GUEST BLOG: Geoff Fischer – Mission Accomplished: The Treaty Principles Bill

There is general agreement that the ACT Party’s Treaty Principles Bill is going nowhere.

To be precise, that it will not get past the first reading in parliament because the National Party has now said unequivocally that it will not support a second reading and we can take the party at its word in this matter, even if not in any other.

It is not hard to see that the bill is bad law, bad politics and evidence of shoddy thinking on the part of its drafters.

So how did it even get this far?

Why try to flog a dead horse into the House of Parliament?

Why squander the time of that august institution and the wealth of the taxpayers who fund it?

The ACT party seem to be saying that it is being done to give the public a chance to debate serious constitutional issues.

It is all about democracy and giving a voice to the people.

But parliament is not a debating chamber for the general public.

Speeches are not permitted from the public gallery (although waiata may be these days).

Even in select committee the public are only present to make submissions to, and answer the questions of, elected representatives.

They are not there to debate among themselves.

Public debates are held in the press, over the airwaves, on social media, in town halls, on the street or absolutely anywhere but in the house of parliament.

So ACT’s stated reason for bringing the bill to the House is unpersuasive, and National’s reason for supporting it to the first reading is even less persuasive.

A common view is that a proportion of voters who supported the ACT party at the last election are, to put it bluntly, anti-Maori and that ACT has to throw them a bone in order to win their vote next time around, presumably in 2026. National, for its part, needed to humor ACT in order to form a coalition and so we have the charade of the Treaty Principles Bill first reading and public submissions.

This sounds rather disrespectful of the institution of parliament which is supposed to be a legislative assembly committed to serious and effective law-making, rather than a place of political theatre.

That may be one of the reasons why Winston Peters, who has a genuine respect for the institution, has not joined Christopher Luxon in unequivocally declaring that he will refuse the bill a second reading.

Having said all that, the bill does have a serious purpose which does not require that it ever comes close to becoming the law of the Realm.

To understand that purpose we have to step back to early 2016 and the iwi document “He Whakaaro Here Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa – the Independent Working Group on Constitutional Transformation” followed by the better known “He Puapua” which was “the 2019 report commissioned by the New Zealand Government to inquire into and report on appropriate measures to achieve the goals set out by the United Nations Declaration on the Rights of Indigenous Peoples”.

These initiatives were representative of attempts within Maoridom to fashion a system of “co-governance” with the Crown which honoured Te Tiriti o Waitangi.

Though well-intentioned and based on the principle collaboration between Maori and the Crown, once they came to light for the general public they excited immediate and ferocious opposition stirred up by the ACT Party, New Zealand First, the Hobson’s Pledge organisation, media personalities usually categorised as “far right” and political journalist Christopher Marshall Trotter (about whom I will have more to say later).

At this point I should disclose that I believe that He Puapua and its antecedents were deeply flawed and were “never going to fly” for two reasons.

Firstly, because a formal collaboration between the Crown and Maori could always be interpreted or represented as a threat to the “equal status” of non-Maori New Zealanders who constitute more or less 80% of the population.

Secondly because the Crown has always been duplicit in its dealings with Maori and it seems naive to suppose that it was about to change its character of the past 184 years.

Even if we charitably retract the notion of “duplicity”, the Crown has always been an unreliable partner for Maori and the simple mechanics of the electoral cycle will see it remaining that way.

The problem is that Matike Mai Aotearoa, the Independent Working Group on Constitutional Transformation, which was formed at a meeting of the Iwi Chairs’ Forum at Haruru in February 2010, carried with it the hopes of many Maori for a Maori-Crown collaboration which honoured te Tiriti.

The group had conducted hundreds of hui around the motu, and its large team had worked tirelessly to develop the proposals which later surfaced as He Puapua.

When the right (including Chris Trotter) successfully turned He Puapua into an election issue those Maori who had shepherded the idea of Crown-Maori collaboration saw themselves cut off at the pass.

The real purpose of the Treaty Principles Bill is not to be enacted as would normally be the case for a legislative proposal.

The bill was never going to make it into law, anymore than He Puapua was going to form the basis of a new constitution.

The sole purpose of the bill was to proclaim to Maori from the seat of government that co-governance was a dead duck.

So now we have two dead ducks, He Pua Pua and the Treaty Principles Bill, to be buried in the same hole.

This is how “Treaty partnership” ends.

For the right and for the Crown that would indeed be the end of the story.

But not for Maori.

We have seen the full range of reaction in protest from Maori: hikoi, hui, protest marches, strikes, road blocks, public statements, and a wave of social media outrage.

Perhaps most telling was the incandescent rage of Kiri Tamihere-Waititi, Te Pati Maori Chief of Staff on Tik-Tok (June 2024?).

Her anger is understandable, because despite its reputation as a “radical Maori nationalist” party, Te Pati Maori as a parliamentary party has nowhere to go if the door is closed to meaningful collaboration between the Crown and Maori. Kiri’s speech has been decried as a “rant” and a “rave” and denounced for “profanity” by the same right-wing players who damned He Puapua and orchestrated the Treaty Principles Bill.

However Christopher Trotter, speaking to Sean Plunket on The Platform, responded rather more rationally, warning that Tamihere-Waititi’s speech may be representative of widespread anger among Maori, and that it would be wise to call a constitutional convention in order to deal with that anger.

Trotter, if not exactly ahead of the game, is certainly ahead of many of the less astute players on his team. He sees that in accomplishing its mission of fatally striking down Matike Mai and He Puapua the Treaty Principles Bill generated anger on a scale that is difficult to assess but is certainly substantial, and which may open Maori up to more revolutionary strategies than Crown-Maori collaboration based on Te Tiriti.

Therefore he is suggesting a constitutional convention as a way to side track Maori and those non-Maori who are sympathetic to Maori or who find the present colonialist regime in any way problematic. A constitutional convention called by the Crown carries with it certain risks for the regime, but those risks can be managed far more easily than a massive wave of grass-roots anger which might evolve into a revolutionary movement for social and political change.

However I suspect that the time for such a Crown orchestrated “constitutional convention” may already have passed. The regime has stuck doggedly to its imperial connections for 184 years, with successive heads of the colonialist government arguing that while independence (mana motuhake) is “inevitable” it “will not happen on their watch”.

Meanwhile the situation on the ground has been shifting inexorably.

Tangata motu no longer need an avenue provided by the regime in order to advance the cause of rangatiratanga. It is happening independently. A constitutional convention clearly designed to sideline this organic evolutionary process may be no more likely to succeed than the well-intentioned He Puapua or the deliberately mischievous Treaty Principles Bill.

Mr Trotter may be left holding the body of a third dead duck to be thrown into the same hole as the first two.

Colonialist politicians constantly proclaim their desire to avert social or ethnic division and to promote a “constructive public conversation” about constitutional issues, yet everywhere they knowingly sow discord and seldom do they facilitate genuine pubic debate about the nature of New Zealand’s colonialist society.

So it must fall to tangata motu to establish kotahitanga among our people, to develop the principles of rangatiratanga, and to restore mana motuhake through te Whakaminenga.