11-04-2025
New Zealand's divisive treaty principles bill has been defeated – but the fight against populism isn't over
The New Zealand parliament this week voted down the treaty principles bill – legislation that has caused more division in our country than any other proposal in recent memory.
I have been around for long enough to remember the debates about the nuclear free legislation and homosexual law reform in the 1980s, and the treaty bill generated at least as much debate as those two highly controversial measures. It sought to redefine the principles that flow from New Zealand's founding document, the Treaty of Waitangi.
While the bill is dead, the damage it caused will take some time to repair. The legislation has been the major contributor to deteriorating relations between Māori and the crown in New Zealand since 2023 and its effects will be felt for many years to come.
David Seymour, the Act party leader who introduced the bill, has said that this is really the beginning of the debate, not the end of it.
Some background is required. New Zealand has a proud history of attempting to address historical grievances. In 1975, the Waitangi tribunal was created. Its task was to consider contemporary breaches of the Treaty of Waitangi and make recommendations to the crown about how those breaches could be addressed. In 1985, the jurisdiction of the tribunal was extended so that it could inquire into historical grievances going back to 6 February 1840, the day the Treaty of Waitangi was signed.
The tribunal has been very busy over the last few decades inquiring into those grievances and making recommendations to the crown. That is how the treaty settlements process developed and it has been highly successful. I was the minister for Treaty of Waitangi Negotiations between 2008 and 2017 during which time the crown and various iwi (tribes) signed more than 60 deeds of settlement which were given effect to by legislation.
The statute which established the Waitangi tribunal referred for the first time to breaches of the Treaty of Waitangi 'and its principles'. Since that time, many statutes have been enacted requiring a minister or government department to take into account 'the principles of the Treaty' when making decisions or formulating policy. None of them has provided a definition of what the principles are. Instead, the definition has been developed by the courts over time, just as the common law has developed in other areas of the law, such as insolvency and tax. The principles developed by the courts are nothing revolutionary and include things such as a duty to act reasonably and in good faith. The principles have largely remained the same since they were developed in the late 1980s.
Every once in a while, certain elements on the right of politics have said that the phrase 'principles of the Treaty' is vague and uncertain and has empowered activist judges. From time to time legislation has been introduced with the aim of either deleting references to the principles or, as in the case of the treaty principles bill, redefining what those principles are.
In 2023, as usual under New Zealand's proportional voting system, an election failed to deliver a majority government. A coalition was formed between the National party (traditionally a liberal conservative party), New Zealand First (a mildly populist party) and the Act party (originally formed as a neoliberal, low regulation party, but adopting increasingly populist policies).
As part of the negotiations, the National party agreed that Act could introduce a bill to define the treaty principles in law, and have it referred to a select committee for public submission. There were no guarantees that there would be any support after that.
So in due course, Act introduced the treaty principles bill. It sought more or less to write the Treaty out of New Zealand history and replace it with a set of statements more suited to inclusion in the preamble of a written constitution. Understandably, Māori – who have had to fight every step of the way to have their grievances addressed – were shocked by this legislation. It caused huge upset throughout New Zealand and thousands marched on parliament in what was one of the largest demonstrations in the country's history. There was mayhem in parliament when it was first tabled – as members of the Māori party performed a haka or war dance which was watched all over the world. A record number of public submissions on the bill were made. The process was divisive and unfortunate – and ultimately pointless.
Will this issue just go away to be replaced by more pressing issues like the economy and the infrastructure deficit? I hope so, but I doubt it.
One can see the Act party campaigning on treaty principles at next year's election in an endeavour to increase its vote at the expense of the liberal-conservative National party and be in a position to have a greater say in any future centre right coalition. The performance of the Act party on this issue means that would be a bad outcome for New Zealand.
Much of the work that was done in the treaty settlement space was spearheaded by the National party governments of the 1990s and 2010s. In those days the National party was a liberal conservative party, the heir to both the liberal and the conservative traditions of politics. Unfortunately, throughout the world, centre right parties like the misnamed Liberals in Australia, the Conservatives in the United Kingdom and the Republicans in the United States, have ceased to be liberal conservative parties, and have leaned in a more populist direction. In doing so, they have betrayed their traditions and encouraged discourse which is at best counter-productive. The National party has so far avoided that pitfall, and one can only hope it will start asserting itself over its populist smaller partners in the lead-up to the 2026 general election.
Chris Finlayson KC, barrister and New Zealand's attorney general and minister for Treaty of Waitangi negotiations between 2008 and 2017
