Saturday, February 24

Treaty of Waitangi and its so-called principles 

Professor Margaret Mutu with whom I had written discussions in late 2023, helped me understand where she and other like-minded Maori are coming from in seeking what she calls ‘constitutional transformation’ allowing Maori self-determination through a separate Maori government. 

Mutu says, “the constitutional model that we have been discussing over the last decade envisages a Rangatiratanga Sphere (of government) where Māori make decisions for ourselves in accordance with our tikanga (law); a Kāwnantanga Sphere where the Crown makes decisions for its people (according to the rule of law); and thirdly, a Relational Sphere where Māori and the Crown come together as equals to discuss matters of common interest”. 

It is the Relational Sphere where a conciliatory and consensual democracy would be most needed. The Kāwanatanga Sphere would have no decision-making powers on anything relating to Māori. Likewise the Rangatiratanga Sphere would not have decision-making powers over anything relating to the Crown’s people (which does not include Māori). 

The Rangatiratanga Sphere will be structured along Māori societal lines. We presume the Kāwanatanga Sphere will retain its own societal structures of a parliament, public services and judiciary describing the three governments they envisage.”

Mutu concluded that with the constitutional transformation she and others envisage, everyone will be able to achieve their potential: Māori as Māori, Pākehā as Pākehā, and everyone else as who they are. And everyone can be healthy, wealthy and prosperous”. 

This suggests we would have two different sorts of citizens in Aotearoa New Zealand. Māori and non-Māori. Presumably each would choose which citizenry they would wish to be accorded? 

By contrast to Mutu’s vision, Haami Piripiri, Te Rarawa, notes the vision that Dame Whina Cooper (also of Te Rawawa) had is “the same vision that people are educated in”.

That is, says Piripiri; “The notion of a unified nation and when you have a united nation with a common cause and a collaborative population, you get amazing results.” One nation; two peoples.

While some of her peers say Professor Mutu has surprisingly little knowledge of Treaty issues and are amazed that she ever became a professor, I think her experience and qualifications support her in her role at the University of Auckland. Hers is a valid voice. However her active separatism probably does influence her as an historian. 

Professor Mutu is very clear that Maori did not cede authority and puts forward the argument in support of that.

Her peers might rather say, technically speaking, some Māori chiefs did not see themselves as ceding sovereignty. However, this is what is known as an originalist view, and is largely rejected by scholars, because it represents a snap view of history, as though nothing changed after that.  

In reality, Māori gradually acquiesced to British rule, and by the 1880s, all but a few had fully accepted British sovereignty. Mutu agrees but suggests some, perhaps many, have never acquiesced.

Dr. Ned Fletcher, says in his recent book, that those who framed the English text of the treaty, intended Māori to have continuing rights to self government (rangitiratanga) and ownership of their lands. Fletcher is correct. He based his recent book on his PhD thesis which in turn was based on Professor Paul Moon’s 2002 book on the Treaty, which Fletcher acknowledged. However, he effectively puts a full stop on the history at 1840. There is no discussion for example of the 1860 Kohimarama conference where several chiefs formally pledged themselves as British subjects, nor the subsequent events that led to Aotearoa New Zealand becoming a modern liberal democracy, one which Dame Whina Cooper hoped would be united as one Nation albeit with two Peoples. Māori, Tangata Whenua, and Pakeha, or non-Māori, as Tangata Tiriti. 

The view of successive New Zealand Governments is summed up by former Labour Prime Minister, David Lange; “The treaty cannot be any kind of founding document, as it is sometimes said to be. It does not resolve the question of sovereignty, if only because one version of it claims one form of sovereignty and the other version claims the opposite. The court of appeal once, absurdly, described it as a partnership between races, but it obviously is not. The signatories are, on one side, a distinctive group of people, and on the other, a government which established itself in New Zealand and whose successors represent all of us, whether we are descendants of the signatories or not. The treaty cannot even resolve the argument among Māori themselves in which one side maintains that you’re a Māori if you identify as such, and the other claims that it’s your links to traditional forms of association that define you as Māori.”

Lange also said: “Democratic government can accommodate Māori political aspiration in many ways. It can allocate resources in ways that reflect the particular interests of Māori people. It can delegate authority, and allow the exercise of degrees of Maori autonomy. What it cannot do is acknowledge the existence of a separate sovereignty. As soon as it does that, it isn’t a democracy. We can have a democratic form of government or we can have indigenous sovereignty. They can’t coexist and we can’t have them both.”

Professor Mutu however puts forward how we could choose co-existing Māori and non-Māori governments. However, most people are unlikely to support that and it’s likely most Māori would not either. Only a divisive referendum would tell us what Māori and non-Māori would support.

As of now, the coalition government has no desire to alter the Treaty. ACT has a Bill to legislatively define the Treaty ‘principles’ established by our Court of Appeal in 1987 and extended since by the Waitangi Tribunal. 

David Seymour’s Treaty Principles Bill sets out three principles, I suppose to replace the old ones. They are:

  • The New Zealand Government has the right to govern all New Zealanders
  • The New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property
  • All New Zealanders are equal under the law with the same rights and duties

In my view that is wrong even if it sounds good. Let me explain. 

The treaty sets out the agreement between the Crown and Māori and the ‘principles’ Seymour seeks to replace are more akin to a re-writing of the Treaty than they are to the existing confusing ‘principles’. 

The ‘principles’ confusion started in 1987 when Cooke J delivered the judgment of the Court of Appeal in the landmark case which sought to clarify what Parliament meant by section 9 of the State Owned Enterprises Act 1986. The Act stated “Nothing in this act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”, but what those principles might be was left to the courts to decide. The principles elicited by Appeal Court President Cooke gave legal recognition to the special relationship between the Crown and Māori. Cooke held that “the Treaty created an enduring relationship of a fiduciary nature akin to a ‘partnership’, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other”. This principle of partnership continues to shape the legal relations between the Crown and Maori to this day.

These together with Waitangi Tribunal creep are said to be: reciprocity, active protection, partnership, equity, and equal treatment. And they have muddied the waters. It’s time to abolish all these so-called ‘principles’ and stop more being added. 

I agree with King Tuhetia, Tainui, who said last week: “There’s no principles, the Treaty is written. That’s it.”

Winston Peters has been saying the same for decades. 

Please, New Zealand don’t get angry. Become informed. Debate the issues. I have confidence in the current National-led coalition government to NOT pass Seymour’s Bill that confuses current principles with what he would like the Treaty itself to say. Nor will the government change the Treaty of Waitangi. But it does need to pass a Bill abolishing all current confusing ‘principles’ and to stop more from being added.

Maybe that’s what Seymour’s Bill could be amended to in the Select Committee. 

Author