CONSTITUTION CONVERSATION FEB JUL. He kaupapa nui te kaupapa ture. Treaty of Waitangi

Transcription

1 THE FEB JUL 2013 CONSTITUTION CONVERSATION He kaupapa nui te kaupapa ture Treaty of Waitangi

2 Join the Conversation There s a Constitution Conversation going on and you re invited to be part of it! A constitution is the set of rules that determines how a country is governed and how its people live together. It reflects the country s unique history, values and aspirations. The Constitutional Advisory Panel is committed to ensuring that you along with your friends, whānau, family, colleagues, communities and iwi have an opportunity to tell us what you think. It s your constitution and your conversation. We invite everyone to submit their views on: What are your aspirations for Aotearoa New Zealand? How do you want New Zealand to be run in the future? Near the back of this booklet, you ll see a set of questions about the role of the Treaty of Waitangi. We encourage you to consider these questions, chat about them with others and send us your views. The role of the Treaty of Waitangi is just one of the constitutional topics that the Panel is considering. The other topic areas are: Māori representation in local and national government. The pros and cons of having our constitution written down in a single document. The role of the Bill of Rights Act 1990 in our constitution. Electoral matters such as the size of Parliament and the length of its term. We want to hear from you! You can make a submission by post, or online. Submissions close on 1 July For more information, go online to or call Join the conversation on Constitutional Advisor y Panel The Constitutional Advisory Panel is an independent advisory group set up to listen to, consider and report on New Zealanders views about a range of constitutional issues. It will report back to the Government by December The Panel members are Emeritus Professor John Burrows (Co-chair), Sir Tipene O Regan (Co-chair), Peter Chin, Deborah Coddington, Hon Sir Michael Cullen, Hon John Luxton, Bernice Mene, Dr Leonie Pihama, Hinurewa Poutu, Professor Linda Tuhiwai Smith, Peter Tennent and Dr Ranginui Walker. For more information about the Panel go to Personal opinions expressed in this booklet do not represent the views of the Panel or the Government. They are presented here to stimulate your thinking and conversations. 2 NEW ZEALAND S CONSTITUTION Treaty of Waitangi

3 The Treaty of Waitangi The role of the Treaty The Treaty of Waitangi is an agreement, written in both Māori and English, between the British Crown and Māori chiefs in It enabled the British to establish a government in New Zealand and confirmed to Māori the right to continue to exercise rangatiratanga. The Treaty is generally regarded as New Zealand s founding document and influences the relationship between Māori and the Crown. Today, the Treaty is one of the factors taken into account when Parliament makes laws or when the courts interpret laws that refer to the Treaty. It also influences public decisionmaking when there is a specific reference to the Treaty in legislation. Did you know? More than 200 British residents petitioned the British Colonial Office throughout the 1830s with complaints about British settler lawlessness becoming so out of control that formal intervention by the British government to protect Māori was necessary. One of those British residents was Church Missionary Society Leader, and co-translator of the Treaty, Henry Williams who wrote: The only protection I can propose, is that the English Government should take charge of the country as the Guardians of New Zealand; and that the Chiefs should be incorporated into a General Assembly, under the guidance of certain officers, with an English Governor at their head, and protected by a military force [not to use against the Māori, but moreso against the corrupting influences of many Europeans!], which would be the only means of giving weight to any laws which might be established, and preserve that order and peace so much required. The natives have for many years proposed that this should be done, and have repeated their desire from time to time. (Source: NEW ZEALAND S CONSTITUTION Treaty of Waitangi 3

4 The Treaty of Waitangi Signing The Treaty was first signed at Waitangi in the Bay of Islands on 6 February 1840 with some 40 chiefs present. It was then taken around the North Island and South Island for signatures in the end 512 chiefs, including men and women, put pen to paper and agreed to the terms of the Treaty. The Treaty of Waitangi is not one large sheet but a collection of nine documents. Eight of the nine sheets were signed in te reo Māori. Only 39 chiefs signed the English sheet presented at Manukau Harbour. Interpreting two treaties Section 5 (2) of the Treaty of Waitangi Act 1975 says the Tribunal shall have regard to the two texts of the Treaty and for the purposes of this Act shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the two texts and to decide issues raised by the difference between them. When interpreting the Treaty of Waitangi, the Waitangi Tribunal has said the principle of contra proferentem applies. This legal principle states when a term is ambiguous, a provision should be construed against the party that drafted it. In the case of the Treaty, it means that the Māori version carries more weight where issues of misinterpretation arise. 4 NEW ZEALAND S CONSTITUTION Treaty of Waitangi

5 The current role of the Treaty Constitutional law experts agree that any discussion regarding future constitutional arrangements for New Zealand will need to address the role of the Treaty of Waitangi. A factor in our constitution Currently, the Treaty is one of the factors that may be taken into account in law-making and public decision-making. Twenty-eight references to the Treaty in Acts of Parliament require public decision-makers to take the Treaty into account in the specific context of the legislation. For example, the reference to the Treaty in the Education Act 1989 does not mean that the Treaty affects all legislation. Generally legislation refers to principles of the Treaty, rather than the Treaty itself. For example, the New Zealand Public Health and Disability Act 2000, provides opportunities for Māori to contribute to decisionmaking and the delivery of health and disability services. Half in half out Sir Geoffrey Palmer QC is a constitutional law expert, a former Prime Minister, Minister of Justice and Attorney- General. He believes the Treaty of Waitangi is an important part of New Zealand s constitutional arrangements and that organised government in New Zealand stems from the Treaty. In 1986, he unsuccessfully proposed that the Treaty be added to the Bill of Rights and be given a higher legal status (supreme law). The difficulty with the Treaty is, we say it s constitutionally important but it s not even in the legal system. It s half in and half out of the legal system, let alone the constitution. So you see there really has to be a systematic approach to deciding what its legal status is. SIR GEOFFREY PALMER QC NEW ZEALAND S CONSTITUTION Treaty of Waitangi 5

6 The current role of the Treaty Treaty principles Because of the differences between the two texts of the Treaty and the need to apply the Treaty to changing conditions, attempts have been made to distil a set of principles from the Treaty. The term principles of the Treaty of Waitangi is sometimes used in legislation, but the principles are not defined. The Courts and the Waitangi Tribunal have played key roles in defining the meaning of the Treaty, using principles to express the mutual obligations and responsibilities of the government and Māori. The list of Treaty principles is not definitive and continues to evolve as the understanding of what it means to be a Treaty partner evolves. While the lack of a finite list of principles provides flexibility for the Crown- Māori relationship to develop in line with the Treaty, it can be the cause of frustration for those who seek clarity and certainty of meaning. It is possible to view the principles as a pragmatic way of enabling decisionmakers to give effect to the spirit and intent of the Treaty, without being limited by the differences in the wording of the Treaty. Removing any references to the Treaty in legislation David Round is a lecturer at the University of Canterbury Law Department. He specialises in legal history, jurisprudence, constitutional law and environmental law. He is a regular writer and commentator on Treaty and racial and cultural conflicts, in academic articles and across mainstream media. David believes giving overriding legal standing to the principles of the Treaty would be disastrous for the country. Once Treaty principles were in a constitution, all our laws and legal arrangements would be open to challenge in the courts for failure to provide what the principles require. If Treaty principles are supreme, then not only laws but Parliament s allocations of money will be subject to the Court s direction. If Treaty rights required more taxpayer money for Māori health, social welfare, anything, the constitution would justify it. DAVID ROUND 6 NEW ZEALAND S CONSTITUTION Treaty of Waitangi

7 The Waitangi Tribunal The Waitangi Tribunal is an independent commission of inquiry. The Tribunal looks into historical and contemporary breaches of the Treaty. It makes recommendations to the government based on its findings. Did you know? When it was first established in 1975, the Waitangi Tribunal was only given powers to examine contemporary Crown breaches of the Treaty occurring on or after It wasn t until 1985 that the time frame for its inquiries extended to include any and all historical acts or omissions since the signing of the Treaty. Recent governments have committed to a deadline for resolving all historic breaches of the Treaty of Waitangi. Historic settlements are full and final. Recent Treaty settlements have played an essential role in resolving breaches of the Treaty by the Crown. The settlements acknowledge acts or omissions by the Crown that have resulted in loss of land and access to, and use of, Māori taonga, including forests, waterways and other natural resources. The settlements also provide opportunities for iwi to secure their involvement in decision-making on natural resources. A restoration of mana Tom Roa is the Chair of Te Ara Taura, the executive board of Te Kauhanganui Incorporated that was established as a result of the Waikato-Tainui Treaty settlement. He states that Waikato-Tainui saw the settlement as a means of returning to the tribe the honour that it lost with the raupatu (confiscated lands). Since settlement in 1995 he reports that its commercial arm, Tainui Group Holdings Ltd, generates $5 million annually which is redistributed to the iwi through various grants and scholarships. The tribe also provides direct support to marae clusters throughout the Waikato-Tainui region. Tom Roa would like to see the Treaty of Waitangi have an overriding influence in our constitution. NEW ZEALAND S CONSTITUTION Treaty of Waitangi 7

8 Perspectives Tom Roa Recognition of the Treaty in our constitution acknowledges that Māori are the indigenous people of this land. The Treaty should not be merely an addendum to, or an inclusion in the constitution it should be a foundational element of it. Updating our constitutional arrangements is also an opportunity to address or remove the institutional racism that has become the norm in some of our public offices. TOM ROA Chair, Te Ara Taura, Executive Board, Te Kauhanganui Incorporated Emeritus Professor Sir Mason Durie Emeritus Professor Sir Mason Durie is a noted academic who has published extensively on a range of Māori health and social issues, and the role of Crown and Māori relations in future constitutional arrangements. Professor Sir Mason Durie s view is that in recent years the Treaty s importance has stressed the significance of the Crown-Māori relationship with a strong historic focus. Over the next few decades, he believes, international relationships and future developments will shift the debate to a global arena and an agenda for tomorrow. The standing of Māori in Aotearoa and beyond will not be defined solely or even mainly by notions of legal sovereignty or rights conferred through the application of the Treaty. Many of those rights actually pre-dated the Treaty. But in any event, rather than authenticating the Māori position only in the law, Māori authority will increasingly be a product of demographic significance, economic might and international recognition. SIR MASON DURIE 8 NEW ZEALAND S CONSTITUTION Treaty of Waitangi

9 Dr Nin Tomas Dr Nin Tomas is an Associate Professor at the Faculty of Law at the University of Auckland. Her teaching and research have a two-fold focus: the English common law as it has been applied in New Zealand and elsewhere, and the development of a modern system of law based on customary concepts and principles derived from a uniquely Māori world view. In my view the Treaty of Waitangi should not be included in a written constitution because it is the bedrock upon which the constitution sits. So long as Māori are part of Aotearoa New Zealand it would always protect our voice against an erring majority, minority and government. A written constitution should incorporate its values for the time. Later on we can change it because it s not sacrosanct in the same way the Treaty of Waitangi is. DR NIN TOMAS Once the Treaty is in a written constitution, then the interpretation which judges put upon it will be binding on us and beyond argument forever. Given the clear pro-māori political bent which some members of the judiciary already shamefully display, they should be the last people to be let loose on the Treaty. DAVID ROUND For more information, go to: The Treaty of Waitangi website: The Encyclopaedia of New Zealand: teara.govt.nz/en/constitution The Waitangi Tribunal website: The Constitution Conversation: NEW ZEALAND S CONSTITUTION Treaty of Waitangi 9

10 The topic questions are a guide to help you with your submission. We welcome other comments on the topics. What do you think? We invite you to think about and submit your views on: 1. Thinking of the future, what role do you think the Treaty of Waitangi could have in our constitution? 2. Do you think that the Treaty should be made a formal part of the constitution? Why? Submissions can be made online, by or post. If you have any questions about how to make a submission, please call You can make a submission in a number of ways: Make a submission online at a submission to constitutionalreview@justice.govt.nz with CAP submission in the subject line. You can attach documents to your . Post a submission to: Submissions Secretariat, Constitutional Advisory Panel C/o Ministry of Justice DX SX10088 Wellington Submissions close on 1 July NEW ZEALAND S CONSTITUTION Treaty of Waitangi

11 Glossary Attorney-General: The Attorney-General is a member of the Government. He or she is the senior law officer of the Crown, with principal responsibility for the Government s administration of the law. Crown, the: A term often used as the equivalent of the state. Usually includes the head of state, Ministers and government departments. Seen to give continuity to the state as a whole while individual office holders come and go. Government: The government the Prime Minister and Ministers sets New Zealand s policy direction and asks Parliament to make or change laws to implement their policies. Legislation: Laws that are passed by Parliament or under the authority of Parliament. The main sorts of legislation are Acts and regulations. Mana: Power, prestige, authority. Parliament: In New Zealand, Parliament consists of the House of Representatives and the monarch. Parliament makes laws and monitors Government. Rangatiratanga: Chieftainship, right to exercise authority, self-determination. Supreme Law: A law that has higher legal status than other laws, meaning Parliament must only pass laws that comply with supreme law. The Courts could strike down inconsistent law. New Zealand has no supreme law. Tangata Whenua: People of the land. Iwi: Tribe. Hapū: Sub-tribe. Raupatu: The word means to confiscate or take without authority but when used or referred to in an English language context describes the Crown s acts of land confiscation. NEW ZEALAND S CONSTITUTION Treaty of Waitangi 11

12 Be part of the Constitution Conversation: THE FEB JUL 2013 CONSTITUTION CONVERSATION He kaupapa nui te kaupapa ture Talk to whānau, friends and family. Access resources online at org.nz or order them by calling Meet with colleagues, iwi or community groups to discuss these issues. Find out what others are saying by visiting our Facebook page at TheConstitutionConversation Take some time and start reading. Make a submission! Be part of it! Our constitution is the set of rules that determines how this country is governed and how we all live together. It s your constitution and your conversation TOW_1