It is destabilising. When the tribunal can change its determinations and declare new principles, no one can predict what the Treaty principles will be tomorrow. The tribunal could determine that Governor Hobson and the chiefs opposed having regulatory standards.

What Parliament should have done was have the tribunal ensure that the Crown meets the Treaty commitments that the Crown did make.

We have Governor Hobson’s instructions and his own written words. There is no dispute about what the Crown intended.

The Crown offered its protection. Defence of the country and keeping the peace are the first duty of the state. This was significant in 1840. The Musket Wars had raged for 30 years killing, enslaving or making refugees of a third of the Māori population.

Second, the Crown promised to protect property rights. Freedom is compromised if the state can take our property without compensation.

Third, the Crown offered British citizenship. All the rights of the Magna Carta. Equality before the law and access to the courts for justice.

These promises by the Crown are just as valuable in 2025.

Perhaps Governor Hobson should have included Treaty principles, but he did not.

The principles are a later invention leading to never-ending grievances and a runaway tribunal.

Parliament needs to return to its original purpose of ensuring that the Crown is honouring promises that Governor Hobson made.

In international law, for a treaty to be binding there must be consensus ad idem, both parties must have mutual agreement on the essential terms.

If the tribunal is right that the chiefs and Governor Hobson fundamentally misunderstood each other, then legally there is no Treaty.

This rewrite of history is nonsense and is not a reason for the Crown not to honour the undertakings it intended to make and did make.

We do not need Treaty principles, not the tribunal’s nor David Seymour’s, worthy as they may be.

The Crown honouring its Treaty obligations does not prevent the Crown from doing more but anything extra is not a Treaty obligation.

We have never needed a commission of inquiry, which is what the tribunal is, to declare Treaty principles. We have known since 1840 what the Crown pledged. The tribunal should be disestablished.

Parliament needs to legislate that wherever the words “Treaty principles” appear in legislation, that these words refer to the undertakings given in Governor Hobson’s own written words.

What is needed is a way to ensure that the Government is honouring Governor Hobson’s commitments.

The place to hear claims is the courts. Where claimants believe the Crown is not meeting its Treaty undertakings, they should be able to bring a case to the High Court.

Should it discover a breach the High Court has demonstrated the judges will not hesitate to issue a declaration.