Burton Mark: Treaty of Waitangi (Principles) Bill — First Reading 
Burton Mark: Treaty of Waitangi (Principles) Bill — First Reading 
[Volume:629;Page:1423] 
Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations) 
: 
He Tirohanga o Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of Waitangi 
 is a good text. I recommend it to the member speaking previously and I want to start my contribution on this bill by reading a short piece from it. This is a book that really is about understanding perhaps some of the complexity of the Treaty and how it evolves. It states: “The differences in the Maori and English text of the Treaty of Waitangi have led to different understandings of the meaning of the Treaty. These differences coupled with the need to apply the Treaty in contemporary circumstances led Parliament to refer to the principles of the Treaty in legislation rather than to the Treaty texts. It is the principles therefore that the courts have considered when interpreting legislative references to the Treaty. As Justice McKay noted in the Broadcasting case (1992): ‘It is the principles of the Treaty which are to be applied not the literal words. The English and Maori texts in the first schedule of the Treaty of Waitangi Act 1975 are not translations the one of the other’ ”—I say to Mr Hide—“ ‘and the differences between the texts and shades of meaning are less important than the spirit.’ ” 
I also want to draw to the attention of Mr Hide that as usual he has failed completely to do any real homework on this very inadequate legislation. He referred tonight to the Court of Appeal and to Sir Robin Cooke. I refer the member to the lands case in 1987 in which the Court of Appeal elaborated the principles of the Treaty as required by section 9 of the State-Owned Enterprises Act 1986 he referred to. What he did not refer to was the judgment of the President of the Court of Appeal Sir Robin Cooke who wrote of the principles of partnership acts of protection and redress. Later on in 1989 the fourth Labour Government drawing on the principles that had been delivered to date included past judgments from the courts and published—I say to Mr Hide—a set of five principles to assist the Government when making decisions about matters related to the Treaty. I have referred to those previously in this House. I have made them available to the member and to all members. Clearly again despite putting legislation before this House that member has not bothered even to refer to that document. 
In April 2002 the then Attorney-General the Hon Margaret Wilson advised Parliament that the following are the principles that the Government considers to be relevant—and they still are. I ask members who do care and who keep referring to them and asking what they are to please take note: first the principle of Government: the Government has the right to govern and make laws; second the principle of self-management: iwi have the right to organise as iwi and under the law to control the resources they own; third the principle of equality: all New Zealanders are equal under the law; fourth the principle of reasonable cooperation: both the Government and iwi are obliged to accord each other reasonable cooperation on major issues of common concern; and finally the principle of redress: the Government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur. 
I turn now to Mr Hide’s bill. The bill we are told is being introduced to provide greater certainty of and to reduce confusion about the principles of the Treaty. Unfortunately in my submission it does quite the opposite. Just as the courts have been required to establish what the current principles are the principles in this bill will also require significant interpretation by the courts and like any bill they will get it if it proceeds. 
The bill could have a particularly significant impact on the Waitangi Tribunal by removing its ability to consider claims against its understanding and application of the Treaty principles. That in turn would change the basis on which future claims were considered and lead to inconsistent treatment of those claims that have already been heard compared with those that are still to come. Furthermore the compensation requirements in the bill may leave the tribunal to apply a standard of full market consideration in exercising its binding powers. Consequently the compensation requirements would pose a significant risk to the affordability and durability of previous Treaty settlements. Settlement claims could be compromised to such an extent they would need to be renegotiated. 
Clause 7 prevents the Crown from interfering with property rights without good cause. First that would require the courts to define what is included in the definition of property. Using the two texts of the Treaty—which are included of course as schedules to the bill—as aids to interpretation as the court would a court could reasonably apply a very wide definition to that term to include things such as taonga. The strong property protection proposed in the bill would apply to things such as language Maori family structure and Maori customary knowledge. The member included those as part of his bill—at some unknown cost of course—to all of the above which would mean more uncertainty generated by the bill. 
Secondly the courts would be required to define the term “without good cause” or rather what constituted sufficiently good cause. Members can imagine a court being asked to review a decision to take land under the Public Works Act and trying to decide whether the proposed public work was worthy enough to meet the requirements of this bill. As a matter of fairness the courts would be bound to apply the property protections in clause 7 to any matter involving property rights. In other words the principles of the Treaty as set out in the bill would apply to more situations than they do at present. I seriously doubt whether that was Mr Hide’s intention. 
Clause 8 sets out a number of very worthy rights shared by all New Zealanders equally. Many of these rights mirror those already contained in the New Zealand Bill of Rights Act 1990. However whereas the rights affirmed in the New Zealand Bill of Rights Act are subject to other enactments the rights in this bill have no such restrictions. Parts of existing statutes that require references to the Treaty and are inconsistent with rights in this bill could therefore be impliedly repealed. Surely I say to Mr Hide that is not the intention of his bill. 
Clause 9 tells us there are no Treaty principles other than those included in the bill but it is unlikely that that will truly restrict the courts to those principles alone. Other principles articulated by the courts and the Waitangi Tribunal such as good faith and the duty to make informed decisions have their roots not only in the Treaty but also in general principles of common law. It will require more express language from this Parliament to extinguish such fundamental concepts of the common law. I am not surprised that Mr Hide wants to do that; I am sure that the majority of members in this House do not. 
If it is not the intention to remove these principles from consideration then one is forced to wonder whether this bill serves any purpose in the first place. If passed the bill would create uncertainty about the interpretation of existing statutes and about the extent of private property rights. Most of all it would seriously undermine the Treaty settlement process and most certainly delay it. In the end the only equality the bill will generate for Maori and non-Maori alike is that both will be equally confused about its purpose and effect. For all of those reasons the Labour Party will oppose this bill. 
Mr DEPUTY SPEAKER 
: All other speakers have 5 minutes with a bell at 4 minutes.