Donnelly Brian: Principles of the Treaty of Waitangi Deletion Bill — First Reading 
Donnelly Brian: Principles of the Treaty of Waitangi Deletion Bill — First Reading 
[Volume:632;Page:4462] 
Hon BRIAN DONNELLY (NZ First) 
: 
 I have to say that is wonderful coming as it does from a member who in the 10 years since he has been here has actually produced nothing and who belongs to a party that has produced absolutely nothing. But I do not want to go on to slag them off and do those sorts of things. I ask members to consider a scenario. Let us imagine we had a Crimes Act that simply stated that all people should be good at all times and then we left it up to the courts to determine what was meant by being good. I believe that very very few people would think that was anything but a nonsense. Yet that is exactly what we have with the insertion into legislation of clauses that refer to undefined principles of the Treaty of Waitangi. 
I want to quote from the law professor Matthew Palmer who said: “From a traditional legal perception the Treaty of Waitangi exists in a shadow land—half in and half out of law. It has no legal status in and of itself. In order for the Treaty to be part of the law it has to be made so. The primary way in which this occurs is through incorporation in legislation.” That is the Treaty of Waitangi. 
However the Treaty is itself internally contradictory. It was drawn up by an Irishman who left school before the age of 10 and was too sick at the time he drafted it to even leave the ship based on instructions from someone half a world away. It was then translated overnight by people who were far from being constitutional lawyers and who did not have a deep understanding of te reo Maori—neither Henry Williams nor Edward Williams were experienced translators—into a language that did not have the lexicon of international legal concepts. It was not translated into indigenous Maori but into missionary Maori. 
 The Treaty is not a founding document in the sense of being a constitution but Lord Normanby’s instructions required Hobson to first gain the free and intelligent consent of Maori before he annexed New Zealand. So the Treaty is the document upon which our nation was founded. It is a defining document for our nation in the sense that it spells out a set of enduring relationships. Chief Justice Prendergast got it wrong. It is not a simple nullity; it defines our nation. 
However because of the Treaty’s internal contradictions and its capacity for multiple interpretations lawmakers have been reluctant to insert it directly into legislation. As Matthew Palmer has said the Treaty of Waitangi is not sensibly susceptible to ordinary techniques of statutory interpretation. Instead legislators have inserted the pusillanimous term “principles of the Treaty”—a simple flourish as Geoffrey Palmer referred to the term when he inserted it into the State-owned enterprises legislation. Yet it is his son who demolishes his father’s work. Matthew Palmer argues that if the only point in putting in a reference to the Treaty is symbolic it is unnecessary and unhelpful. If it is to express Treaty implications for that legislation as required by the  
Cabinet Manual 
 since 2001 then that is the civic implication that should be addressed and put into the legislation. 
I make reference to the Education (Tertiary Reform) Amendment Act 2002. Two Labour Ministers on the Education and Science Committee refused to put in any reference to the principles of the Treaty because that was too vague and did not specify exactly what was intended and instead came up with the wording: “The tertiary education strategy must address … the development aspirations of Maori and other population groups.” I will tell people right at the end of this speech who the members were who refused to allow reference to the Treaty principles to go in there. On the basis of that I will rest my case. 
In 2002 New Zealand First decided to test whether the emperor had any clothes on. We asked a number of Ministers what they understood the principles of the Treaty to be. The answers were enlightening. The real doozy came from the then Minister for the Environment Marian Hobbs. She told the House that she knew a certain local body was complying with the principles of the Treaty because it was required to do so under section 8 of the Resource Management Act. But when asked what the principles were that the local body was required to comply with she essentially told us that it was not up to the Government to tell or explain to local government what the principles of the Treaty were. Another Minister of Education said that if we wanted to find out what the principles were we should look at the Education Act 1989. I have to tell that Minister that there is no reference to the principles of the Treaty in that Act. 
I wind up by saying that the two members on the Education and Science Committee in 2002 who refused to allow the insertion of the term “principles of the Treaty” were Nanaia Mahuta and Tariana Turia. I rest my case.