Mush ado about ACT's (revised) Treaty Principles Bill.

 

Cartoon by Nick Kim

We now have our first look at the wording to be used in ACT's proposed Treaty Principles Bill. 

You'll recall that the aim of the Bill is not for Parliament to redefine Te Tiriti, which lacks too much to ever become a fully-founding document in any case, but to define —for the first time — the Principles that Geoffrey Palmer and followers began inserting into law without definition, and without any guidance to the courts. Which left the courts (and the self-serving Waitangi Tribunal) to simply make them up. And has transformed Te Tiriti into a welfare cheque for tribal leaders.

The Bill's proposed wording is grouped under three headings, to match the three Treaty/Tiriti articles: 

1. Civil Government; 
2. Rights of Hapu and Iwi Māori; and
3. Rights to Equality.

David Farrar has helpfully laid out the proposed wording against both ACT's initial proposal and the official "Kawharu" translation of Te Tiriti. It's quickly apparent that the weasel words of "partnership" and "participation" haven't been slipped in. And that "protection" only occurs in association with the word "rights," as it did in the original document. But also that a whole lot of precision has been lost. Much has been added to dilute the impact of the previously clear exposition of principle. Politically-necessary mush perhaps, but mush is mush, gumming up the finely-grinding machinery of law.

And what's been lost, I think, is the clear Lockean principle of the Treaty: i.e., that tribal sovereignty was being ceded in return for protection of natural rights, including the right to private property. In which case, is anything to be gained by the Bill?

Let's have a look article by article ...

The First Article is the sovereignty article. About who governs. Which this says, in so many words. But in bending over backwards to avoid the 's' word, a whole lot of mush has been added. Remember that good, objective law should be rights-based, and allow you to know in advance what you can and can't do by law — and since law is, or can be, a matter of life and death, one needs to know with precision. So what the hell does "in the best interests of everyone" mean precisely? How will the courts decide (since it is they, and the Waitangi Tribunal who will interpret this in their own best interests) what should be done for "the maintenance of a free and democratic society."

The Second Article used to be known as the Property Article. The recognition of the property held by tribes and tribal leaders,  and the insistence that government agents would have a coercive monopoly in buying it from them. So, about property rights, and how they're transferred. The Bill however now suggests the principle to be drawn from this clause is one about rights in general. Which is a different thing (especially since bogus "rights," requiring the labour of others, are being constantly added and expanded).

"The Crown recognises the rights that hapū and iwi had when they signed the Treaty." What were those rights? More mush. The Bill would again require the courts and Waitangi Tribunal to decide — oh, and they will! And remember that these are phoney collective rights, not individual rights. (And to thrive here as equals, as I've said before, we need to take off our collectivist lenses.)

And what's this? "Those rights differ from the rights everyone has a reasonable expectation to enjoy ..." Really? Oh: " ... only when they are specified in legislation, Treaty settlements, or other agreement with the Crown."  Ah: meaning that any explicitly race-based legislation etc. has to be explicit in its racial favouritism. Which is probably about as much as one can now expect, but much less than one would have hoped for. 

And, as everywhere else in New Zealand law, property rights have disappeared.

This Article has suffered the least damage in the re-write. And as an added bonus, the concept of "duties" has been lost, and "protection" clarified to be about protection by law, an equal protection, not about unspecified welfare claims for "ordinary New Zealanders," i.e., Māori (which is how this clause has begun to be interpreted by activists and the Tribunal). So maybe an improvement through the added mush — though a clear contradiction with the second article: how, for example does one enjoy "the same fundamental human rights without discrimination" if government can legislate for collective 'rights' for hapū and iwi that "differ from the rights everyone [else] has a reasonable expectation to enjoy"?

The answer, of course, is at the back of the next Tribunal report. Just under the money-amount awarded to claimants.

Remember that the words "the principles of the Treaty of Waitangi" have been inserted at the heart of every second bill that's passed through Parliament, so any mush injected here would infect every second law everywhere.

And it's now full of mush.

That's not an improvement.

The Bill may not be successful by the standard of "will it be passed into law." But it's already wildly successful by the standard of "let's talk about these made-up principles, and about what they should be."

But I'm not sure these re-writes should be part of law.