And what about the Treaty?
Social contract or house of cards?
First up, my next book, due out in February, is available at a discount for pre-orders. Routledge have a sale on books ordered from their website – 20% off one book, 25% off two books or more. If you want to pre-order my book and take advantage of this special offer, go to this link. There are no additional costs for freight from the Australian warehouse to New Zealand addresses. The special price for NZ customers is now on Routledge’s website (rrp NZ$59.99, but with a 20% discount, only NZ$47.99). Credit cards will be charged only when the book is in stock and has been released to New Zealand.
If you meet me at Victoria Park Café, Freeman’s Bay, I’ll sign it for you.
New Zealand normally wakes from its summer nap, rubs its eyes, and starts the political year with annual gatherings at Rātana Pā and Waitangi. Last year looked like an exception when prime minister Ardern resigned on 19 January, giving us an early wake-up. Again, however, this new political year is starting early. First there were allegations of theft against Green MP Golriz Ghahraman, who’s resigned from parliament (more about that below).
A more significant event, though, was Saturday’s nationwide hui at Tūrangawaewae Marae in Ngāruawāhia, called by Kiingi Tuheitia in response to discontent with policies of the new National-led government. The Kiingitanga precedes and passes the mantle on to Rātana and Waitangi.
How the shiny new prime minister, Christopher Luxon, responds to the displeasure of Māori leaders and communities over the next three weeks will set the tone for his prime-ministership. Many people accuse his government of being anti-Māori and rolling back progress on recognition of te Tiriti o Waitangi. Many of those who voted for National wanted them to repeal some related policies and law made by Labour.
Can Luxon put a clean suture on the old wound? Or will he be like former National leader Don Brash and throw salt on it?
Luxon has enjoyed no honeymoon, having charged straight into the fray of polarised politics, flanked by coalition partners Seymour and Peters. Although he met privately with Kiingi Tuheitia, Luxon declined to attend the weekend’s hui, saying: ‘It’s not actually a political event, per se, it’s actually not for politicians.’ So he ‘actually’ sent two other National politicians along in his stead. Some say it was better that he wasn’t there, out of respect for the Kiingitanga’s mana on the day. Others say he should have fronted up and taken the heat.
Naturally there are differing views about the new government among Māori leaders. Whanganui iwi leader Ken Mair attacked the government’s ‘deliberate strategy to basically erase us from legislation and policies.’ In contrast, NZ First deputy leader Shane Jones, who’s a skilled orator himself, wants a laissez-faire approach, with transmission of te reo happening ‘around the kitchen table’, not at the level of government. Mr Jones has a Welsh name, so he should know that the revival of the Welsh language required political action and support, at all levels, from local activism (including arson) right up to Plaid Cymru taking seats in the Commons. (‘Languages survive or perish based on politics’: James Griffiths).
Te Pāti Māori lobbed a grenade on Friday, releasing a leaked Ministry of Justice memo (written in the first person singular) about ACT’s Treaty Principles Bill. The bill, it said, will adopt wording from ACT’s election policy, based on the reo Māori version of te Tiriti, but applying each article to ‘all New Zealanders’. (On this, see my earlier post.) Remember that this is an ACT-initiated bill, and National has reserved the right to block it at the second reading, after select committee hearings and public submissions (i.e., consultation).
TPM’s Rawiri Waititi claimed that this memo revealed the government’s ‘intentions to erase Te Tiriti o Waitangi’. He rejects ACT’s interpretation of Te Tiriti, but it’s only an interpretation. It differs from previous judicial interpretations (the ones that Mr Waititi prefers), but it’s not an erasure. And anyway, ‘the government’ may instead choose to ‘erase’ the bill. TPM twisted the anonymous public servant’s memo.
But the real debate was led at Ngāruawāhia. I wasn’t there, but it looked very impressive: a show of strength and unity that ought to make the three parties of the coalition stop and think. This is now looking like a nation-wide movement, with more action coming.
The next three weeks will make or break Luxon’s political legacy, but so far I see a lot of unmaking and breaking going on. And Luxon’s speech to his caucus on Thursday showed that he’s stuck with that stiff-grin, middle-management tone of ‘I’m desperately trying to inspire the team’.
There’s poor leadership on all sides, however.
It doesn’t reflect well on Aotearoa that an open parliamentary debate on the Treaty is too hard for us to have. The political parties opposing ACT’s bill have suggested no alternative wording for it; they do little more than angrily denounce it outright as if the very idea offended human dignity. Seymour’s bill hasn’t been introduced yet, but it’s been rubbished as a disgrace and a breach of the Treaty, and Luxon gets blamed for it too.
If only the parties would be reasonable! If the bill were to be passed, the Treaty principles would then go to a referendum for ratification. Assuming, then, that ACT’s bill does get introduced and goes to a select committee, as planned, what do you think should happen after that?
The 1840 Treaty of Waitangi was signed by representatives of people who were then independent, and hence potentially hostile to one another, but who nonetheless knew each other well enough to negotiate something. The Treaty was executing British colonial policy, and was neither a constitution nor a statute. It acquired a significant constitutional meaning in New Zealand’s history because it opened the way for Queen Victoria’s representatives to govern in her name (Article One). In line with British law, moreover, Article Two assumed that, although the monarch would reign, she wouldn’t seize the property or undermine the authority of her new subjects. And Article Three granted rights and recognised tikanga. The job of the British monarch’s government in New Zealand was (or ought to have been) to protect the people’s customary properties and traditional status under a rule of law. The fine balance between the principles of Articles One and Two is reminiscent of the Magna Carta, by means of which (more than 600 years earlier) a relatively weak king and landed nobles reached a compromise – which didn’t last.
By the way, Queen Victoria married her German cousin Albert, or Albrecht, just four days after the signing of the Treaty at Waitangi in her name. Any news about events on the other side of the planet would’ve taken a while to arrive in London.
Te Tiriti permitted, but didn’t create, kawanatanga, and it said nothing about a runanga – or an elected assembly to pass laws and form governments. All that came later, beginning with the establishment of the colonial government in 1841. New Zealand’s House of Representatives was authorised by an Act of the UK parliament in 1852. It first assembled in Auckland in 1854. None of the members of that first parliament was actually born in Aotearoa. The first Māori MPs were also the first members born in Aotearoa, and they took their seats in 1868.
If you were serious about the idea of a Tiriti-centric society, then you’d propose scrapping te pāremata (the parliament) and having just an autocratic kawana (a governor). That would be much closer to the original 1840 text (in its historical context) than re-establishing an upper house of parliament, as Te Pāti Māori propose. They aren’t radical enough. After all, neither version of the Treaty calls for elections or representation. The General Assembly was authorised later in Westminster, not Waitangi.
Getting back to reality, no political party with seats in the present parliament disagrees with the general claim that property was unlawfully confiscated from customary owners, especially in the mid-nineteenth century, by a government of and for settlers – and such transgressions continued into recent times, over Bastion Point, for example, in the late seventies. Injustices have led to restitution, beginning in 1985 when the Waitangi Tribunal gained the legal power to investigate claims dating back to 1840.
The tribunal reaches an opinion about a historical claim, the affected party negotiates compensation with the government of the day, and (because it requires public money) the deal is approved by an Act of Parliament. These settlement bills get unanimous support in the House. On British legal principles alone, such claims would be valid, but the existence of the Treaty lends them force.
If any claimant to the tribunal denies the present-day sovereignty of the Crown in Aotearoa, on the grounds that their ancestors hadn’t ceded sovereignty in 1840, and no others did so since, then they’d also be questioning the legitimacy of the tribunal itself, along with the government and the parliament. They’d be undermining the institutional foundations of the compensation they’re seeking. That’s not a basis for successful negotiations, unless the aggrieved party really prefers to be treated as stateless, or can form and defend their own state.
There’s a good historical case that, in 1840, Māori signatories to te Tiriti weren’t intending to cede sovereignty, and hence didn’t do so. But a purely originalist approach to constitutional doctrines isn’t inevitable or compulsory. By comparison, originalist interpretations of the US Constitution (based on what ‘founding fathers’ are thought to have thought) lose sight of present-day social realities.
Whatever thoughts may have been in signatories’ minds in 1840, it’s a decision for those alive today as to whether or not to deny the legitimate sovereignty of the Crown. Anyone at all can deny it rhetorically, but membership of a fully functioning state is more of a necessity now than a choice. Statelessness, after all, is generally an undesirable state to be in.
Since my book Society and Politics (first published in 2004), I’ve argued that the Treaty wasn’t a social contract at the time of signing. Or, if it was, it was soon negated. If we take the theory seriously, a social contract means that people entrust legitimate sovereign powers to a person and/or an assembly, either tacitly or consciously. And it looks unlikely that most Māori signatories could have been intentionally – or even implicitly – transferring sovereignty (or mana) to the Crown. Over 500 Māori men and women signed the Treaty in 1840, so I’d suppose there were over 500 different opinions about it, not to mention chiefs who didn’t even sign it.
Governor Hobson evidently expressed his opinion (not universally shared even by settlers) when he declared British sovereignty.
But that was then, and we’re not shackled to the past. It works better now if the parties act as if the Treaty were an evolving social contract, the trust entailed in which has been breached, so compensation may be warranted. Refusing to see it as a social contract at all would, in principle, mean that we regard the aggrieved parties as the Crown’s potential adversaries – who nonetheless seek partnership rather than conflict – and less as citizens of the state.
The Treaty’s authority derives from the 500-plus signatories. What exactly they were bringing into existence as a result of those actions is in dispute. But we can’t rerun history, and present arrangements are what we make of them.
Local mana whenua over, for example, healthcare services isn’t explicitly mandated by the Treaty, but does fall into line with it. A national-level Māori Health Authority (MHA), as set up by the Labour government, is another matter: it’s neither required by nor in contravention of the Treaty. Similarly, abolishing it is neither required by nor in contravention of the Treaty – although the Waitangi Tribunal will say otherwise, I’m sure. Te Aka Whai Ora (MHA) may still be a sound idea from a public health perspective, given poor Māori health statistics, but it never got the chance to prove itself through long-term outcomes. National have argued that they can get better results without it, but disestablishing MHA doesn’t in itself improve anyone’s healthcare. Will the data on Māori health outcomes have improved in time for the next election? I’m sure we’ll be hearing more about that.
One reason why Labour lost in 2023 was that they invoked the Treaty in ways that many people didn’t like or see as necessary. New Zealanders have come a long way since 1985 in accepting and approving Treaty settlements, but Labour’s novel extensions of Treaty principles into public policy went too far – or too quickly – and they paid a price at the ballot box. Luxon’s ‘we don’t need another bureaucracy’ take on MHA, for example, convinced enough people to help him win.
Some on the left who object to the new government’s reversal of Labour’s policies may accuse Luxon & Co of being racists, implicitly pointing the finger at those who voted for them. But that won’t help to get their votes back next time. As we’ve learned from the populist politics of other countries, such ad hominem arguments from the left (for instance, calling Trump supporters ‘deplorables’) may only strengthen their right-wing opponents. Positive messages backed by evidence are needed if the left want to win those debates ahead of the next election.
There’s an online summary of ‘principles of the Treaty’ by Janine Hayward. Numerous acts of parliament have used the phrase ‘principles of the Treaty of Waitangi’, but left it up to the courts and the tribunal to figure out what that means. It’s ambiguous and always shifting.
Based on the online Stuff surveys in 2020, Māori opinion is quite diverse on the topic of nationhood [see page 15 in the pdf at this link], but more research is needed, as always.
Golriz Ghahraman vacates her seat
Golriz Ghahraman has vacated her seat in parliament as she faces charges relating to shoplifting. That was the appropriate step, and she can now deal with the charges as a private citizen. The Green Party have a new list MP, and they can get on with their business of talking about criminal justice and taxing the rich.
The moral of the story is straightforward: our law-makers must not be law-breakers.
We could perhaps tolerate a traffic infringement. Past offending may not be a barrier to election if the voters know about it and are satisfied that the candidate has reformed over time. Despite revelations about an assault committed while at high school, the people of Tauranga re-elected Sam Uffindell. Yes, the matter should have been revealed before the 2022 by-election, not after. But Uffindell’s margin over Labour’s Jan Tinetti rose from 6,354 to 9,370 votes.
Criminal offending – or even the allegation – while in office is another matter.
Of course the stress and pressures of Golriz’s former job – not least of which was the torrent of abuse and threats against her – are relevant. Under such circumstances, any of us could suffer mentally and do something ‘out of character’ that we’d later regret. But very few of us are asking for the public’s ongoing and profound trust as a representative and law-maker.
Former cabinet ministers have lost their portfolios, and ultimately their seats, for breaching conventions and protocols – with no allegations of criminal offending. I’m thinking of Simon Nash and Michael Wood. In Wood’s case, it’s not clear whether he was even in breach of the Cabinet Manual (if you go to the trouble of reading it). It was trial by media.
We do expect a high standard of conduct from our elected representatives, regardless of gender or colour. But those cowards who hide behind anonymous online accounts and send vile abuse and threats, especially targeting women of colour, deserve to be prosecuted.
I don’t agree, however, with those PR experts who accused the Green Party of failing to manage the shoplifting scandal. Yes, the received wisdom is always to front-foot a crisis, asap. And yes, it took a while for the Green co-leaders to get in front of the press gallery and address the issue openly. During that time, not much else was happening in NZ politics, so the matter was hitting headlines.
The X-addicts couldn’t keep their fingers off it.
Given, however, Golriz’s absence overseas and the legal sensitivity of criminal allegations, I’d argue (with no inside information) that the delay was justifiable. As Marama Davidson said, it made sense for them to meet face to face first. Golriz may also have needed to consult a lawyer once she got home. The whole scandal will soon be forgotten anyway, so the temporary lack of control of the narrative probably won’t have done the Greens much long-term political damage. Critics from the PR industry were using the crisis to promote their own brands, with the implicit message: ‘if this happens to you, then you’d better call me’. The media let themselves be used for free advertising.