New Zealand Parliamentary Debate

Principles of the Treaty of Waitangi Deletion Bill [4463]

the law it has to be made so. The primary way in which this occurs is through incorporation in legislation. That is the Treaty of Waitangi.

However, the Treaty is itself internally contradictory. It was drawn up by an Irishman, who left school before the age of 10 and was too sick at the time he drafted it to even leave the ship, based on instructions from someone half a world away. It was then translated overnight by people who were far from being constitutional lawyers, and who did not have a deep understanding of te reo Maori-neither Henry Williams nor Edward Williams were experienced translators-into a language that did not have the lexicon of international legal concepts. It was not translated into indigenous Maori but into missionary Maori.

The Treaty is not a founding document in the sense of being a constitution, but Lord Normanby's instructions required Hobson to first gain the free and intelligent consent of Maori before he annexed New Zealand. So the Treaty is the document upon which our nation was founded. It is a defining document for our nation, in the sense that it spells out a set of enduring relationships. Chief Justice Prendergast got it wrong. It is not a simple nullity; it defines our nation.

However, because of the Treaty's internal contradictions and its capacity for multiple interpretations, lawmakers have been reluctant to insert it directly into legislation. As Matthew Palmer has said, the Treaty of Waitangi is not sensibly susceptible to ordinary techniques of statutory interpretation. Instead, legislators have inserted the pusillanimous term principles of the Treaty-a simple flourish, as Geoffrey Palmer referred to the term when he inserted it into the State-owned enterprises legislation. Yet it is his son who demolishes his father's work. Matthew Palmer argues that if the only point in putting in a reference to the Treaty is symbolic, it is unnecessary and unhelpful. If it is to express Treaty implications for that legislation, as required by the Cabinet Manual since 2001, then that is the civic implication that should be addressed and put into the legislation.

I make reference to the Education( Tertiary Reform) Amendment Act 2002. Two Labour Ministers on the Education and Science Committee refused to put in any reference to the principles of the Treaty because that was too vague and did not specify exactly what was intended, and instead came up with the wording: The tertiary education strategy must address... the development aspirations of Maori and other population groups. I will tell people, right at the end of this speech, who the members were who refused to allow reference to the Treaty principles to go in there. On the basis of that, I will rest my case.

In 2002 New Zealand First decided to test whether the emperor had any clothes on. We asked a number of Ministers what they understood the principles of the Treaty to be. The answers were enlightening. The real doozy came from the then Minister for the Environment, Marian Hobbs. She told the House that she knew a certain local body was complying with the principles of the Treaty because it was required to do so under section 8 of the Resource Management Act. But, when asked what the principles were that the local body was required to comply with, she essentially told us that it was not up to the Government to tell or explain to local government what the principles of the Treaty were. Another Minister of Education said that if we wanted to find out what the principles were, we should look at the Education Act 1989. I have to tell that Minister that there is no reference to the principles of the Treaty in that Act.

I wind up by saying that the two members on the Education and Science Committee in 2002 who refused to allow the insertion of the term principles of the Treaty were Nanaia Mahuta and Tariana Turia. I rest my case.

Hon GEORGINA TE HEUHEU( National):

National supports the Principles of the Treaty of Waitangi Deletion Bill. Steve Maharey seemed to indicate that National