Lawyer: Principles already 'waters down actual text' of Treaty

A prominent Māori human rights lawyer has argued the existing principles already “waters down” the text of the Treaty of Waitangi, in a way that would be worsened if ACT’s Treaty Principles bill becomes law.

Natalie Coates (Ngāti Awa, Ngāti Hine, Ngāti Tūwharetoa, Tūhourangi, Tūhoe, Te Whānau a Apanui) of Kāhui Legal made the comments on The Principles: A Q+A Waitangi Day special, in an interview with Jack Tame.

The existing principles of the Treaty of Waitangi are not codified in legislation, but have been adopted by the courts and used to interpret the Treaty of Waitangi in modern cases and contexts.

Coates told Q+A that means that the existing principles don’t necessarily give effect to the Treaty of Waitangi in legislation.

“It’s not about giving effect to Te Tiriti o Waitangi broadly, that’s not what the interpretive dimension is designed to do,” said Coates.

“The critique of the use of that mechanism has long been argued by a number of prominent Māori, they’ve argued that in effect it waters it down, instead of looking at the actual text which isn’t on the face of it that complicated or hard.”

“What the principles are arguably trying to do is extract meaning from the two different texts, as we understand them now compared to how we understood them at the time, and try and come up with a compromise.”

“But the critique of that is that it doesn’t often give justice under Article 2 of the Māori version, which promises rangatiratanga,” said Coates.

Coates said that if the principles of the Treaty are redefined, there could be legal challenges.

“What it would do is represent a fundamental dishonouring of our constitution, and that is problematic,” said Coates.

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‘We’ve just come off the back of a Treaty settlement process where governments of all sides say we’re sorry for dishonouring the Treaty, we’re going to pave a new Treaty-consistent path going forward.”

“So to unilaterally redefine Te Tiriti in law in a way that reads-down Māori rights, flies in the face of all the progress we’ve made over the last forty years.”