Part 1: Considers the driving force behind the racial basis for the 2023 Census and considers the legal situation and the role of the Treaty of Waitangi.
Part 2: Sets out the events prior to the legislation being enacted and the role of the Treaty principles in developing the guidelines and principles for the new census.
Part 3: Analyses the provisions of the Data and Census Act 2022.Part 1: Stats NZ and the law
The 2023 Census is a racist process. That is not so evident in the Census form itself but in the policies and guidelines that underpin the Census process, and which are driven by the New Zealand government and Stats NZ. These driving forces are then encapsulated in The Data and Census Act 2022 which sets out the legal obligations mandating the whole of the Census process.
The Treaty of Waitangi was signed in 1840. It contained three short articles that effectively ceded sovereignty to the British Crown in return for British citizenship for all residents of New Zealand and the protection of Maori property rights.
At that time Maori lived a very primitive life in tribal groups. The Maori language was extremely basic and there was no written form. Naturally there was nothing in the Treaty about statistical information, data, or about a population census in New Zealand. There have been 34 censuses since 1840 with census legislation right up to the Statistics Act 1975. In that time there has been no reference to the Treaty or Maori rights.
However, since that date there has been an ever increasing demand for what are called Treaty rights or “principles of the Treaty” to be recognised in all new legislation even though the legislation deals with issues that did not exist at the time of the Treaty.
One might think, because all New Zealand citizens have equal citizenship rights under the Treaty, and subsequently by birth and naturalisation, that the Treaty would have no relevance to the collection of data and the census process. Not so. The tentacles of the Treaty have found their way in to every aspect of the life of New Zealanders and that includes population statistics and the census. And not in a small way. Stats NZ and the government have invented a litany of rights and obligations that are described as emanating from the Treaty but which actually are a 21st century gratuitous reappraisal of what, in their view, the Treaty should represent in the mythical land of Aotearoa. It is often referred to as “looking at the Treaty through a new lens”.
It appears that these new rights are based on the courts interpreting taonga in Article 2 of the Treaty to mean treasures rather than possessions. Since 1987 the courts have taken the very generous view first, that taonga does mean possessions but treasures, and second, it does not refer to the treasures existing in1840, but to anything of value to Maori at any time in the future. That general principle has been applied by the government and Stats NZ to the collection of personal information for the census in 2023. It is viewed as a taonga under the Treaty, and therefore the principles of the Treaty apply. The principles have been applied accordingly, as we will see in Part 2.
Legal position
The problem is that this line of thought does not reflect the legal situation. The Treaty of Waitangi and its Articles are not legally binding in New Zealand law because they have never been incorporated in New Zealand law by inclusion in a statute.
The concept of the “principles of the Treaty” was invented in the Treaty of Waitangi Act 1975. Those principles have never been formally defined but they are supposed to represent the “essence” of what the Treaty represents. The Waitangi Tribunal, in considering claims under the Treaty, has expressed its views on what those principles are but as a commission of inquiry, and not a court of law, its views are not binding on the government, the courts, or parliament.
The principles of the Treaty only become binding in New Zealand law if they are incorporated into legislation through statutes. Over 60 statutes include a Treaty clause whereby the Crown is obliged to comply with the principles of the Treaty, or words to a similar effect. The courts have been involved in interpreting some of these clauses and have been very generous in their interpretations. However, the rulings of the court relate solely to the interpretation of that specific Treaty clause in that specific statute. Certainly, a judgment may create a precedent for interpreting other Treaty clauses in other legislation, but it does not create a general principle of law.
That means that the principles of the Treaty are only relevant in law if they are included in a statute that governs the Crown’s activity in that particular area.
Until 2022 there has been no Treaty clause in any legislation affecting the collection of information for a census. The previous census act, the Statistics Act 1975 made no mention of Maori or the Treaty. Therefore, the Crown was not bound in law by the principles of the Treaty in that particular area of government.
Is the collection of national population information a Maori treasure or part of the governance of the Crown?
That is the important question. Is it one of the personal and exclusive possessions of Maori guaranteed under Article 2 including their land, dwellings and taonga? All of these were clearly the personal possessions of Maori over which the chiefs exercised (in the words of the Treaty) tino rangatiratanga. It should also be noted that the collection of nation-wide information for a census clearly did not exist in New Zealand in 1840.
Or was it part of the general operations undertaken post 1840 by the Crown in exercising its sovereignty under Article 1 over the land and all citizens, and part of the operations of the government of the country? Article 3 granted equal rights of citizenship to all residents of New Zealand. That must be taken to mean that all New Zealanders were to be treated equally in the general operations of the government, which included information collecting and having regular census.
No doubt they would have received legal advice to the effect that the principles of the Treaty are not legally binding on the Crown unless there is a Treaty clause in relevant legislation creating an obligation to comply with the principles. There was no such legislation, therefore there was no legal obligation to comply with the principles of the Treaty.
They may also have received legal advice suggesting that the proposition that in 1840 Maori had a special right in the collection of nationwide data and the operation of a census, and that this was a taonga under Article 2 of the Treaty, was a bridge too far from a legal point of view.
That means that the Crown and Stats NZ made the decision to voluntarily adopt the principles of the Treaty even though it was not required by law.
But it went beyond that. They extended the interpretation of taonga beyond the meaning of possessions and treasures that were personal to Maori in 1840 to include an activity that would become part of the general operations of the new government affecting the whole nation subsequent to the ceding of sovereignty. They decided to compromise the sovereignty ceded under Article 1 and the grant of equality of citizenship to all people under Article 3.
