Finlayson Christopher: Principles of the Treaty of Waitangi Deletion Bill — Second Reading 
Finlayson Christopher: Principles of the Treaty of Waitangi Deletion Bill — Second Reading 
[Volume:643;Page:12880] 
CHRISTOPHER FINLAYSON (National) 
: 
 National supported the Principles of the Treaty of Waitangi Deletion Bill to go to the select committee at its first reading because we thought that there was an issue of principle that needed to be looked at. But having considered the evidence heard the submissions and looked pretty closely at the bill the National Party has concluded that the bill is poorly drafted and that no real effort has been made by New Zealand First to repair the obvious mistakes. So we cannot and will not support the second reading of the bill. 
In my speech I want to deal with three issues. First I will address the point raised by Mr Paraone about exactly what these principles of the Treaty are. He asks a fair question he deserves an answer and he will get one. Secondly I will analyse the bill and thirdly I will look at the New Zealand First response some of which was dealt with by Mr Paraone in the speech he has just given. 
There has been a lot of talk over the years about vague references to these principles of the Treaty. Indeed when the Law Commission made a submission to the Health Committee on the New Zealand Public Health and Disability Bill in about 2000 it urged Parliament to provide courts as far as possible with guidance as to its precise intention when referring to the principles of the Treaty of Waitangi. It is fair to say in fairness to Mr Paraone that in some legislation one cannot discern exactly what Parliament intended when it referred to the principles. But in most of the legislation we deal with I think it is tolerably clear and in answer to the specific question raised by Mr Paraone about exactly what the principles mean I can go no further than to repeat what Lord Woolf said in the Privy Council when delivering the advice of that body in  
New Zealand Maori Council v Attorney-General 
 in 1994. He stated that both the Treaty of Waitangi Act 1975 and the State-Owned Enterprises Act 1986 referred to the “principles” of the Treaty and “In their Lordships’ opinion the ‘principles’ are the underlying mutual obligations and responsibilities which the Treaty places on the parties. They reflect the intent of the Treaty as a whole and include but are not confined to the express terms of the Treaty. (Bearing in mind the period of time which has elapsed since the date of the Treaty and the very different circumstances to which it now applies it is not surprising that the Acts do not refer to the terms of the Treaty). With the passage of time the ‘principles’ which underlie the Treaty have become much more important than its precise terms.” In my first reading speech I referred to the work that had been done by the Law Commission which in various cases over the years has given people a pretty good understanding in most cases about what exactly the principles of the Treaty are all about. So I think the question that Mr Paraone has raised generally lacks merit. 
In looking now at the bill which is the second thing I will do I say that it comprises four classes of statutes—general legislation private Acts settlement legislation and a couple of important Treaty statutes. There are references in general legislation and by and large I think they could benefit with some redefinition. A good example of legislation that sets out the Treaty obligations very well is the Public Records Act of 2005 which interestingly was not referred to by Mr Paraone in his legislation. Section 7 of that Act sets out the fundamental principle that in order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi certain sections will provide x y and z. I think that that is a very good way of drafting and I think that the Minister in charge of that legislation Marian Hobbs did a good job there because that is an example of a good definition of exactly what the principles are supposed to be. Some of the general legislation could benefit from a tidying up but doing it in omnibus legislation is not the way to do it; it requires focus on the particular legislation and the particular aims of the legislation. 
The second category is private Acts; for example the Royal New Zealand Foundation of the Blind Act or the Royal Society of New Zealand Act. These private Acts contain Treaty clauses and they were passed as we all know for the benefit of particular individuals or legal persons. It seems to me to be inappropriate where bodies like the Royal Society of New Zealand or the Foundation of the Blind have come to Parliament and asked for legislation that has a Treaty clause in it to be passed that we should unilaterally remove that clause without at least consulting those individuals. 
The third category of legislation is settlement legislation. This category comprises statutes where there is no need for amendment as in many instances they contain acknowledgments of breaches of the Treaty by the Crown. I refer for example to the Ngati Tama Claims Settlement Act of 2003 and the Ngai Tahu Claims Settlement Act of 1998. I cannot see that there is any justification for removing references to the Treaty or the principles of the Treaty from that legislation. 
A couple of important Treaty statutes require close consideration. The first is the Treaty of Waitangi Act 1975 from which Mr Paraone seeks to delete any reference to the principles of the Treaty. But such an amendment would remove the very jurisdiction of the tribunal which was established to investigate breaches of the Treaty. How can one responsibly remove that provision from the 1975 Act? 
Hon Georgina te Heuheu 
: They don’t even know it existed. 
CHRISTOPHER FINLAYSON 
: In answer to what my friend Mrs te Heuheu says I agree that I do not think they even knew it existed. 
The second important Treaty issue concerns section 10(a) and (b) of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 which remains in force even though the Maori Fisheries Act 1989 has been repealed. The Hon Shane Jones would know all about that. There are references to the Treaty there and it is fair to say that they could be tidied up. For example section 10(a) provides that claims by Maori in respect of non-commercial fishing “Shall in accordance with the principles of the Treaty of Waitangi continue to give rise to Treaty obligations on the Crown;”. I think that reference to Treaty principles in section 10(a) is meaningless and it could simply be amended to read that any claims shall continue to give rise to Treaty obligations on the Crown because that is what article 3 of the Treaty provides. 
In looking at the four categories then I say that in respect of general legislation some refinement along the lines of the Public Records Act would I think be useful. In respect of private Acts there is no justification for change. In respect of settlement legislation there is definitely no justification for change and in respect of the important Treaty statutes there is no justification for change. So when one looks at the four categories one sees really that this legislation lacks merit. What is more it is disappointing that in a bill like this the member did not list all statutes that contain references to the principles of the Treaty and so on. 
Finally I want to look at New Zealand First’s response which was petulant. Having thundered from the pulpit about activist liberal judges and having brought in the example of South Africa New Zealand First members after receiving submissions that responded in equally strong terms said they were very disappointed because they wanted to have a principled discussion of the matter. They said that people should not have reacted to rhetoric but should have dealt with the substance of the legislation. With respect to Mr Paraone I say that that is a joke. If one goes down that cheapskate rhetorical kind of road one will get submissions—and there were a lot of submissions—that will respond to it. My advice to New Zealand First is not to misuse the member’s procedure in the future. If that party is going to introduce legislation like this it should do its homework and at least find out which legislation contains the references then work out what really has to stay and what can be properly finessed along the lines of the Public Records Act. 
Mr Paraone is quite right that there is an issue here but New Zealand First did not do very well with this bill at all. For that reason the National Party will not be supporting its second reading.