New Zealand Parliamentary Debate

Principles of the Treaty of Waitangi Deletion Bill [4454]

been given. There is no clear definition on widely diverse interpretations of what the principles might mean in certain circumstances. The simple answer is that the definitions have not been defined and they cannot be, and we believe they should be removed. Again, I repeat that this is not an attack on the Treaty. This is not an attack on the position of the Treaty either in the laws on our statue book or in our country, or on the work that the Treaty of Waitangi builds upon year after year. We believe that both in our day-to-day lives and the way our caucus is made up, and in the discussions we have in this Parliament, we are sympathetic to the Treaty of Waitangi and the objects of it. But we think it demeans the Treaty if words are put in it that cannot be defined and that lead-in my words-to a bun fight on every single bit of legislation. We do not believe that is good for the country, we do not believe that is good law, and we seek, by this bill, to remove that word principles.

CHRISTOPHER FINLAYSON( National):

National supports the first reading of the Principles of the Treaty of Waitangi Deletion Bill but says there is much work to be done on it at the select committee stage. I observe that if all parties treat this matter seriously, rather than simply posturing, there is an opportunity to make considerable improvements to the law.

I begin by making a brief comment about what I regard as an intemperate and crude populist remark contained in the explanatory note to the bill. I am referring to the comment about the task of interpreting such clauses having fallen to judges who have taken an increasingly activist, liberal, and broad licence in providing a form of definition. In my experience, there are two kinds of judges: conservative and very conservative. The suggestion that these clauses are being interpreted by wild-eyed liberals is insulting to the judiciary. Any problems that have arisen with Treaty clauses are because this place has either failed to provide an adequate definition of what Treaty principles are or has mindlessly inserted them in legislation in an inappropriate way. This is an opportunity to tidy things up.

As Mr Woolerton observed, there is no comprehensive or authoritative list of principles of the Treaty of Waitangi, but guidance can be obtained from some judgments, and I also refer to the Law Commission's study paper, Maori Custom and Values in New Zealand Law, where there is a very interesting and useful discussion about Treaty principles. Interestingly, that report referred to a submission the Law Commission had made to the Health Committee on the New Zealand Public Health and Disability Bill 2000 urging Parliament, so far as possible, to provide the courts with guidance as to its precise intention when referring to principles of the Treaty of Waitangi in legislation. The commission noted that those who are required to comply with a statute must be able to ascertain with some degree of certainty what they have to do, or omit to do, in order to comply. The undesirability of resolving uncertainty by reference to a court was expressly noted, but needless to say the Law Commission's submission was ignored by the Government.

This really is a pretty second-rate piece of work by Mr Woolerton. An example of his inattention to detail can be seen in his seeking to repeal Treaty references in repealed legislation. The Foreshore and Seabed Endowment Revesting Act 1991 and the Maori Fisheries Act 1989 have been repealed, and I very much look forward to Mr Woolerton, or Mr Donnelly, saying something about what exactly New Zealand First is hoping to achieve by deleting Treaty references from repealed legislation.

R Doug Woolerton

: I'll have to sack the lawyer.

CHRISTOPHER FINLAYSON

: Yes, the member will have to sack the lawyer who drafted it! But it is the member's name that is on the bill, and he bears the responsibility for this kind of sloppiness.