Sam Carpenter: Former Waitangi tribunal historian on the government's Treaty Principles Bill

The Waitangi tribunal released it's first take on the government's Treaty Principles Bill and it doesn't like it. 

The tribunal says it's unfair and discriminatory - and should be abandoned. 

The prime minister has already pushed back, saying it's a coalition commitment with Act to pursue the bill to first reading. 

Former Waitangi tribunal historian, Dr Sam Carpenter told Heather du Plessis-Allan it may cause confusion in the existing law and how principles are understood.  

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Episode Transcript

Speaker 1 (00:00):
Afternoon, the White Tonguey Tribunal has released its first take
on the government's Treaty Principles Bill, and it doesn't like it.
It says it's unfair and it's discriminatory and it should
be abandoned. But the Prime Minister has already pushed back,
saying it's a coalition commitment with Act to pursue the
bill to first reading. There will be different party positions
around the issue. I acknowledge that it's a challenging issue

(00:20):
that has been in my conversations with eerie leaders up
and down the country. Doctor Sam Carpenter is a former
White Tonguey Tribunal historian now researcher at laid Law College
and with us Hey, Sam, Sam, there's no bill written,
so what have they based this on?

Speaker 2 (00:36):
Well, based on that leaked advice on the coalition agreement
which says that the bill will be introduced on the
base but on the basis of existing Act policy. Now,
I mean, there seems to be some different sort of
opinion about whether you know it was the right time
to hold such an inquiry, but I think given the

(00:57):
constitutional significance, it's probably reason that the Tribunal did jump
at this.

Speaker 1 (01:03):
What can possibly be discriminatory about what act has released.

Speaker 2 (01:09):
Well, I think the real sticking point in terms of
the historical treaty and also I guess the interpretation of
treaty principles by Port's government and the Tribunal since the
nineteen eighties is the article to proposed clause or proposed
principle which essentially diminishes or or takes away marty rights

(01:34):
under the Guarantee of Bangotiertanga an Article two so essentially
transmographies that into a sort of a guarantee of Bangotiertanga
for all New Zealanders, which is kind of pretty historically
untenable hold the tax.

Speaker 1 (01:51):
So how is this taking away any rights? Just explain
to me how does it take away rights from Mary
from Ewi?

Speaker 2 (01:58):
Well, the Article one or tility says that the Crown
gets the right to govern and Article two is the
exchange is that the Crown then promises to protect the
rights of Hapou and Ewi groups in particular you know,
to lands, forest, fisheries, another, et cetera.

Speaker 1 (02:21):
And how does this kind take that away?

Speaker 2 (02:23):
Well, it's basically proposing to face that Article two statement
in the actual treaty. And also as understood, you know,
as the principles are typically understood as a guarantee of rangatanga.
For Madi to say that Article two just means a
guarantee of tanga for all New Zealanders over their land.

Speaker 1 (02:44):
And their property. But would that so would it not
be like this, sam if if Ewe and Hapu have
gottanga chieftainship over this particular piece of land and and
and you know, and this property. If you extend that
then to everybody in the country, how does that diminish
what e wee in Hapho've got because it just it
just reinforces they also have it.

Speaker 2 (03:03):
Yeah, well, I think it just reduces an Article two
to some sort of liberal democratic properly right. But there's
really no need to do that. I mean, I think
one of the well, one of the objections the Tribunal
has in the report, which is a very useful report
I think in terms of you know, how it examines
this issue. It says basically there's no there's no need

(03:26):
for a true principal bill and and potentially it will
create lots of confusion in the existing law and the
way principles are understood and existing both statute law, but
also the way the courts look like.

Speaker 1 (03:39):
But let so let's just understand something. So what the
what the tribunal is saying is that by extending the
same right of chieftainship to everybody, it takes it away
from Mari.

Speaker 2 (03:50):
Yeah, because I mean, I mean, it's pretty clearly understood.
I think in the in the jurisprudence that the guarantee
of citizenship or citizenship rights of all individuals is guaranteed
in the Article three. Yes, that's the rights of subject
of it. And that Article two is a uniquely Marti

(04:12):
guarantee to hapu, to collective groups in respect to their
lands and tamas. So I mean, ex trying to abstract
Article two into some sort of vagues liberal democratic equality
before the law, but it just makes no sense of
the historical treating, and I think it makes no sense
of how it developed treating.

Speaker 1 (04:33):
How the sound how the sounds is by arguing, for
for the fact that everybody should have a quality. If
that is not acceptable to the white tiny tribunal, then
the white tiny Tribunal's position must be that there is
no equality and Marty has special rights over everybody else.

Speaker 2 (04:50):
No, I don't agree with that. I mean the tribuniszy
is quite clearly. You know, all New Zanders have equal
rights of citizenship, but that Article two provides, you know,
essential guarantees. Other right for Marty is yeah, other other
special rights. Well right, more right, trying to to you

(05:11):
things that's tained to Marty as tribal peoples. I mean
that's that's, you know, the sterical position.

Speaker 1 (05:16):
Okay, Yeah, Sam, listen, I appreciate it's quite a narly
subject and when we probably need more time to deal with.
I really appreciate your time, doctor Sam carpent To former
White Tonguey tribunal historian now a researcher at Laidlaw College.
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