Principles of the Treaty of Waitangi: will Parliament tell us what they are?
Or will the country's elected representatives avoid that job?
A tough debate about the ACT Party’s Treaty Principles Bill is looming. Can politicians find some more common ground?
The Treaty of Waitangi Act 1975 was amended in 1985 to hear claims by Māori for historical injustices dating back to 1840. Since then there’ve been many processes of historical research, hearings and recommendations from the Waitangi Tribunal. The tribunal’s website says it’s completed over 125 inquiries and issued over 150 reports. Its findings aren’t binding, however. Its recommendations are the basis for negotiated settlements which are then approved by Act of Parliament.
I’ve counted 11 settlement bills before the House at present. These bills pass without opposition. That is, every party in the House supports them. Even the right-wing libertarian ACT Party consistently supports Treaty settlement legislation. They do so on grounds of restitution for past injustices, property rights and self-determination. They routinely acknowledge the history of warfare and land confiscations.
Even Don Brash, former National Party leader, in his notorious Orewa speech in 2004 said that “National is absolutely committed to completing the settlement of historical grievances”. And yes, he also said: “We intend to remove divisive race-based features from legislation.” The two statements were not mutually contradictory.
The progress made in Treaty settlements under National- and Labour-led governments since the late 1980s is, by international standards, very impressive, even though the settlements don’t fully compensate the claimants. Painstaking processes of historical investigation and restitution have been backed by parliamentary unanimity. There’s a bedrock of political consensus about the Treaty and its present-day effects, but there are also some controversies.
Mutual accusations
The National/Act/NZ First coalition government has made a number of changes that may breach Treaty obligations:
Legislation to reinstate polls on Māori wards and Māori constituencies in local government.
The repeal of section 7AA of the Oranga Tamariki Act 1989 that relates to obligations under the Treaty to care for children.
The disestablishment of Te Aka Whai Ora, the Māori Health Authority, formed by the previous government.
Actions that disproportionately affect Māori, such as the repeal of the previous government’s smoking ban.
Whether or not these policies are actually breaches of Treaty obligations depends on what you believe those obligations to be. The opinion of the Waitangi Tribunal will be influential, but it’s not law. And the black-and-white text of the Treaty is silent on elections, adoptions and healthcare, for example. The state is obliged to perform those functions by some means or other nevertheless. And no one can seriously disagree that Māori, as a population, suffer relative social and economic disadvantage.
The controversies around the recent policy changes have led to claims that the present government is racist, anti-Māori and ignorant of the past. One commentator has noted that conservative parties regard “recent reinterpretations of the Treaty as sowing social division and weakening national unity”. But they may be out of line with public opinion which (according to a survey) largely accepts the Treaty as a historically significant founding or unifying document.
On the other hand, the ACT Party sees Treaty “partnership” as having stretched too far. They say it’s being used “to argue there are two types of people in New Zealand – tangata whenua (land people) and tangata tiriti (Treaty people) – who each have different political and legal rights”.
Accusations that people are being “divisive” or “racist” fly in both directions. The mutual accusations of divisiveness have become divisive in themselves.
This debate is set to become more intense when the ACT Party’s Treaty Principles Bill is introduced.
ACT’s interpretation of Article 2
A contentious point will be the ACT Party’s interpretation of Article 2 of the Treaty: “ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou whenua o ratou kainga me o ratou taonga katoa”. They take this to mean that “the New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property”.
This take on Article 2 omits part of the sentence, which is, in full: “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”. ACT claim that nga tangata katoa o Nu Tirani embraces all New Zealanders, and that the basic rights that Article 2 confers on the indigenous tribes are held equally by all citizens. (The second sentence of Article 2 regarding Crown pre-emption of land sales is now redundant, but no one laments the “abolition” of that provision.)
The generally accepted English translation of Article 2 by Prof Sir Hugh Kawharu is: “The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures.” A lot depends on whether “all the people of New Zealand” refers exclusively to indigenous chiefs and subtribes or embraces the new settlers as well.
ACT’s reading of Article 2 as inclusive of all New Zealanders has been described as “novel” and even “fabricated”. It uses a grammatical ambiguity to advance an interpretation that I hadn’t noticed before. But “partnership”, which arguably was fabricated by the Court of Appeal in 1987, was also a novel interpretation back then. So novel fabrications aren’t inherently wrong.
The Treaty was hastily drafted and poorly translated, so its meaning and intent will forever be subject to debate and revision. Imprecisely worded documents invite differing interpretations. The subsequent historical injustices and ongoing harm make hermeneutic controversies all the more intense. No one is trying to abolish or rewrite the Treaty/te Tiriti itself, however.
What next?
The Treaty Principles Bill will be supported through its first reading and on to the select committee. The National Party has given no commitment beyond that, as they see it as causing a divisive debate. So it’s really the ACT Party’s bill, not the government’s. ACT used their post-election bargaining power to get the bill onto the parliamentary agenda.
Underlying the present political debate is a sound consensus:
The Treaty is a founding document.
Māori suffered unjust losses of property and recognition.
The Treaty authorises reconciliation and restitution under due process of law.
People on both sides of the debate argue for a unifying interpretation of the nation’s foundation that will work for the future. They just see different ways of getting there, and they each accuse their opponents of being divisive.
The outstanding practical policy controversies are not about Treaty settlements; they’re largely about how (or how far) governments should implement a principle of “partnership” in public policy.
In 1989 David Lange’s Labour government set out principles to guide its actions on matters relating to the Treaty. But parliament hasn’t codified in statute “the principles of the Treaty”, even though many laws use that phrase. No wonder there’s confusion. Any of the parties could at least have tried to introduce a Treaty principles bill, but the ACT Party took the initiative.
Most lawmakers would rather drop this hot potato. They’ve shown this reluctance before (in 2005 and 2013) when they swept the idea of writing a constitution under the carpet.
Whatever the initial wording of the Treaty principles bill, it can always be amended as it goes through the legislative process, or even afterwards – that is, if it isn’t killed off by the National Party at the second reading.
The political parties have unanimously supported Treaty settlements. It may be time to seek a consensus on how New Zealanders should now understand the principles of the Treaty. If members of parliament are unwilling to do this, then they’re not leading – or not even trying to lead.
Those who aren’t throwing petrol on the fire are ducking for cover. And cancelling ACT’s bill won’t put an end to the arguments.
Thank you, Grant, for raising this matter in the way you have.
At its core, I do sense we have to be most careful with our language, which means the way we formulate our very questions, since this will determine the kind of answers we can and cannot come to. It is always the case in any field of enquiry: the very form of the questions determines to a high degree the kinds of answers.
For example, already, when discussing principles, some comments also presuppose a partnership between two parties, namely the crown and Māori. Others speak of a partnership between Maori
and Pakeha. What’s all a bit loosey goosey is the failure to appreciate sufficiently the 1987 Lands case and the due language of the five Judges.
Here’s a link that might assist (and sure; while we’ve all got sundry provenances, I merely try to pay attention to many!):
https://www.nzcpr.com/fairy-tales-for-the-gullible/
ACT introducing a bill setting a version of the principles of Te Tiriti is fundamentally at odds with the principle that both parties to an agreement should, if necessary, clarify its content and implications.