The Treaty of Waitangi Revisited

The Treaty, Maori development and the Constitution

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For the last 45 years the Treaty of Waitangi has been the central icon, or pou whakapono, in Maori political discourse and action. It was one of the rallying pou for political activism from the 1960s to the 1990s.

The Treaty attained political standing and limited legal standing with the passage of the Treaty of Waitangi Act 1975 which established the Waitangi Tribunal and empowered it to investigate contemporary grievances and claims. Many Maori misunderstood the political recognition that some grievances needed to be settled via a legal or quasi-legal process for legal recognition of the Treaty itself. The Tribunal’s mandate was extended in 1985 to allow it to accept claims dating back to 1840. In that largely political and limited legal incarnation it came to underpin most Maori social and economic development initiatives, and almost all claims to settle historical grievances.

The Treaty has undergone many transformations in the way we regard it. At the moment we are having a conversation about whether it should form part of the Constitution (as entrenched supreme law). The constitutional advisory panel is considering the place of the Treaty in the New Zealand Constitution.  The questions arising in the conversation so far about the Treaty include:

  • What will happen once all historical Treaty grievances are settled?
  • Should the Treaty be entrenched?

This essay questions the prevailing mindset about the Treaty of Waitangi. E hika ma, you may not like what I have to say but stay with me and together let’s explore another viewpoint. Instead of just accepting the common view or the prevailing paradigm I think that we should from time to time take a close look at our beliefs, and the premises and assumptions underlying them. Sometimes we do confirm our beliefs, but disturbingly sometimes we realise we have just gone along with the crowd and that perhaps the crowd is wrong, or even that we are going along with the wrong crowd.

So let’s take another look at our Treaty.

A treaty is a form of contract usually between sovereign nations but in this case between a sovereign nation (Britain) on the one hand and the chiefs of many hapu on the other. In 1840 when it was signed it was a political and diplomatic document that served to legitimise the British presence in Aotearoa and purported to confer upon Maori the benefits of becoming British subjects. Some who signed it were sceptical, many were not. Many did not sign it.

There has been much contemporary speculation about the reason so many chiefs signed the Treaty and some have even stated that they didn’t really know what they were signing. Some have said that they had just a week or less to consider its implications. However I lean towards the opinion expressed by the late Wi Kuki Kaa in Te Putatara 5/90 of 21st May 1990:

“I resent the implication that the Kahui Ariki at Waitangi 1840 didnt quite know what they were about. E hika ma! They werent dumb; they were learned men, products of missionary education. They wanted, because they needed it, a document to create some form of law and order: to protect themselves from the rapaciousness of the re-settlers whose material goods had helped to improve their standard of living; but also from those of us in the Tai Rawhiti and elsewhere still smarting from the humiliations inflicted on us by Cyclone Hongi, Cyclone Pomare or Cyclone Patuone.

“The Tai Tokerau people were becoming prosperous – a situation which only thrives in a climate of peace.

“The re-settlers especially the missionaries also needed the Treaty in order to legitimise their pieces of real estate recently acquired; by hook, crook, or holy book. Nobody is going to convince me that the aims of the Confederation (Kotahitanga) were forgotten from 1835 until 1840. Ko te kai a te rangatira, he korero. So you need less than half a wit to realise that the arguments went on at hui for years, culminating in that fateful day in February 1840”.

Despite contemporary debate over its exact meaning, whether in English or Maori, it was basically a political power sharing agreement between the British and quite a few but not all chiefs of hapu. The powers to be shared and how they were to be shared were probably deliberately left open to interpretation. Formal agreements between nations with different worldviews are difficult to formalise in detail, and are often vague and open to interpretation, indicating intention to engage rather than detailed agreement.

As with the many modern diplomatic and political agreements between protagonists in the Middle East the devil is in the detail and they always unravel over the details or when political circumstances change.

Much contemporary scholarship and debate has been over the exact meaning of the Treaty rather than its original political intent. Contemporary scholarship and debate has often attempted to infer exact application to a great many contemporary issues. Therefore in contemporary times there have been hundreds of different interpretations of the intent of the document, depending on the political or economic aims of the interpreter. For a time it seemed that every Maori or Maori organisation with a grievance about anything and everything called upon the Treaty to impose obligations on the government of the day and to legitimise preferred solutions to their grievances.

The Treaty debate and process has certainly served the political aims of Maori, or some Maori, for the time being anyway, but it hasn’t greatly influenced the social and economic well being of most Maori and it doesn’t tell us much about it’s future.

Political agreements, both formal and informal, remain in force only until they no longer serve the purposes of one of the partners to the agreement. They do not stand for all time. They are agreements of convenience at the time they are negotiated.

And that is exactly the history of the Treaty of Waitangi. It is arguable that the Treaty might not have served the purposes of all Maori from the very beginning even though it was signed by and served the purposes of many chiefs, the northern chiefs in the first instance. However as soon as it no longer served the purposes of the British, after they had mustered sufficient population and military power to govern in their own right without the consent of the chiefs, the Treaty was consigned to the back of the cupboard where it became urine stained and chewed by rats.

And there it stayed for many decades.

From time to time Maori attempted to resurrect the Treaty mostly in relation to disputes over the alienation of land. The Government, now ruling in its own right without meaningful Maori participation, ignored them. The courts declared the Treaty to be no longer valid or no longer living. If the exercise of power on behalf of its primary constituency is what government is, then that was probably a legitimate political stance. It may not have been morally defensible from the Maori point of view but political reality often abjures the moral when it is inconvenient. That’s not just a Pakeha trait. It would have been equally true of inter-hapu political life in traditional Maori society. We too held to our agreements only so long as they served our own purposes.

So in the interim while the Treaty kept company with the rats in the cupboard Maori did indeed keep it alive but it was a one-sided treaty by then and one-sided treaties have no force either in law or in political engagement.

The balance can only be resurrected or restored through the weight of numbers or through political or military action. That did not happen until 1975 when the Treaty of Waitangi Act 1975 was made law, sponsored by Matiu Rata after over a decade of political activism, demonstration and networking had gained for Maori sufficient political support and moral suasion to resurrect the Treaty in limited form. Even so that was a political resurrection with very limited legal force.

The present constitutional conversation is about whether or not it should acquire legal force.

Our need to resurrect the Treaty is driven by our relative lack of political power more than anything else. If we had the political power we wouldn’t need the Treaty. Nor would we need to talk about the Treaty in a constitutional conversation.

However during that period around 1975 and in the two decades following the passage of that Act, the Treaty was transformed in the rhetoric of activist Maori from a fraud under the mantra “The Treaty is a Fraud” to the status of kawenata tapu, a sacred living covenant under the mantra “Honour the Treaty”.

As a result of that burst of political activity the “principles” of the Treaty have found their way into legislation and into a great many of the affairs of the nation. Treaty activism has been the foundation for hundreds of millions of dollars of grievance settlements and in that sense the Treaty continues to financially speak.

Many lists of Treaty principles have been devised by the Waitangi Tribunal and in the courts. In 1989 Labour government became the first New Zealand government to set out principles to guide its actions on matters relating to the treaty.

Those principles were:

  • the government has the right to govern and make laws
  • iwi have the right to organise as iwi, and, under the law, to control their resources as their own
  • all New Zealanders are equal before the law
  • both the government and iwi are obliged to accord each other reasonable cooperation on major issues of common concern
  • the government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.

The principles found their way into some legislation and guided government action, or inaction, in relation to the Treaty itself. However they are a rather weak statement of democratic principles that are found with much more clarity and force in the NZ Bill of Rights which itself has not yet been entrenched as supreme constitutional law.

The Waitangi Tribunal has formulated another set of principles including:

  • the principle of partnership;
  • the principle of active protection (of Maori interests);
  • the principle of redress for historical wrongs.

Within those principles the Tribunal has described a number of duties the Crown should observe. The acceptance of the Tribunal’s principles and duties is however a matter of political agreement at any given time by the incumbent government. To date governments have mostly accepted them and have been actively engaged in reaching settlement agreements. That process however will surely come to an end.

This year a government appointed constitutional advisory panel is consulting with the public on the place of the Treaty of Waitangi in the constitutional arrangements of New Zealand. That conversation has been sponsored by the Maori Party through its political support of the National Party in government; an exercise in political influence.

Was it the Treaty itself that brought us to this state of political balance, or was it the exercise of political influence that did it. Could not the same balance have been achieved through the common law and international law with the same exercise of political influernce by Maori. It’s a moot point but not really relevant given that the Treaty was the pou whakapono which gave focus to the political struggle. It serves our political purpose to raise the Treaty to the status of kawenata tapu.

But is that its true intrinsic value. Is it not just a convenient pou whakapono, albeit a very useful pou whakapono.

Consider this. If Maori had retained superior population numbers from 1840 until the present day and if today we were now 75% of the population or even just 51% of the population how would we now view the Treaty of Waitangi. Would we not have consigned it to the back of the pataka, hei kai mo nga kiore, and left it there even if our treaty partner agitated for its resurrection, a one sided treaty. Of course we would have. We would have totally ignored the Treaty. That’s politics and in politics the losers lose. But we were the losers so for us the Treaty lives.

So it’s not intrinsically tapu or intrinsically constitutional. Its value and status depends entirely on both partners acting in agreement. It will never be accorded the status of a constitutional founding document unless and until both partners reach political consensus. The Treaty is such a sensitive public issue anyway that consensus will require a referendum before any legislation, and to entrench it as constitutional law will require 75% of the Parliament to consent.

It is now as it was in 1840, a convenient political document, but this time convenient for the Maori partner. And only time will tell how long it remains so. I don’t see it making its way into the constitution any time soon.

Constitutionally I would prefer that the Bill of Rights be entrenched as Supreme Law rather than the Treaty of Waitangi. It would powerfully serve to curb the excesses of government and to preserve democracy for all.

Notwithstanding my view of the future of the Treaty it will be with us for some time yet. Many political, bureaucratic, academic, legal and corporate iwi careers have been built upon the Treaty of Waitangi over the last 25 years. The elites have a vested interest in maintaining the very useful fiction of the Treaty as the forever speaking founding document of the nation, and even as kawenata tapu.

Meanwhile the social and economic well being of most Maori remains unaffected and untouched by the Treaty of Waitangi in either its original or contemporary interpretation.

E hika ma, that wasn’t too bad was it? Have you changed your mind about the Treaty?

 

Previous constitutional essays:
Does a constitution protect and promote democracy
Let’s talk democracy
Abolish the Pakeha seats

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