Donnelly Brian: Principles of the Treaty of Waitangi Deletion Bill — Second Reading 
Donnelly Brian: Principles of the Treaty of Waitangi Deletion Bill — Second Reading 
[Volume:643;Page:12894] 
Hon BRIAN DONNELLY (NZ First) 
: 
 I want to commence by saying to members of the House that since we left here at 6 o’clock I have been involved in a Maori language lesson. It was very very intensive but I have to say te reo Maori Kuki Airani. 
As I sit and listen to the slings and arrows of the outrageous criticism of New Zealand First I cannot help but feel like Galileo must have felt when under torture he recanted but at the same time he whispered: “But the earth still goes around the sun.” The issues that are inherent in this particular legislation which have been presented in a distorted fashion by a number of speakers—in fact many of the speakers—will not go away. They will continue to be here and will continue to be issues that have to be addressed. 
The most unfortunate distortion which has been peppered through many of the speeches has been the suggestion that New Zealand First through this legislation is attempting to delete any reference to the Treaty of Waitangi or in fact to delete the Treaty altogether. The Treaty is a historical fact and is the document upon which our nation was founded. We cannot make it go away unless we want to change our history—not only the history of 1840 but our history ever since that particular time. Anyone suggesting that New Zealand First is trying to get rid of the Treaty of Waitangi is either being mischievous ignorant or malevolent. 
Georgina te Heuheu is of course correct. In 1840 there were two Treaties and the Maori version was the one that was signed by most people. But we need to realise that the two versions are quite inconsistent. For example article 1 in the English version refers to sovereignty; we all thought that sovereignty was what had been signed away. In fact in the Bible the missionaries had translated the word “sovereignty” as “mana”. It was well known by the missionaries who were translating the Treaty that no Maori chief would ever sign away mana so they changed the word to “kawanatanga” which is a transliteration of “government”. The word was used in the Bible; kawana was the position held by Pontius Pilate and the Maori leaders would have known the powers that Pontius Pilate held. But certainly there is a difference between the words “sovereignty” and “government” that are in the two versions. 
We have to recognise that as distinct from the expertise available to the Americans when they were developing their founding document Hobson was certainly no academic or constitutional lawyer—in fact he left school at 10 he was Irish and he spent most of his time on ships. Obviously he was literate but certainly he was no scholar in this particular sense. He made a valiant attempt to put together his instructions. Nevertheless we are left with a document that is very difficult to put in place as it is. 
Previous Governments have come up with this term of “the principles of the Treaty”. Why is New Zealand First concerned about this? It is purely and simply because the term has been put into legislation without any cognisance of what it actually means. Shane Jones our new Minister said we should all know what the term means and that it has been defined by Lord Cooke of Thorndon. That was in the Lands case where it was defined specifically in relation to lands with reference to the three Ps: protection participation and partnership. But I suggest that anybody who goes to any of our health boards where people have to draw up the principles of the Treaty will not find two that are exactly the same. 
In fact in this House in 2002 we asked a series of questions of Ministers. First we asked the Prime Minister where the principles were written down. She said she was not aware they were written down anywhere. We then asked the Minister responsible for Treaty settlements and she gave us the principles upon which the settlements were to occur—not the principles of the Treaty but another set of principles. We asked the Minister of Education and he said: “Look in the Education Act.” There is only one reference in the Education Act and that is in terms of the governorship of tertiary institutions. 
But the doozy of the lot was when we asked the Minister of Local Government how the ministry ensured that the principles of the Treaty were put in place. She said that the ministry required all local authorities to ensure that the principles of the Treaty were complied with and that the principles were in their documents. We then asked her what those principles were that she required the local authorities to comply with. She said to us: “It’s not up to us to tell the local authorities what the principles of the Treaty are.” Herein lies the issue that New Zealand First is trying to address in this particular legislation. If there was a set of principles that we could all agree to and was easy to find then I guess we would not even be looking at this. 
We in New Zealand First would like to refer to a paper that was written in I think 2000 by Matthew Palmer the son of Sir Geoffrey Palmer. Sir Geoffrey Palmer was the one who put the reference to the principles of the Treaty in the State-Owned Enterprises Act. When asked why he was doing it he made the comment: “It’s just a simple flourish.” That is what led to the Lands case and to judgments made by Lord Cooke of Thorndon and people like David Baragwanath. Matthew Palmer argued that it was not good enough to put in legislation just an ethereal principle of the Treaty clause. He said that people have to look at the legislation and spell out in more precise language what the obligations were for the Crown flowing from the Treaty of Waitangi and—if they wanted to use the term “the principles of the Treaty”—from the principles of the Treaty itself. 
So what are those obligations that flow out in terms of legislation? It is quite ironic that Dr Michael Cullen and a number of people have spoken eloquently about the need to preserve “the principles of the Treaty” clauses in all our legislation. We have just had legislation go through our Education and Science Committee in which there was no reference to the principles of the Treaty of Waitangi. Some of the submitters argued very strongly that there should be. Interestingly enough the Minister for Tertiary Education did not think it was a good idea to put a clause about the principles of the Treaty into that legislation. 
The question has to be: if these clauses about the principles of the Treaty are so good why would people not put it in the legislation in this case? The reason is that the legislation already holds a clause—that is believed anyhow—which was put in place by Maori MPs. I can remember when that was done. It spelt out more clearly what the obligations through the tertiary education system to Maori people were under the Treaty of Waitangi. The legislation talked about meeting the developmental aspirations of Maori people. In other words it took the principles concept and codified it more directly in terms of what that legislation needed to do so the compliance could be measured against that. If for example the legislation does not bring about the developmental aspirations of the Maori people we can say it is not being complied with. But if we had a clause about the principles of the Treaty in there we would not know what we were talking about. 
That is exactly what this Principles of the Treaty of Waitangi Deletion Bill is about. It is not about trying to get rid of the Treaty of Waitangi; it is not about playing a race card as has been suggested. To those people who think it is about trying to get 5 percent at the next election I say “How stupid.” This was put into the confidence and supply agreement with Labour following the last election. 
It is good that this legislation is being discussed and debated. If there are flaws in the legislation that have been exposed that is probably good too because that is part of the open discourse that we have. But let me say and say it once again that there has never been any intention in this legislation to deny the place of the Treaty of Waitangi in our society or to deny the importance of that Treaty in our society both today and into the future. Any suggestion that that is the case is not us playing the political card it is other parties playing that card. That I guess is what I take greatest offence at—that where people are attempting to try to do something that an esteemed academic like Matthew Palmer has suggested should be done we are then being accused of all of those terms etc. That is unjust and unfair because people are playing that card for their own political ends and not for the end of the development of the nation.