On the Treaty of Waitangi

ACT Party wants a referendum on the principles of the Treaty. Are we up for that?

Policies of co-governance and indigenous self-determination, often based on a principle of partnership derived from the 1840 Treaty of Waitangi, are set to be hot topics for New Zealand’s election debate this year.

I’ll begin with the libertarian ACT Party’s policy (which is lengthy, but one can read it). I’m not sold on their interpretation of Article 2 (seen as a general protection of property rights) but let’s look at their proposed process for codifying the principles of the Treaty.

For background, Aotearoa New Zealand (or Nu Tirani in te Tiriti) has no super-ordinate written constitution. The Treaty of Waitangi is a founding historical document, in part because Article 1 permitted government in Queen Victoria’s name. But it’s a treaty, not a constitution.

Since then, NZ parliaments passed laws that have constitutional effects, notably the Constitution Act 1986 (which brought an end to the UK parliament’s NZ Constitution Act 1852), the NZ Bill of Rights Act 1990 and the Parliamentary Privilege Act 2014. The latter clarifies the effect of Article 9 of England’s Bill of Rights 1688 in New Zealand law.*

My point is that NZ parliaments have often codified constitutional matters … and the sky hasn’t fallen in.

Parliament also passed the morally controversial End of Life Choice Act 2019 to permit assisted dying. But this Act could only come into force twelve months after being approved by a referendum.

The Bill was introduced by ACT’s David Seymour, but an amendment to incorporate a referendum came from the NZ First Party as a condition of their support. In 2020 it was ratified by 66% of voters. The system worked on that occasion.

Now the ACT Party is proposing a Bill that codifies principles of the Treaty, which, if it gets passed, would also need a binding referendum to come into force. Such a law would then supersede (and, I daresay, confirm) the gradual changes to official understanding of Treaty principles which have accrued through judicial decisions and administrative measures. Unelected public servants and judges would then be guided by statute, rather than making interpretations without asking us.

Members of parliament would have to debate the issue openly and come up with wording that interprets the Treaty text for present times and the future. In doing so, they’d hear public submissions and devise a formula that could gain majority approval. I expect they’d be mindful of gaining approval of the majority of Māori in particular. In this case, the views of the indigenous people are crucial.

This sounds like a hellish debate, but I’m optimistic that a formulation can be found that would satisfy majorities of Māori and non-Māori New Zealanders.

Past efforts to reform the New Zealand constitution have been quietly set aside, in part because politicians just didn’t want a heated Treaty debate that would invoke racist opinions and counter-accusations.

It may be high time, however, that the principles of the Treaty were clarified, rather than put it off till the (inevitable) day when New Zealanders have to write an entirely new constitution in one go.

Indigenous self-determination and co-governance are already part of the pre-election debate. So I’ll point to some of the differing positions held now.

The Māori Party maintain that the Treaty “awarded total custodianship of Aotearoa to the Crown”. It also “put beyond all doubt … the right of Māori to have total control and governance of all their own domains … [and it] asserted that Māori would be treated equally with all non-Māori.” They want to have a Māori parliament and to become a republic.

The National Party sees the state (“the Crown”) and the indigenous people as working together, but asserts the government’s sole right in acting for the sovereign. They accept that there are inter-ethnic inequities, but they don’t support co-governance in public services as a solution to that. And they want Treaty settlements all sorted by 2030.

The incumbent Labour prime minister, Chris Hipkins, has stated that he’d like to see a mature and open debate about the differing views on this matter. His government has introduced some co-governance structures, in public health and in water infrastructure in particular. These are proving to be politically contentious.

I won’t draft a version of Treaty principles on my own here. That’s better done in a public deliberative context. But, for about the last three decades, it’s become increasingly recognised that the many chiefs who signed the Treaty in 1840 weren’t ceding their sovereignty.

To wrap up, here are two approaches to the task of clarifying the Treaty’s principles.

One I’ll call “originalist”, which says that, if we can get back to the original intent of the Treaty signatories, then we’ll get a more authentic and valid understanding, and hence be better placed to deal with present-day challenges. Treaty principles should be grounded in a credible historical narrative of 1840 and all that. No matter how well this is done, however, honouring the wishes of ancestors (British or Māori) will, to some extent, be turned towards present-day objectives.

The other model I’ll call “evolutionary”: even though we comprehend their history, the founding documents of the past (let’s also cite Magna Carta and the 1688 Bill of Rights) must evolve and be reinterpreted to serve present-day needs. Their moments of signing weren’t set in stone and don’t determine what we do today. To clarify the meaning of the 1688 Bill of Rights, for example, parliament didn’t have to stick to what its drafters were thinking back then.

Those two approaches aren’t mutually exclusive. I’d even venture to suggest that the differences between the Māori and the ACT parties on the Treaty principles aren’t as great as we might imagine. I’d love to see them sit down together and thrash out a draft!

If one wanted such a process to succeed, I’d suggest that the aim should be to keep it simple. The more “wish-list” items that the parties try to cram into a Treaty principles Bill, the harder it will be to pass it, either in the House or later at a referendum.

Perhaps I should have added a third “revolutionary” approach, though... What do you think?

Please use moderate and respectful language. Address principles. Don’t attack people.

* Article 9, Bill of Rights 1688 states: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”