Hidden in Plain Sight: Libertarian Ideals Presenting as Treaty Principles

When Equality Means Property Rights: Unpacking the Missing Definitions of the Proposed Treaty Principles

Opinion & Analysis

New Zealand is on the verge of sweeping constitutional reforms that could reshape how laws are made and interpreted, with impacts for the rights and lives of all New Zealanders.

The Treaty Principles Bill (TPB) has faced criticism for removing te Tiriti o Waitangi’s legal influence, though its potential legal impacts extend much further.

Positioned as promoting equality and human rights, its principles appear liberal and neutral. However, its provisions – particularly when paired with the lesser-known Regulatory Standards Bill (RSB) – could emphasise values such as property supremacy, minimal government intervention, and individual autonomy in constitutional law.

The two Bills could fundamentally change how legislation is developed and interpreted, with significant implications for all New Zealanders. These changes risk establishing a restrictive constitutional framework prioritising individualism and property rights over collective well-being, environmental protections, and Indigenous rights.

Now in the select committee stage, the TPB’s definitions and far-reaching implications—extending well beyond te Tiriti and Māori—remain poorly understood.

Redefining our constitutional settings

ACT Party leader David Seymour calls the TPB a chance for New Zealanders to shape their constitutional future, disregarding that te Tiriti is a binding agreement. ACT claims the TPB does not ‘rewrite’ the Treaty because the 1840 text is not being directly altered. However, as the open letter from the Kings Counsel confirmed, the Bill does redefine both the Treaty principles and the legal interpretation of the Treaty itself – in effect, altering its meaning in law.

While ACT says the Bill confirms the rights held by Māori in 1840, it limits them to only those provided for in historical settlements, resulting in a substantial reduction in Māori social, participatory and constitutional rights. This approach ignores that the Crown’s very authority under te Tiriti was based on recognising and guaranteeing the pre-existing rights of Māori in 1840.

The TPB’s stated aim of ensuring equality has been questioned, given that mechanisms like the Bill of Rights Act already provide such protections. ACT also argues that the notion of fundamental human rights is incompatible with Indigenous rights, framing Māori rights as stemming solely from ethnicity.

ACT’s stance is out of step with international norms, disregarding successful and respected models in nations like Sweden and Canada. It also undermines New Zealand’s post-World War 2 legacy as a global leader in human rights, and our reputation for advancing Indigenous rights.

Seymour claims the TPB realigns New Zealand’s constitutional course with the intent of te Tiriti while also acknowledging, at times, that the Bill instead reflects what he believes the Treaty should mean for us today and that the proposal is based on what he considers best for New Zealanders in the long term – two distinctly different positions.

Liberal values or libertarian rights?

The TPB uses phrases that appear fair and reasonable on the surface, such as “equality before the law”, “without discrimination,” “free and democratic society”, “fundamental human rights”, and “the rule of law”.

While these principles may seem universally appealing, their libertarian interpretations diverge significantly from common usage. Their meanings revolve around individualism, property rights, and minimal government intervention, potentially limiting measures like affirmative action and environmental and social protections.

This Bill could advance these ideals across legislation by reframing familiar terms and te Tiriti to align with ACT’s libertarian philosophy. Indeed, ACT claims the TPB offers “dignity and respect for all” and that it is “inspired by the creative powers of a free society” – slogans aligned with global libertarian ideals.

ACT’s rhetoric provides further insight, conflating tino rangatiratanga – a primarily collective right guaranteed to hapū and iwi under te Tiriti – with individual self-determination and private property rights. They further promise the TPB will protect these for all New Zealanders, misinterpreting a cherry-picked phrase which, in the context of te Tiriti, guarantees tino rangatiratanga to the Indigenous people only.

Libertarian views on "fundamental human rights" emphasise negative rights – freedom from state interference with individual autonomy and property rights – while often opposing positive rights, like access to education, healthcare or environmental protection.

While many of us understand “without discrimination” and “equality before the law” as principles for combating prejudice and addressing structural inequities, libertarians interpret them as opposing measures like graduated taxation or public services, viewing such policies as discriminatory and violations of property rights, including income.

Most of us see “the rule of law” as a framework that serves the interests of all, ensuring accountability for governments and politicians, advancing collective goals, addressing inequalities, and promoting public welfare while upholding individual freedoms. Libertarians, however, interpret it more narrowly as a tool to limit state power and protect individual liberty and property rights.

Rather than being neutral or simply removing Treaty related barriers to development, the proposed Treaty principles could create a legal framework favouring property rights at the expense of social protections and environmental safeguards. Election results indicate limited public support for the values ACT seeks to embed in law.

Upending the legal environment

The TPB’s interpretation of te Tiriti has been described as legally and linguistically flawed, conflicting with established interpretations of the Treaty. Much less discussed is how ACT define the Treaty principles they promote and how courts would interpret them. Despite ACT’s stated goals, the TPB could create legal uncertainty due to conflicting interpretations of the Bill itself, as well as te Tiriti, potentially leading to prolonged litigation.

Ironically, the courts – which ACT has criticised for their interpretations of the current Treaty principles – would be tasked with deciphering this new framework, potentially exacerbating the issues that ACT say they want to address.

When questioned about the TPB, Seymour often shifts the discussion to issues like crime, housing, education and employment, asserting that the Bill will enable us to address these challenges. Without a clear grasp of the ideological underpinnings of the proposed principles, this approach could appear to be a diversion. However, it reflects ACT’s belief that the libertarian economic framework proposed in the Bill provides the solution to these issues.

Seymour has openly said the TPB “will change the whole environment that land-use laws and every other kind of law is made in.” For those aligned with libertarian ideology, the proposed Treaty principles provide a clear vision for how government should operate and address issues.

This vision appears more consistent with ACT’s political philosophy than with established interpretations of te Tiriti. Seymour acknowledged this in an interview, stating, “I’ve put up a set of principles that I think are useful to live by.”

In the context of ACT’s broader narrative and the undisclosed guidance for legal interpretation being progressed separately, this reveals that the coalition government’s proposed Treaty principles are, in essence, a libertarian framework for New Zealand’s future.

The far-reaching impact of the Regulatory Standards Bill

The confidence ACT shows in their preferred interpretations of the Treaty principles may stem from concurrent proposed constitutional changes that have received little attention so far. The uproar prompted by the TPB risks overshadowing its dull cousin, the Regulatory Standards Bill (RSB).

Individually and together, these two Bills could bring about significant constitutional reforms with far-reaching implications. Both serve to advance libertarian ideals across a broad spectrum of legislation.

The ACT Party’s RSB, set to be passed under the ACT-National coalition agreement presents a set of values that all laws should align with. These principles include selected elements of the rule of law, individual freedoms, property rights, restrictions on government, and restraints on taxes and charges. The 2021 RSB mandated that laws be interpreted according to its principles wherever possible.

While the discussion document on the 2025 RSB has dropped this clause, it is part of the options considered by the interim Regulatory Impact Statement by the Ministry for Regulation, and should be considered (and in my view opposed) in submissions.

Regardless, the RSB has previously been promoted by ACT as a constitutional Bill, and as such, courts would be bound to apply its principles broadly.

The RSB has been described by some commentators as advancing an “economic constitution”, addressing what they consider a missing element of the 1980s neoliberal reforms. If enacted, it could require the government and courts to prioritise individual liberties and property rights, and limit policies that conflict with these principles.

If both Bills are enacted, the RSB could influence how the TPB’s ambiguous terms are legally interpreted, leading to interpretations aligned with libertarian perspectives. Their impact could be significant, reshaping aspects of New Zealand’s constitutional framework.

Why these legal changes deserve public scrutiny

The RSB’s potential impact on the TPB has not received public attention, leaving its broader constitutional consequences insufficiently examined. Without greater public scrutiny, these constitutional proposals could lead to substantial legal and social reforms.

These Bills could weaken protections for Māori while also reshaping New Zealand’s economic, social, environmental, and political landscapes for everyone.

Submissions on the TPB close on 7 January, with RSB consultation ending on 13 January. These deadlines offer a key opportunity for public input on proposed constitutional reforms with potentially wide-reaching legal implications. These Bills affect everyone - don’t miss the chance to have your say.