Waitangi Tribunal recommendations should be rejected or Kiwis' rights could be up in air - David Seymour

The ACT Party's David Seymour believes recommendations made in a recent major Waitangi Tribunal report that addresses historic treaty breaches should be rejected.

He argues the potential consequences of following the logic of the tribunal's findings would be significant, with the property rights and "basic human rights" of New Zealanders thrown up in the air.

Seymour believes the tribunal has become "increasingly activist" and it's time for Parliament to clearly define the principles of the Treaty of Waitangi and put it to the people in a binding referendum.

"I think it would legitimate a healthy debate," Seymour said. "A lot of people say it would be very divisive. That's not what I see."

The nearly 2000-page Waitangi Tribunal report was released in late December as part of the Te Paparahi o Te Raki (Northland) inquiry. It deals specifically with claims from a large number of northern hapū from Ngāpuhi, Ngāti Wai, Ngāti Hine, Patuharakeke, Ngāti Rehua, Ngāti Whātua and Ngāti Manuhiri. 

Among the findings is that proclamations made by the Crown to have sovereignty over the North Island, and later other parts of New Zealand, breached treaty principles. This is based on a previous finding that sovereignty wasn't ceded in 1840 by rangatira in the Bay of Islands and Hokianga.

The report made several recommendations, including that the Crown apologise for treaty breaches, return all Crown-owned land in the northern district to local Māori, compensate Māori, and work with Māori to determine constitutional processes and institutions that give effect to what was agreed in the treaty.

"Those discussions and negotiations will occur in part at a constitutional level and will require a sharing of power as envisaged in te Tiriti," Judge Craig Coxhead wrote. "We have no doubt that this process will be challenging for the Crown, but undertaking it in good faith is essential if the treaty partnership and the Crown's own honour is to be restored."

Speaking to Newshub ahead of this year's Waitangi commemorations, Seymour said the tribunal's conclusion that hapū didn't cede sovereignty and that the Crown's exercise of power was "inconsistent with the treaty" could have serious consequences if followed . 

"There may well be a claim of fact about things that happened and that we should be willing to look at that," he said. "But I don't see where the implication takes us as a free and democratic society."

"It would appear that if you take it to its logical conclusion then the property rights of New Zealanders and the basic human rights of New Zealanders in Northland are not subject to kāwanatanga [governance] by the Crown."

He said that could mean a "Rūnanga model" [a tribal collective or council] or "some other type of Government" that could annul property rights and call into question treaty settlements.

Seymour said he is of Ngāpuhi descent "among other things" and wants to "move around and exist in Northland under the rule of law set by the New Zealand Government and courts". 

"I want property rights to be upheld by that system, too. It's one of the best systems in the world.

"The idea that somehow there's going to be some sort of dual sovereignty or contested sovereignty or alternative law enforcement or anything like that, it's simply not consistent with the with what is good for people in the long term."

Seymour called that "completely untenable".

He said if ACT was in Government, it'd reject the recommendations. 

"I think the problem is that the Waitangi Tribunal has gone well beyond its brief and become increasingly activist… it's tried to become a source of authority in its own right."

ACT Leader David Seymour.
ACT Leader David Seymour. Photo credit: Getty Images.

Te Rūnanga-Ā-Iwi-Ō-Ngāpuhi chairperson Wane Wharerau told Newshub this week he believed the Waitangi Tribunal report only confirmed what the iwi already knew.

"It's something that we've known in our DNA since 1840, to be honest. There have been historic questions of the Crown regarding te Tiriti and the implications of it," he said. "It is significant."

"The biggest impact is the recognition of tino rangatiratanga. That in itself has formed a lot of discussion in terms of what that means. It will continue to be a discussion point for hapū and iwi."

He said hapū are currently considering the report and hopes a mature conversation can be had about it.

"[There will be] naysayers and people who push back on the findings and recommendations that are before us at the moment and who will want to discredit [them].

"The Government will have a lot of pressure on it to comply more so with a mainstream audience. That's undoubted. But I have full faith in our country. 

"I think most of our people are fair-minded."

The Government is yet to formally respond to the report's recommendation, but Kelvin Davis, the Minister for Te Arawhiti-Māori-Crown Relations, has welcomed it. 

"Time will now be taken to carefully consider and review the tribunal's findings; this is incredibly important mahi and we have to make sure we get things right," Davis said.

"From here, it will be important for the Crown to have a discussion with all Māori represented in the findings about how tino rangatiratanga might be expressed practically in the 21st century and how breaches of the Treaty might be remedied."

Inquiry district and taiwhenua.
Inquiry district and taiwhenua. Photo credit: Waitangi Tribunal.

Treaty principles 

Seymour said the findings of the tribunal show the need for a Treaty Principles Act to define exactly what the "treaty means". The Waitangi Tribunal could then have a role in ensuring those commitments are upheld, he said.

So who would decide how to define those principles? Seymour acknowledges that would be a point of contention.

"It would go through the normal lawmaking process. A Government would have to get advice. Obviously, that would be quite contested. I imagine it would consult first," he said.

There would then be the usual parliamentary process, including with Select Committees and a "vigorous debate" in the House which the public could see unfold. 

However, once the Bill was passed, it wouldn't come into force until agreed to by the public via a binding referendum. The same mechanism was used for Seymour's End of Life Choice Act, which didn't have effect until voted for in the 2020 election.

Seymour said this would elevate it above other laws while also allowing for a public discussion. 

He doesn't believe that would be divisive as some claim and argues "there's a lot of stereotyping that people are nasty and hateful". 

If the referendum failed, then the "Waitangi Tribunal, the court, the public service and some politicians" can continue defining the treaty as a document that categorises Kiwis as either "tangata whenua or tangata tiriti". 

But if ACT wants its referendum in Government, it would need the support of its traditional larger partner, National.

But it's not National Party policy and leader Christopher Luxon has said he doesn't see the need for it.

Seymour said that's not going to stop him from advocating for it. 

"Sometimes you have to stand for what you believe is right and asked the public to decide whether they support you. At this point, ACT support is holding up quite nicely and has a lot of upside. 

"You may well see an ACT Party that's a quarter or maybe a third of the next Government. At that point, I think the National Party might have to ask themselves, did they believe in the underlying principles in their constitution or are those just a convenience?"

PM Hipkins received a message from iwi on Friday.
PM Hipkins received a message from iwi on Friday. Photo credit: Newshub.

The concept of co-governance has been a major talking point so far at Waitangi.

At a National Iwi Chairs Forum meeting on Friday, iwi leaders told Prime Minister Chris Hipkins that they expect politicians not to use race to create division.

"They don't want to see ethnicity, race being used as a way of dividing New Zealanders and I was able to absolutely reiterate my Government's commitment to ensuring that we continue to work together to avoid that happening," Hipkins said.

Hipkins, as well as Waikato-Tainui's Tukoroirangi Morgan, both said National and ACT have used uncertainty around co-governance to stoke fear. 

Morgan said that's been evident in the Three Waters debate.

"There is nothing mysterious about Three Waters, it's all about pipes under the ground. Our view has always been we stand here at Waitangi, at the cradle of the Treaty of Waitangi, and here is the embodiment of partnership."

Seymour has accused Hipkins of just playing politics.

"I really hoped we'd see a more constructive approach from the new Prime Minister explaining what he thinks co-governance is rather than attacking National and ACT," he said on Friday.

For Sunday's Waitangi feature, Te Pāti Māori's Rawiri Waititi tells Newshub about how the tribunal report could lead the way to a "more equitable" constitution - and whether agreeing to its recommendations are a bottom line in potential coalition negotiations.