PNZ Submission on the Treaty Principles Bill
PNZ made a written submission to the Justice Select Committee on the Principles of the Treaty of Waitangi Bill (“the Bill”). Our submission focused on the importance of having a national conversation about our constitutional arrangements, concerns about the process that had been followed in both developing the bill policy and the legislative process – which has resulted in damage to race relations and social cohesion, limited ability for submitters to write their submissions and consult with members and stakeholders, and an undermining of the Crown’s relationship with Māori and corresponding risk of damage to its ability to progress its own policy priorities and targets. We also analysed how the process and policy met the stated Bill objectives, and shared stories from PNZ members about how they are working with iwi, hapu and communities to support Māori aspirations, wellbeing and development.
Full Submission:
Submission to the Justice Select Committee on the Principles of the Treaty of Waitangi Bill (January 2025)
He waka eke noa: We’re all in this together
Executive Summary
1. Thank you for the opportunity to make a submission on the Principles of the Treaty of Waitangi Bill (“the Bill”). Our submission focuses on the importance of having a national conversation about our constitutional arrangements, concerns about the process that has been followed in both developing this policy and the legislative process – which has resulted in damage to race relations and social cohesion, limited ability for submitters to write their submissions and consult with members and stakeholders, and an undermining of the Crown’s relationship with Māori and corresponding risk of damage to its ability to progress its own policy priorities and targets. We have also analysed how the process and policy meets the stated Bill objectives.
2. Philanthropy New Zealand opposes this Bill and does not support the Bill being progressed further.
About Philanthropy New Zealand
3. Philanthropy New Zealand | Tо ̄ pūtanga Tuku Aroha o Aotearoa (“PNZ”) is the peak body for philanthropy and grantmaking in Aotearoa New Zealand. We are a non-profit, independent membership organisation. We support generosity, effective giving, and a strong philanthropic ecosystem, and offer guidance for people with an interest in giving to make the world a better place.
We provide training, share best practice, data and research, and connect our members to enable collaboration, representation, networking, professional development and information provision to the philanthropic sector. This includes our annual Philanthropy Conference and representing the needs and views of the sector with both local and central government.
4. You can read a copy of PNZ’s Briefing to the Incoming Minister here.
5. Like many of our members, we have been working to enhance culturally appropriate practice and build relationships with Tangata Whenua. For example, we run a “ki te hoe” programme, which is available for PNZ members to build capability and support Māori aspirations, we have strong connections with Te Kāhui Pūmanawa (New Zealand’s Māori Funders’ Network), and we regularly feature initiatives supporting Māori economic development and wellbeing in our newsletter and magazine.
6. We continue to see an increasing number of our members recognising the value in partnering with Māori, hapū, iwi and Māori organisations to deliver better outcomes for all New Zealanders. For example, we recently ran a “12 Days of Giving” campaign in partnership with the Minister of the Community and Voluntary Sector. Many of our members involved in the campaign shared stories about the work that their organisations were doing to support Māori aspirations and wellbeing – for example, the Gattung Foundation, Te Rourou One Aotearoa Foundation and the Michael and Suzanne Borrin Foundation.
About the Philanthropic Sector
7. Philanthropic organisations, and the giving sector, are an essential part of our country’s infrastructure that are working with communities all over the country to support areas of human, social, economic and environmental development. The philanthropic sector’s grant and donation-based funding is worth around $3.8 billion per annum1 with the opportunity for significant growth, particularly given the current intergenerational transfer of wealth valued at over $1 trillion, and growing corporate generosity. There are also substantial sums of capital funds available for investment.
8. The main groups that give for charitable and public benefit reasons in New Zealand are individuals/ households, businesses, trusts and foundations. According to studies quantifying giving in New Zealand, around 62% of donations are made by private individuals (48% direct donations, 9% family and individual trusts and foundations, and 8% bequests), 8% by businesses, and around 30% by statutory trusts and societies (JBWere, 2020; GNZ, 2014, 2011, 2006).
9. New Zealand is currently ranked at number 17 on the World Giving Index 2024 (This list is headed by Indonesia, the US is number 6, and Australia is number 8). Fundraising is dominated by the largest organisations with the largest 9% of charities receiving 91% of all donations. Over half of New Zealand charities receive donations; and “mean charity income by source differs by charity sector and size, with smaller charities receiving most of their income from donations, medium-sized charities from government grants, and larger charities from service/trading activities.”
10. Philanthropic funding is complementary to government funding and not positioned to fill core service gaps. It supports innovative initiatives and offers important “risk capital” for social change. Evidence of impact from such initiatives can highlight solutions suitable to scale (especially under a social investment approach) and inform new policy development. Philanthropic funders and grantmakers are close to communities: building capability; supporting grass-roots action; and delivering impact through Te Tiriti based partnerships.
Concerns about the Process
11. While we welcome the opportunity to have a national conversation about the constitutional arrangements in Aotearoa New Zealand, we have significant concerns about the process that has been followed in introducing this legislation, the consultation process, and the policy process proposed in the Bill for commencing any changes to the Treaty principles.
12. It is poor process to start this national conversation about a set of Treaty principles that have not involved or engaged the other Treaty partner. It is also inconsistent with other Treaty processes, where Treaty signatories need to discuss and agree an amendment before it goes through a ratification process. Legislation should not be the beginning of a process.
13. The ratification process proposed in the Bill only appears to involve one Treaty partner. As Minister Goldsmith mentioned in his first reading speech, there are important concerns about human rights of indigenous people being subject to a referendum process when they are not a majority of the population. There has been little to no attempts to support an informed and historically accurate conversation about the meaning of the Treaty, the current law, and consequences of changes as part of this Bill process. This opens the legislative process up to mis and disinformation and driving divisions in society, which is neither mana enhancing nor conducive to democratic principles and genuine public participation and engagement.
14. The process for beginning this national conversation is also undermined by the fact that the submission process on this Bill is short for such an important discussion and timed over the summer break when many people and organisations are on leave. Our membership has a range of views on the Treaty, and there has not been adequate time to consult with members about the proposals.
How does the Bill meet the Stated Objectives?
15. We have analysed how the process and proposals in the Bill meet the stated objectives in the Explanatory Note:
• Create greater certainty and clarity to the meaning of the principles in legislation
• Create a more robust and widely understood conception of New Zealand’s constitutional arrangements, and each person’s rights within them.
16. First, it is unclear who is struggling to understand the current principles. What is the problem definition that this proposal is attempting to address? Who has been struggling with the current definitions established through 30 years of jurisprudence and is this a current and pressing issue? Reading the first reading speeches for the bill, it appears that the fact that the court had a part to play in defining the principles is itself seen as an issue by the Bill proposer. We disagree. New Zealand has a skilled and independent judiciary, and we are not alone in having our constitution further defined by the Courts – this is the basis of many countries’ constitutional arrangements that we share legal systems with, such as the UK, Australia and the US. Given that the proposed principles are themselves to be incorporated into law, the courts will continue to have a role in using and further defining these proposed principles too, which raises questions about the validity of this argument as a justification for change.
17. Given the closed process that the Government followed in developing the principles proposed in the Bill, it is unclear how they will promote greater certainty and clarity, particularly given the absence of the other Treaty partner in this process. The redefined principles proposed in the Bill are from the Government partner alone, and there is strong sentiment within Maoridom that this legislation is another example of the Crown asserting its power and shifting course unilaterally, breaching promises made in the Treaty – actions that are being done to them rather than with them, overnight attempting to undermine and overturn years of established case law precedent that informs the relationship that Māori have with the Crown and their protected rights in the Treaty.
18. Legislating the principles reduces them to the status of legislation, which adds uncertainty because any future government may repeal or amend the principles through a standard legislative process, again without any need to first consult or seek agreement of the Treaty partner – in that future case based only on a sheer majority of Parliament. It makes the state of the Treaty and Treaty relationship more precarious and adds uncertainty to the Treaty principles and rights contained within. As drafted, the Bill only triggers a referendum in order to commence the Act and does not apply to any amendment of the legislation.
19. There are many organisations, including PNZ members, the community and voluntary sector, businesses and government agencies that are on a Te Tiriti journey and have built their working relationships, governance arrangements, policy and operations on the existing principles. For example, we know that there is strong support for upholding Te Tiriti o Waitangi for many within the social and community sector in Aotearoa New Zealand. In Community Networks Aotearoa’s 2024 State of the Sector Survey, 70% of respondents viewed the existing Te Tiriti principles positively, 23% were neutral, and 7% negative. The Bill will reduce clarity for tangata whenua, community and voluntary organisations, and the philanthropic sector. It is also likely to impose costs.
20. It is also unclear how the Bill promotes a more robust and widely understood conception of New Zealand’s constitutional arrangements given that there is little to no public education campaign and the policy process has jumped to legislation rather than engaging with the Treaty partner or the public in any meaningful way.
• Promote a national conversation about the place of the principles in our constitutional arrangements
• Build consensus about the Treaty/te Tiriti and our constitutional arrangements that will promote greater legitimacy and social cohesion.
21. While we welcome the opportunity to have a national conversation about the constitutional arrangements in Aotearoa New Zealand, as outlined above we have significant concerns about the lack of policy rationale and questionable process that has been followed in introducing this legislation. The Bill is at odds with its own objective of promoting a national conversation on constitutional arrangements by not approaching the matter in a careful or considered way. The unilateral approach undertaken by the Government undermines Māori rights and damages the trust that Māori and other communities have in the Government. Such an approach is not a meaningful national conversation. This also undermines the stated Bill objectives of building consensus, greater legitimacy, and social cohesion. There is a reason that so many people marched to Parliament against the Bill.
22. The Government’s ability to realise its other policy priorities and ambitions is also impacted by damaging the Treaty relationship. Māori are a key constituent in the economic and social future of Aotearoa and have resources to decide how to partner and where to partner for the purposes of social investment or community wellbeing. Distrust in government is likely to ripple through to service delivery and social outcomes. The Treaty is a promise between parties to take the best possible care of the whenua and each other. This is not realised or evident in this process or the proposals.