THE PRIME MINSTER’S CABINET OFFICE 22nd October 2019 PUBLISHED BY CO (19) 5 : Te Tiriti o Waitangi / Treaty of Waitangi Guidance. Guidelines (PART 1-4)
These guidelines are agreed upon by the Prime Ministers Cabinet, by all Ministers to use the guide book in policy decision making in consideration of the Treaty Of Waitangi in policy development and implementation, the Te Tiriti o Waitangi is one of the major sources of NZ’s Constitutional Arrangements, There are differences included in the guidelines between English and Maori texts. The PM’s Cabinet report “therefore there are difficulties of understanding the meaning and implications in the modern day (Therefore they have adapted the Te Tiriti o Waitangi to fit whatever political purpose they want it to fit)
The texts of the Treaty used in political decision making are from interpretations used from the Treaty Of Waitangi Act 1975, the translation by Sir Hugh Kawharu are included in the cabinets guidelines. Other sources in the Cabinets guidance manual includes The Constitution Act 1986, the prerogatives powers of the Queen, the State Sector Act 1988, the Electoral Act 1993, the Senior Courts Act 2016, the NZ Bill of Rights 1990 and other relevant New Zealand, English and UK statutes, decisions of the Courts and the Conventions of the Constitution (Cabinet Manual. P.2)
Te Tiriti o Waitangi / The Treaty Of Waitangi: Consists of a preamble and three articles. The influence of the Treaty on New Zealand’s constitutional arrangements have fluctuated in the years since it was signed in 1840. Since 1975 reference to the Treaty has been included in may laws passed by Parliament and the courts also the Waitangi Tribunal; have developed a considerable body of Treaty jurisprudence. The PM Cabinet Guidance Manual : States that The Treaty Of Waitangi is regarded as the ‘Founding’ Document of Government in New Zealand, (Not New Zealand’s Founding Document- the Governments Founding Document). That ‘it may indicate limits in polity on major decision making, where the law may sometimes accord special recognition to Māori Rights and Māori Interests (Covered by Art 2 of the Treaty). In other cases the law and its processes should be determined by the general recognition in Article 3 of the Treaty that ‘Maori belong, as citizens to the whole community’. In some situations, autonomous Māori Institutions have a role within the wider constitutional and political system.
In other circumstances, the model provided by the Treaty Of Waitangi of two parties negotiating and agreeing with one another is appropriate, policy and procedure in this area continues to evolve (Cabinet Manual 2019. Page 2). For further information see the ‘Te Puni Kokiri booklet ‘Key Concepts In The Treaty Exchange. The PM Cabinet Guidance Manual also states that the Treaty of Waitangi creates a basis for civil government extending over all New Zealanders on the basis of protections and acknowledgements of Māori Rights and Māori Interests within the shared citizenry. Any specific meaning of the Treaty, and its implications for particular issues, is not easy to specify in advance as it depends on circumstances and views that surround any issues as the time arises. Prior to the 2019 PM Cabinet Guidance Manual the previous one was produced in 1989.
PART 2 OF 4: THE PRIME MINSTER’S CABINET OFFICE 22nd October 2019 PUBLISHED BY CO (19) 5 : Te Tiriti o Waitangi / Treaty of Waitangi Guidance. Guidelines
: No article of the Treaty stands apart from others. Consideration of how the Treaty applies in any situation will require consideration of the applicability of all articles and the relationship each has to the others. There are sources of information about appropriate policy tools to use in the manual as to developing policy and the Treaty as to its place in New Zealands Constitutional arrangement that policy makers must be aware of, this includes the policy methods toolboc, the Cabinet Manual (The authorities guide to Central Government decision making for Ministers, their offices and those working within government and the 2018 Legislation Design and Advisory Committee’s Legislation Guidelines
The government last provided a brad Treaty guidance to the public service in 1989 as to Treaty Settlements which have been negotiated between Maori and Crown. The judicial (courts) have recognized ‘tikanga’ as part of NZ Common Law, the precise impact on common law and stature will vary, rights of ‘tikanga’ being relevant in legal disputes independent of statutory incorporation of the Treaty
This includes Treaty settlements, claim relating to and providing redress (compensation) for historical acts and omissions of the Crown. The Maor/Crown relationship continues post settlement, and past conduct even if settles may inform what a Treaty partner will do in the future. A number of government agencies have guidance as to applying the Treaty and more commonly its principles in the course of their work. The NZ Productivity Commission reviewed 10 examples in 2014. More information can be found on the Commission’s report ‘Regulatory institutions and practices.
Guidance is provided by the Courts and the Waitangi Tribunal as to the body of the Treaty jurisprudence developed by the courts. The Waitangi Tribunal focusses on principles derived from the Treaty. (More Info in Te Puni Kōkiri booklet) ‘The principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal’ references that the NZ Courts have held that Maori Rights might be recognized by the common law, without statutory expression, and a decision maker may be required to weigh the Treaty rights/interest even where there is no Treaty reference in statute. The courts will generally presume that Parliament intends to legislate in accordance with Treaty principles
The Waitangi Tribunal plays an important role in providing advice to government on the application of Treaty principles in relation to acts or omissions of the Crown which Māori allege breach the principles of the Treaty. The Treasury is consistent with the government’s Treaty Of Waitangi obligation. The courts guidance has developed and has a focus on the texts of the Treaty, a glossary of Maori terms are used throughout the guidance. Provides guidance on how the terms and concepts in the texts of the Treaty should be applied by government officials in undertaking their work
Thus creating new legal obligations, processes and decision making by Crown agencies relevant to issues or initiatives. The manual replace all previous government guidance on the Treaty (1989 Manual). It set out questions for policy makers to consider in policy proposals that recognizes the influence of thr Treat, what it should have in particular circumstances, resulting in the developing of policy in allowing policy makers to demonstrate an appreciation of kawanatanga, rangatiratanga and other key Treaty concepts and their applicability to their work.(another reference ‘Treaty guidance at a glance’ )
The courts will continue to have a role in interpreting laws where the Treaty is relevant to a matter. Specifically referring to the Supreme Court SS 66 (1) and 74 (3) of the Senior Courts Act 2016
SUPREME COURT: Specifically, in relation to the Supreme Court, see ss66(1) and 74(3) of the Senior Courts Act 2016. The translation of the Maori and English version of the Treaty and that of Sir Hugh Kawharu. ‘The Chiefs of the Confederation and all the Chiefs who have not joined that Confederation give absolutely to the Queen of England for ever the complete government over their land.
Policy makers are to ask themselves or other political party members “what is the effect on Maori, if there is an effect, how and why? Will proposals effect different Maori groups? What could the unintended impacts on Māori be and how does the proposal mitigate them? * How does the proposal demonstrate good government within the context of the Treaty? *Have policy-makers followed existing general policy guidance? * Are there any legal and/or Treaty settlement obligations for the Crown? * What are the Treaty/Māori interests in this issue? * How have policy-makers ascertained them?
THE TREATY OF WAITANGU MAY JUSTIFY DIFFERENT TREATMENT OF MAORI INTEREST OR INVOLVEMENT IN AN ISSUE. The questions asked are :- Do policy-makers consider whether, having properly assessed the Māori/Treaty interest in an issue, the proposal demands an approach/approaches for Māori that differs to the approach/approaches for other New Zealanders. If it does, then policy-makers should be able to articulate how and why. There is much more I want to add as to how policy makers process, implement policy decision making when interpretating the Treaty of Waitangi into policy making processes, therefore I will continue with two ore episodes of this (Episode 2-4)
PART 3 OF 4 PARTS: THE PRIME MINSTER’S CABINET OFFICE 22nd October 2019 PUBLISHED BY CO (19) 5 : Te Tiriti o Waitangi / Treaty of Waitangi Guidance. Guidelines
BELOW” Is the text as laid out in the above named Manual.
The following is included policy maker guidelines in implementation and decision making as to policies in the context of the Treaty of Waitangi – Good Government means a government properly conducted with due regard to the range of obligation a government has to the people it governs, particularly to Treaty obligations. Thus acknowledging the right of government to make laws with the right of Maori to retain authority over certain things. Throughout all phases of a policy project policy makers should assemble, review what they know about economic, social, technical, cultural and other important forces causing or perpetuating a policy problem, that the outcome has accounted for a Treaty interest to an extent.
Throughout all phases of a policy project, policy-makers should assemble and review what they know about the economic, social, technical, cultural and other important forces causing or perpetuating the policy problem. The question in paragraph 29.1 above asks whether the existing guidance referred to in paragraph 10 has guided policy development. If it has, then policy-makers can have some confidence that the outcome has accounted for a Treaty interest to an extent. Tools are available for policy makers to make them aware of whether existing legal obligations for the Crown to Maori in relation to many issues among them is the Settlement Portal (Te Haeta, which is an online recors of Treaty Settlement commitment which helps agencies and groups to search, manage settlement commitments
Even when Treaty Clauses are not present in legislation or regulations, the particular context may require the Crown to have regard to the Treaty Statutes that have references to the Treat or Treaty principles which often contain regulatory provisions that create obligation on a range of parties that are not Crown such as Local Government entities, officers of Parliament and Body Corporates.
It is critical that Maori- Treaty interests are taken into consideration, issues will vary from one issue to another. Cabinet guides also include:- Te Arawhiti’s engagement framework and guidelines will give policy-makers confidence that they have appropriately determined the Treaty/Māori interests in an issue.
The courts and Waitangi Tribunal have described the Treaty generally as an exchange of solemn promises about the ongoing relationships between the Crown and Māori with qualifications. By signing the Treaty, Māori expected the Crown to act honorably towards them; they expect the Crown to protect their interest in everything it promised to, and they expect the Crown to respect their right to make decisions over matters of significance to them. That the Māori Crown relationship is a continuing one, the Crown and Māori should act reasonably and in good faith towards each other, consulting with each other and compromising where appropriate. The courts have made significant decisions in relation to the application of the Treaty in New Zealand, particularly over the last 35 years. The Waitangi Tribunal is also an important forum where Treaty arguments may be made by Māori and the Crown. The Courts take particularcare about Maori Rights and Interests and these are raised in cases, including when interpreting laws passed by Parliament. Policy makers must conduct their work in such a manner as to make the Treaty consistent in decision making
THE PRIME MINSTER’S CABINET OFFICE 22nd October 2019 PUBLISHED BY CO (19) 5 : Te Tiriti o Waitangi / Treaty of Waitangi Guidance. Guidelines Includes Text in the context as below:-
Sir Hugh Kawharu’s translation sets out to show how Māori Kawharu believed that Maori would have understood the meaning of the Treaty Of Waitangi text when they signed it (from his perspective). This was published in a book ‘Waitangi Revisited: Perspectives on the Treaty of Waitangi, edited by Michael Belgrave, Merata Kawharu and David Williams (Oxford University Press, 1989)
This interpretation included: ‘Government’: ‘kawanatanga’. Sir Hugh’s view was that “there could be no possibility of the Māori signatories having any understanding of government in the sense of ‘sovereignty’: ie, any understanding on the basis of experience or cultural precedent.” This view is not universally held. For more discussion of the views and understandings of participants at 1840 see He Whakaputanga me te Tiriti / The Declaration and the Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry, particularly chapter 10 (Waitangi Tribunal 2014). * The legislation Guidelines (2018 Edition), Chapter 5.1, page 28, and Idac.org guidelines/ legislative guidelines 2018) Also Government documents, publications.
Also noted is that ‘the Treaty must justify different treatment of Maori interests or involvement of Maori in an issue but also adds does not confer greater rights on Maori than the government owes to all New Zealanders ( NOTE: Carols thoughts- Appears the Cabinet and Prime Minister in this text speaks with a forked tongue)
Even where “Treaty clauses” are not present in legislation or regulations, the particular context may require the Crown to have regard to the Treaty.
The courts have recognized tikanga Māori as part of New Zealand common law and as a value that informs development of the common law. The precise impact of tikanga Māori on the common law and statute will vary, however, tikanga may have a relevance in legal disputes independent of statutory incorporation of the Treaty
THE CROWN PROMISES THAT MAORI WILL HAVE THE RIGHT TO MAKE DECISIONA OVER RESOURCES AND TAONGA WHICH THEY WISH TO RETAIN
The scope of things that may be considered taonga, from a Māori perspective, are broad. At its most broad taonga can be said to be anything considered to be of value – including socially or culturally valuable objects, resources, phenomenon, ideas and techniques. For more discussion of the views of the courts and Waitangi Tribunal on taonga see pages 60-64 of the Te Puni Kōkiri booklet ‘Key concepts in the Treaty exchange’. The Waitangi Tribunal report Ko Aotearoa Tenei contains important discussion of how laws have side-lined Māori and Māori cultural values from decisions of vital importance to their culture which have left Māori unable to fulfil their obligations as kaitiaki (cultural guardians) towards their taonga –obligations which are central to the survival of Māori culture
The scope of things that may be considered taonga, from a Māori perspective, are broad. At its most broad taonga can be said to be anything considered to be of value – including socially or culturally valuable objects, resources, phenomenon, ideas and techniques
The Treaty guarantees and promises apply to all Māori – as individuals, whānau, hapū and iwi. Depending on the issue, it may be appropriate for policy-makers to engage with Māori individuals, whānau, hapū or iwi, or a combination thereof. Because the Treaty guaranteed Māori the control and enjoyment of those resources and taonga, policy-makers must consider what responsibilities Māori already have in relation to the matter. Importantly, Treaty interests are not confined to resources and taonga that Māori have retained possession of. For example, even where land has been alienated Māori interests may still be engaged
CAROL SAKEY ‘S PERSONAL CONCLUSION: That the original Maori version of the Te Tiriti o Waitangi has been seriously corrupted in many ways, by way of interpretation and in which way the context has been portrayed. That the Waitangi Tribunal has been allowed a political over-reach as to policy decision making. Sir Hugh Kawharu was a Treaty Claimant and a key figure of the Waitangi Tribunal his believe of what Maori Chiefs believed at the time should never have been included in the Prime Minister Cabinet Guidance Manuel for Policy Makers nor should have all the different legislative Act that have been passed including that of papers concluded by the Judicial (Courts). The one and only founding document of New Zealand is the original Maori Te Tiriti o Waitangi and no other. That the original Maori Te Tiriti o Waitangi is a beautiful document. ‘He Iwi Tahi Tatou’ We Are All One Nation’. This certainly has the body, heart and soul of what one Nation should be .. God Save New Zealand.
Sir Hugh Kawharu was a Treaty Claimant and a key figure of the Waitangi Tribunal his believe of what Maori Chiefs believed at the time should never have been included in the Prime Minister Cabinet Guidance Manuel for Policy Makers nor should have all the different legislative Act that have been passed including that of papers concluded by the Judicial (Courts).
There are three parties in the original Maori Version Of Te Tiriti o Waitangi, they are the Crown, the Maori Chiefs that also include ALL the people of New Zealand. Sovereignty was ceded to the Queen (Crown). All peoples of New Zealand became subjects of the Queen of England.
Partnership was not created by Te Tiriti o Waitangi, nor was what is called ‘Indigenous Peoples’. The coined phrase ‘Indigenous Peoples’ entered NZ in 1971 when George Manuel President of the Canadian Brotherhood visited NZ with a Canadian Delegation which was arranged with Pierre Trudeau, Justin Trudeau’s father. Manuel grasped the ‘Indigenous Peoples coined phrase from Moringe Ole Parkipuny a Tanzanian radical activist and a parliamentarian. During Manuel’s visit to NZ he spoke with some Maori Politicians about the phrase ‘Indigenous People’, then Manuel went on to visit the Northern Terrirories of Australia to speak with Aboriginals students at a university there. Manuel was a key person who helped draft the UNDRIP, he established the UN World Indigenous Council and was also President of the Council.
At one UN Assembly gathering over 100 natives, tribal peoples protested walked out of the UN Assembly because they were angry that they had never consented to being classed as ‘Indigenous People’ UN find it too difficult to define ‘Indigenous People’ therefore describe ‘Indigenous People’ as those people that define themselves as being ‘Indigenous People’
The one and only founding document of New Zealand is the original Maori Te Tiriti o Waitangi and no other. That the original Maori Te Tiriti o Waitangi is a beautiful document. ‘He Iwi Tahi Tatou’ We Are All One Nation’. This certainly has the body, heart and soul of what one Nation should be .. God Save New Zealand.