Cullen Michael: Principles of the Treaty of Waitangi Deletion Bill — Second Reading 
Cullen Michael: Principles of the Treaty of Waitangi Deletion Bill — Second Reading 
[Volume:643;Page:12882] 
Hon Dr MICHAEL CULLEN (Minister in charge of Treaty of Waitangi Negotiations) 
: 
 It is my pleasure to speak today on the second reading of the Principles of the Treaty of Waitangi Deletion Bill in my first speech as the Minister in charge of Treaty of Waitangi Negotiations. I might say that I find myself in a dangerous level of agreement with Mr Finlayson on this particular matter. I trust we will not hear speeches about the two tired old parties ganging up on this particular matter as I suspect there are a number of “untired” younger parties who will also be opposing the passage of this particular legislation. 
I agree with Mr Finlayson that there are some statutory references particularly in some of the older statutes which could do with more particular contextual reference to make it clear what the principles are in that particular case. It is interesting that the case he cited of the archives legislation is a much more recent piece of legislation since the Government adopted the approach of giving a more detailed contextual reference rather than simply a vague reference to the principles of the Treaty of Waitangi. I think we will need to continue as legislation comes up for renewal and review to work through some of those clauses to make sure that that reference continues to be updated and modernised. 
This bill—the Principles of the Treaty of Waitangi Deletion Bill—is an overly simple attempt to resolve a complex issue that faces us as a nation. Quite obviously it is how we achieve a sound and enduring basis for the relationship between Maori as New Zealand’s first peoples and those of us in this country who arrived later. I find it very strange for Mr Paraone to say that any reference to the Treaty or the principles of the Treaty is by itself race-based legislation. It is a kind of cheap logical trick—if I may be permitted to say so—in the middle of that. Obviously one partner in the relationship is Maori and that therefore if you like is race. But then to move from that to argue that the legislation is race-based seems to me to make a giant leap that has got a little bit of logic but not much else to justify that kind of statement. 
The Crown actually represents the whole of New Zealand which by definition is a very broad collection of different peoples and races including Maori. In other words in the relationship say between the Crown and Ngati Whatua the Crown in that respect represents all other Maori as well as all other New Zealanders in relationship with Ngati Whatua. There is no such thing as a kind of collective or whole of Maori that the Crown has a relationship with and that indeed itself would be a misreading of the Treaty. Strictly speaking the relationship of course is with hapu but increasingly in recent times the relationship has tended to be at the iwi level. 
The Treaty is a document of significant constitutional importance. It is the basis for the ongoing relationship between the Crown and Maori and although it may have fallen into abeyance in the 19th century in many respects nevertheless it has been revitalised during the 20th century and into this century. Although it is incorporated into our constitutional arrangements it has to be a matter of ongoing discussion but it is clearly a question that requires a considered approach and ultimately mutual agreement between the two parties to the Treaty. Any change to that approach has to be consensual between Maori and the Treaty partner the Crown in that respect. Unilaterally seeking to delete all references to the principles of the Treaty in legislation without reference to the wider question of the Treaty’s constitutional place one can end up in a very very difficult position indeed. 
Incorporation of the principles by and large is an important and appropriate mechanism to ensure that the Government considers and meets its obligations as a Treaty partner and appropriate references to the Treaty provide a baseline level of protection to ensure the Crown meets those obligations. Removal of those references would undermine the partnership between the Crown and Maori and undermine Maori interests and rights under the Treaty. As Mr Finlayson said removing the reference from section 6(1) of the Treaty of Waitangi Act 1975 would render that inoperable arguably leaving the tribunal with no jurisdiction to hear claims. We might just as well repeal the whole Act as opposed to simply removing reference to the principles of the Treaty. What would the tribunal be doing at that particular point? 
There also arises the issue of the removal of the references to the principles of the Treaty in sections 8(1) and 8HB of the Treaty of Waitangi Act 1975. The bill would remove the ability of the court to consider and apply the principles of the Treaty. It is worth remembering that those principles have now been the subject of 20 years of judicial and policy work identifying the principles in particular contexts applying them to real issues: how the Crown should deal with historical and modern injustices how it should make decisions that involve Maori and how Maori can have input into those decisions. That covers at the moment an extraordinary range of things going on: issues around climate change; issues around the sustainable water programme; issues around forests in general—all these things and many other issues still ongoing around fisheries and fisheries management. All these involve the Treaty relationship and cannot avoid the Treaty relationship. 
Even if this Parliament got cute and tried to remove the references to the Treaty the courts themselves would still intrude those references back into the consideration of the jurisprudence around those kinds of matters and properly so in fact. Many of the pieces of legislation affected by this bill represent hard-won and important compacts between the Crown and Maori—as I said the 1975 Act. The very apologies the Crown has offered for serious historical grievances could be effectively revoked by this bill opening up Treaty settlements already concluded yet again and so we would go around in those circles yet again. 
As I say the Government has moved in a variety of ways to incorporate references to the Treaty in legislation more appropriate to specific pieces of legislation and the particular issues that arise in the context of that legislation. We need to think about the way we move forward but this legislation is not in my view a way of moving forward. In the end this is a way of creating further confusion which would not help Pakeha New Zealanders it would certainly not help Maori New Zealanders it would not help the Crown-Maori relationship and it would throw us into a state of very considerable confusion—ironically and I have to say this to Mr Paraone probably leaving members of the judiciary in a stronger position to impose their own particular views and interpretations rather than to be guided by Parliament in that respect.