Comparing the articles of Te Tiriti-o-Waitangi with the ACT Party’s proposed principles, Feb 2024

The ACT Party has proposed a ‘Treaty Principles Bill’ which they assert ‘would restore the mana of our founding document by ensuring it delivers what it originally promised in 1840: nga tikanga katoa rite tahi – the same rights and duties for all New Zealanders.’  They further explain:

The Treaty Principles Bill will not change the Treaty itself. That was set in 1840 and will remain forever. What we are seeking to do is continue the process of defining the Treaty principles, for the first time incorporating the voices of all people through a democratic Parliamentary process, instead of through the Tribunal or the courts.

See here for the source of these quotes and for further information from the ACT Party: https://www.treaty.nz/

The ACT Party have placed three proposed principles on their website and it is helpful to compare these proposed principles with the actual texts of both Te Tiriti-o-Waitangi and the Treaty of Waitangi. Please note that the principles that appear on the ACT Party website are not yet the text of the proposed 'Treaty Principles Bill.' However, these principles (which appear on their website) offer one an insight into their thinking.

Articles of Te Tiriti-o-Waitangi	Principles of the Treaty of Waitangi as proposed by the ACT Party
Ko te tuatahi Ko nga Rangatira o te wakaminenga me nga Rangatira katoa hoki ki hai i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu – te Kawanatanga katoa o o ratou wenua.	Article 1: kawanatanga katoa o o ratou whenua - The New Zealand Government has the right to govern all New Zealanders .
Ko te tuarua Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu – ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia ko nga Rangatira o te wakaminenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o era wahi wenua e pai ai te tangata nona te wenua – ki te ritenga o te utu e wakaritea ai e ratou ko te kai hoko e meatia nei e te Kuini hei kai hoko mona.	Article 2: ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou whenua o ratou kainga me o ratou taonga katoa - The New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property
Ko te tuatoru Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini – Ka tiakina e te Kuini o Ingarani nga tangata maori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani.	Article 3: a ratou nga tikanga katoa rite tahi - All New Zealanders are equal under the law with the same rights and duties

Here is a table comparing ACT’s proposed principles with the text of the English Treaty of Waitangi.

Articles of The Treaty of Waitangi	Principles of the Treaty of Waitangi as proposed by the ACT Party
The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole sovereigns thereof.	Article 1: kawanatanga katoa o o ratou whenua - The New Zealand Government has the right to govern all New Zealanders
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.	Article 2: ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou whenua o ratou kainga me o ratou taonga katoa - The New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property
In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.	Article 3: a ratou nga tikanga katoa rite tahi - All New Zealanders are equal under the law with the same rights and duties

The full texts of both Te Tiriti-o-Waitangi and the Treaty of Waitangi can be found here:

https://www.archives.govt.nz/discover-our-stories/the-treaty-of-waitangi/what-te-tiriti-o-waitangi-says-in-english-and-te-reo-maori

Discussion
There are many things that can be said about the ACT Party’s proposals and those who specialise in Treaty/Tiriti jurisprudence will be able to add considerable detail. However, for now, the two points that I would make are these:

• The ACT Party’s proposed ‘principles’ rewrite the text of Te Tiriti/Treaty. Their statement which reads, ‘The Treaty Principles Bill will not change the Treaty itself. That was set in 1840 and will remain forever’ is disingenuous on their part. This is because, unlike the Treaty principles first proposed in the famous 1987 SOE Case, the ACT Party's so-called 'principles' will, in effect, replace the articles of Te Tiriti itself because (1) the three principles clearly relate and respond to the three existing articles; and (2) they are not principles, conceptually, in the same vein as those proposed in the 1987 SOE Case. Those principles include the following:
• The duty to act reasonably and in good faith
• Active Crown protection of Māori interests
• The government should make informed decisions 
• The Crown should remedy past grievances
• The Crown has the right to govern (For source and further discussion, see here.)
• The ACT Party’s proposed ‘principles’ will extinguish particular rights granted 'ki nga rangatira, ki nga hapu' by removing these words altogether and by extending tino rangatiratanga to include all people, not just those who signed Te Tiriti and their descendants. ACT ignores the fact that the provisions of Article 2 in Te Tiriti were clearly to be enjoyed by Māori, particularly those who signed Te Tiriti. Article Two of Te Tiriti clearly confirms and guarantees in perpetuity pre-existing rights enjoyed by iwi/hapū/whānau communities throughout the country. If there are unusual, new and separate rights established through Te Tiriti, they were not those pre-existing rights already enjoyed by Māori ancestors but the new right created for the Crown of England to establish Kāwanatanga in this country. In the history of human settlement in Aotearoa and Te Wai Pounamu, it is the Crown's right to create Kāwanatanga that is new, unusual and separate. 

(There are other things too that could be said - such as the way the proposed principles reduce tino rangatiratanga to a matter of property rights only when it relates to every aspect of the lifeways, culture and existence of the tangata whenua.)