Melanie Nelson: Submission on the Principles of the Treaty of Waitangi Bill

Here is the text I am planning to submit to the select committee. Don’t miss your opportunity to have your say at this pivotal moment for our country. Feel free to draw on my ideas below. Link for submissions here. Submissions close 7 January.

To Whom It May Concern,

I am writing to express my strong opposition to the Principles of the Treaty of Waitangi Bill (TPB). This Bill represents a profound and alarming shift in New Zealand’s constitutional and legal framework, with severe implications for te Tiriti o Waitangi and the rights it guarantees to Māori. It also has significant implications for all New Zealanders and for the government itself.

I write as a Pākehā New Zealander who takes a significant professional and personal interest in cross-cultural dynamics in Aotearoa New Zealand.

I have expertise in a number of different areas which are highly relevant to this issue and inform my multi-disciplinary submission.

I am a licensed Māori language interpreter and translator (Toi Reo Māori certified), and am a graduate of Te Panekiretanga o te Reo Māori (The Institute of Māori Language Excellence) and hold a Masters of Māori Language Excellence (Te Tohu Paerua o te Reo Kairangi).

I have a background working within government in the application of the Treaty principles in conservation. I have since worked with businesses, iwi and NGOs as a consultant in this field.

For nearly a decade I have taught workshops on te Tiriti o Waitangi and the Treaty principles, and their practical application to the work of organisations.

I also work as a researcher, analyst and writer, and have spent much time this past year working to understand the implications of the TPB, and more recently its interactions with the proposed Regulatory Standards Bill, which this coalition government has agreed to pass.

Flawed Translation Forms the Basis of the Proposed Treaty Principles

As a licensed translator and interpreter it is abundantly clear to me that the proposed principles are not derived from te Tiriti o Waitangi, as has been claimed. Instead, they rely on cherry-picked, minimal part-phrases from the Māori text of te Tiriti that, on their own, make no sense grammatically in te reo. They’ve been decontextualised linguistically, historically and culturally, and then recast with new meanings in the proposed “Treaty principles”.

The graphic below shows clearly how much of the text of the articles of te Tiriti has been ignored. This graphic does not include the preamble, also key to reading te Tiriti, which has been entirely ignored in this Bill.

Attached to this submission is an open letter that was sent to the Prime Minister and senior Ministers in July 2024, on the proposed Treaty principles. Twenty seven licensed Māori language interpreters and translators signed this letter.

I was one of the authors, signatories, and a spokesperson for the letter. I summarise the letter here, and refer the select committee to the full text at the end of this submission.

Although the wording of the proposed Treaty principles has changed since the letter was written, their intent and meaning has not. The letter is equally relevant today as it was in July.

Professional translators of te reo Māori have highlighted that the Treaty Principles Bill is based on highly inaccurate translations of te Tiriti o Waitangi, breaching international ethical standards of translation. These inaccuracies result in serious misrepresentations of foundational concepts in te Tiriti, including the dilution of tino rangatiratanga and the erroneous extension of Treaty guarantees to all New Zealanders. These distortions do violence to te reo Māori, an official language of Aotearoa, and undermine the trustworthiness of governance.

The translators emphasise that the proposed principles include additions, omissions, and distortions of the original text. For instance, the inclusion of concepts like individual property rights and equality before the law—absent in te Tiriti—misrepresents its intent. Conversely, key guarantees to rangatira and hapū in te Tiriti, such as tino rangatiratanga over whenua, kāinga, and taonga, are omitted. These errors are compounded by the lack of professional and peer-reviewed translation processes, raising serious concerns about the integrity of the Bill.

The government has a duty to ensure accuracy and cultural fidelity when translating texts that underpin national legislation. The use of flawed translations in the TPB violates the government’s obligations to preserve te reo Māori and act in good faith under te Tiriti. By introducing a Bill founded on misinformation, the government risks enshrining these inaccuracies into law, threatening national unity and good governance.

Removing the Role of the Actual Tiriti o Waitangi

The TPB’s obvious objective is to redefine and narrow the principles of te Tiriti o Waitangi and the legal meaning of the articles of the Treaty themselves. At best, they are redefined to become broad and meaningless. At worst, the redefinitions hold highly ideological libertarian meanings which could leverage the constitutional force of te Tiriti to become foundational to our nation’s future (this is detailed further below).

Either way, this act of fact-free redefinition removes te Tiriti’s influence in legislation and undermines the Crown’s obligations under this foundational document.

Far from simply clarifying the Treaty principles, the proposed Treaty Principles Bill may provide politicians with access to alter our constitutional foundations and multiple existing laws – without needing to amend or repeal those laws – with potential sweeping economic, environmental, indigenous and social repercussions.

It has been suggested that the proposal could amount to a constitutional coup – radically changing the meaning of numerous laws where the phrase “the principles of the Treaty of Waitangi” is included, and also all laws where reference to the Treaty is not explicitly excluded.

The extreme flow-on effects of fundamentally changing the meanings of the Treaty principles have not been sufficiently considered, documented or understood. It would be irresponsible of the select committee to recommend that the Bill proceeds without such due diligence having been undertaken. This would take a number of years focused effort.

The Bill focuses on the use of the Treaty principles in the interpretation of legislation. However, it is important to note that other applications of the Treaty principles include the Legislation Guidelines, the manual of the Legislation Design and Advisory Committee for the development of legislation. Thus, the TPB could also radically change the content and focus of future legislation, by mandating a different set of considerations in the design and creation of legislation.

David Seymour is on record as stating that the proposed ‘Treaty principles’ would provide a constitutional platform for New Zealand. Indeed, it appears that the TPB should be considered to be a constitutional Bill due to the subject matter of each of the proposed principles, in addition to the fact that it pertains directly to te Tiriti o Waitangi.

Te Tiriti is part of our unwritten constitution; its text has never been formally passed into law. Although the Bill is said to focus on the Treaty principles, it could access the constitutional force of te Tiriti itself.

If the Bill is passed, this ‘recasting’ of what is said in te Tiriti could lead to political preferences becoming embedded in an inaccurate interpretation of the Treaty, bypassing its legal, linguistic and historical realities.

Although Parliament has the power to legislate, for example, that all dogs are cats, that does not make it true that dogs are cats. Likewise, Parliament could legislate that the Treaty principles are now based on a regime of Government authority, property rights supremacy, individual sovereignty, self-reliance and rigidly homogenised systems, in place of the relationship with Māori. It would be inherently problematic to have such fiction enshrined as legal fact in our laws.

Additionally, future governments could simply amend the Principles of the Treaty of Waitangi Act inserting their own preferred values as Treaty principles, putting the Treaty on a perpetual political roundabout – causing instability legally and possibly constitutionally, as well as in the partnership with Māori.

Removing Māori Interests and Those of All Other Groupings

Although the TPB is framed as being about the Treaty, its proposed principles have implications for the rights and interests of Māori well beyond the Treaty, and the rights and interests of any group (gender, ethnicity, disability, class etc) which receives ‘special’ treatment, to address disparities or marginalisation.

The formal equality proposed by “equality before the law” and “without discrimination” could mean that targeted actions towards any group are delegitimised.

Furthermore, there are many Māori rights and roles which are not included in Treaty settlement legislation which Principle 2 threatens to delegitimise. There are too many to list here, but examples include Mana Whakahono ā-Rohe groups and the Māori seats in parliament. Those rights do “differ from the rights of everyone” and are not “agreed to in the settlement of a historical treaty claim”.

Effects on the Waitangi Tribunal Jurisdiction

The Treaty Principles Bill, if passed, would fundamentally alter the jurisdiction and founding purpose of the Waitangi Tribunal. It would transform the Tribunal from an organisation tasked with investigating contemporary breaches of Māori rights and interests to one mandated to ensure that iwi and hapū hold no specific rights beyond those defined in Treaty settlements. This shift would utterly undermine the Tribunal’s explicit purpose which is to address both past and present-time injustices.

If enacted without changes to the Tribunal’s founding legislation, the Treaty Principles Bill would render the Tribunal’s scope for contemporary claims nonsensical. Its mandate with contemporary breaches of the Treaty principles would instead be to investigate claims by Māori who were claiming prejudice because Māori were being allowed rights that differ from those afforded to all New Zealanders.

This has no basis in te Tiriti, and beyond changing the legal interpretation of te Tiriti, is also a significant recasting of the role of the Tribunal – one that is only likely to enable Crown breaches, generate disharmony and drive inequity, rather than help resolve wrongs committed by governments, both past and present.

Legislation requires that the membership of the Tribunal is based on consideration of the partnership between the two parties to the Treaty, along with each appointee’s attributes, and knowledge and experience of matters likely to come before the Tribunal.

If future claims focus on breaches of the new “Treaty principles”, as they legally must if the Treaty Principles Bill becomes law, the Tribunal’s membership could shift towards those with expertise in assimilation and the denial of indigenous rights, rather than those with a background in te Tiriti and upholding indigenous rights. (This sounds remarkably similar to the role of the proposed Regulatory Standards Board, under the Regulatory Standards Bill to be passed by this government.)

It would put at risk long decades of work to bring to progress reconciliation and rightful co-existence in Aotearoa New Zealand, and to right the inequities Māori experience due to both colonisation and current government policies. This is unacceptable and would create huge liabilities for the Crown that would have to be addressed in future. It would also undoubtedly lead to significant litigation and uncertainty.

In its current form, the Waitangi Tribunal has been instrumental in developing the Treaty principles and making recommendations to the Crown about recognising Māori rights and progressing reconciliation. However, if the Treaty Principles Bill is enacted, it would restrict the Tribunal’s capacity to fulfil this essential function, potentially leaving the future of Māori rights in the hands of a body tasked with enforcing a vision of assimilation rather than protection.

The Existing Common Law Treaty Principles

This shift also threatens to undo decades of progress in integrating te Tiriti principles into lawmaking processes, and much complex thought by courts as to what the principles of the Treaty are.

As an educator and consultant on the Treaty principles and their practical application, I am well versed in the nature, content and application of the current common law Treaty principles.

It is utterly incorrect to claim that they need clarifying or don’t exist. The common law Treaty principles are clearly articulated by the courts, and I refer to the award-winning textbook by “Treaty Law” by Kevin Hille, Carwyn Jones and Damen Ward. Further principles are also clearly articulated by the Waitangi Tribunal.

I have had no trouble in my many years of working with the Treaty principles, both inside and outside government, in knowing what they are and how they should be applied.

The feedback I constantly receive from my clients is that the existing Treaty principles are clear, easily understood and very constructive to apply in their work. They find that they lead them to develop good relationships and processes with tangata whenua, and provide a very useful framework for discussions and working through any areas of conflict or difficult issues.

Libertarian Interpretations of the Key Terms in the Treaty Principles Bill

The Bill’s framing prioritises libertarian concepts of individual rights and formal equality before the law over the collective rights guaranteed to Māori. This reframing is inconsistent with the intent of te Tiriti, which recognises the collective and holistic rights of iwi and hapū and the Crown’s responsibilities to actively protect these rights.

Furthermore, although the proposed principles present as liberal and neutral, their libertarian interpretations differ significantly from common usage. The narrative by the ACT Party around the meanings and impacts of the Treaty principles Bill aligns strongly with the libertarian meanings rather than the common usage meanings.

The TPB uses phrases such as “equality before the law”, “fundamental human rights”, and “without discrimination” that, while appearing neutral and fair, lend themselves to vastly different interpretations under libertarian ideology.

These phrases, under common usage, suggest commitments to equity, fairness, and inclusivity. However, libertarian interpretations often emphasise formal equality over substantive fairness, framing measures like affirmative action or equity initiatives as discriminatory and incompatible with individual property rights.

For example:

• Equality before the law: Commonly understood as addressing structural inequities, in a libertarian framework, this phrase prioritises the absence of differential treatment, effectively opposing policies aimed at correcting systemic disparities. It can also preclude graduated taxation, which is seen as discriminating against high income earners.

• Fundamental human rights: While broadly interpreted as including both negative (freedom from interference) and positive (entitlements like education and healthcare) rights, libertarian interpretations emphasise negative rights, often at the expense of collective well-being or proactive measures to address inequities. Libertarian interpretations of fundamental human rights are primarily about property rights and individual sovereignty, and restricting government.

• Without discrimination: Under libertarian ideals, this principle opposes distinctions between groups, including those intended to address systemic disadvantages, thereby undermining initiatives designed to reduce inequities for Māori and other marginalised communities. Whereas common usage of the term would seek to prevent discrimination against marginalised or disadvantaged minorities, the libertarian interpretation seeks to prevent ‘discrimination’ against individuals, such as through graduated taxation or infringement on property rights (and sees traditional affirmative action as discriminatory).

Appropriating Tino Rangatiratanga

Seymour regularly conflates tino rangatiratanga, a collective right guaranteed to hapū and iwi under te Tiriti, with individual autonomy and property rights, claiming that the TPB will extend the rights guaranteed to Māori in te Tiriti to all. At times, he claims that te Tiriti made guarantees to all New Zealanders, though he has also acknowledged that it didn’t – he just thinks that those guarantees should be extended to all.

This misinterpretation fundamentally alters the meaning of tino rangatiratanga, shifting its focus from the self-determination of Māori collectives to a framework prioritising individualistic and property rights centred ideals. This reinterpretation risks eroding the protections and rights afforded to Māori under te Tiriti and undermining the Crown’s obligations to uphold tino rangatiratanga.

Tino rangatiratanga is not the ACT Party’s plaything to give away and twist. This is an ultimate act of colonisation.

Potential Legal Uncertainty

By redefining Treaty principles and adopting ambiguous language, the TPB risks creating significant legal uncertainty. Courts tasked with reconciling conflicting interpretations of the Bill and te Tiriti may face prolonged litigation and inconsistent outcomes, further complicating the legal landscape. Ironically, this could exacerbate the very issues the TPB claims to address by increasing complexity and unpredictability in the legal system.

Broad Implications Beyond Te Tiriti

The TPB’s alignment with libertarian ideals extends its potential impact beyond te Tiriti considerations. By embedding a framework that prioritises individual property rights and limits collective responsibilities, the Bill could constrain efforts to address critical issues such as environmental protections, public health, and social equity. This narrow approach undermines New Zealand’s broader commitments to equity, sustainability, and the collective well-being of its citizens.

The Regulatory Standards Bill’s Implications for the TPB

The Regulatory Standards Bill is agreed under the ACT-National coalition agreement to be passed into law this term. The Minister for Regulation, David Seymour, has directed that the 2025 RSB be based Regulatory Standards Bill 2021, with proposed changes outlined in the Ministry for Regulation’s discussion document, which is currently open for consultation.

The proposed RSB contains a set of libertarian principles, which most existing and future legislation should be brought into alignment with. Although the RSB is not the focus of this submission, its relevance should not be ignored by the select committee, as it is agreed to be passed into law by this government.

The Regulatory Standards Bill 2021 included a clause described thus:

“Wherever an enactment can be given a meaning that is compatible with the principles (after taking account of the qualification in clause 6(2) relating to what is reasonable and can be demonstrably justified in a free and democratic society), that meaning is to be preferred to any other meaning. This clause will apply to legislation made before the date on which the Bill comes into force only after the tenth anniversary of that date.”

The discussion document, which proposes changes to the RSB 2021, is silent on this matter. It should therefore be assumed that this clause may remain under consideration for inclusion.

If included, this clause could have the effect of retrospectively changing the meaning of many laws away from what was intended by Parliament at the time, giving them a libertarian slant.

Importantly for this submission, it would also have implications for the interpretation of the TPB, if it is passed, potentially giving preference to the libertarian definitions possible for its key terms over the common-usage meanings.

This would mean that the Treaty Principles Bill would create a set of libertarian constitutional principles which affect everyone, not just Māori. The nation has generally been unaware of these potential libertarian definitions of the terms in the Treaty Principles Bill, and that with the pending enactment of the RSB those definitions may be required to be given preference by the courts.

This has profound flow-on effects for the meanings that might be accorded to existing legislation when applying the lens of the “Treaty principles” to interpretation. It could result in not one, but two, sets of constitutional principles being focused on individualistic and property centred rights.

In such case, it could be very hard for environmental or social protections, or collective rights under the Treaty (other than those recognised by Treaty settlements) to be enacted or even addressed by government regulation, policy or interventions.

Concerning Phrasing in the Treaty Principles Bill

While the libertarian meanings of key terms have been addressed above, there are other concerning phrases included in the proposed Treaty principles.

1) “The Executive Government of New Zealand has full power to govern”

a. This could be seen to be changing the balance of powers and entrenching more power in the executive than existing constitutional arrangements.

2) “The Parliament of New Zealand has full power to make laws”

a. The role of parliament is much broader than this, for example it has oversight roles of the executive and scrutiny such as through the select committee process. This principle could be considered to be narrowing the role of parliament.

3) The absence of an acknowledgement of the role of the judiciary

a. This could be seen to be threatening the role of the judiciary regarding the Treaty.

4) “in the best interests of everyone”

a. Who is everyone? This seems to be undefined. Earlier iterations of the proposed Treaty principles referred to all New Zealanders, however that terminology has been replaced with “everyone”. What would it mean for the executive to govern and parliament to make laws “in the best interests of everyone”? Does “everyone” include people who are citizens of other countries? This subtle change is highly concerning.

5) “The rule of law” and the “maintenance of a free and democratic society” could also be given highly specific libertarian meanings which are not clear in the TPB, with the enactment of the RSB.

Conclusion and Recommendations

The Treaty Principles Bill represents a critical turning point for Aotearoa New Zealand. Its redefinition of te Tiriti principles threatens to marginalise te Tiriti’s role in governance, prioritise libertarian values over collective rights, and undermine decades of progress in recognising and upholding Māori rights.

This Bill would usher in a new era where all understandings are up for negotiation – opening up great legal unknowns and drastically reducing Māori rights. Expensive litigation on the meanings of words and phrases that have long been settled could give rise to substantial uncertainty.

The ‘Treaty principles’ included in the Principles of the Treaty of Waitangi Bill are antithetical to the text and spirit of te Tiriti o Waitangi. Their outcomes are hard to predict or fathom, as the proposal is such a distortion of what has gone before.

I urge the select committee to recommend that the government:

1. Abandon the Bill, which seeks to undermine the protections enshrined in te Tiriti o Waitangi.

2. Ensure that any legislative reforms respect and uphold the Crown’s obligations under te Tiriti, including its collective and holistic rights.

3. Engage meaningfully with iwi and hapū to develop legislative frameworks that genuinely reflect te Tiriti’s intent and support equitable outcomes for all New Zealanders.

4. Address the potential for ideological reinterpretations of Treaty principles to distort their intent and ensure that legal frameworks promote equity and collective well-being, and environmental protections.

5. Seek a constructive way forward for Aotearoa New Zealand that brings people together to understand our shared inheritance, work with it openly and honestly, and genuinely progress towards reconciliation so that we can all thrive.

New Zealand’s constitutional and legal framework must reflect our honest shared history and commitment to partnership, equity, and justice. The government must reject this Bill and instead pursue legislative approaches that uphold these values and strengthen the role of te Tiriti o Waitangi in governance.

I would like the opportunity to appear before the select committee to speak to my submission in person.

Ngā mihi,

Melanie Nelson

Treaty Principles Bill: Open letter to the Coalition Government of Aotearoa New Zealand from professional translators of te reo Māori 1 July 2024

This letter is included in my submission. Rather than reproducing in this long post, you can read the full text of this letter at this link.