Hardly anyone says what are ‘the principles of the treaty’. The courts’ interpretation restrain the New Zealand Government. While they about protecting a particular community, those restraints apply equally to all community in a liberal democracy – including a single person.
Treaty principles were introduced into the governance of New Zealand by the Treaty of Waitangi Act 1975 whose purpose was ‘to determine whether certain matters are inconsistent with the principles of the Treaty.’ However, the Act did not state what those principles were.
The Court of Appeal had to define the principles in the case of New Zealand Māori Council v Attorney-General (1987) (a.k.a. the ‘Lands’ case or the ‘SOE’ case) because they are in the State-Owned Enterprises Act 1986. The judges did not codify their principles, but a common summary of their conclusions is:
The Crown has the right to govern. The principles of the treaty ‘do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy. Indeed, to try and shackle the Government unreasonably would itself be inconsistent with those principles’.
The Crown has a duty to act reasonably and in good faith. The relationship is ‘akin to partnership between the Crown and Māori people, and of its obligation on each side to act in good faith.’ The judgment draws parallels with ‘our partnership laws’.
The Crown has a duty to protect Māori interests. ‘The duty of the Crown was not just passive but extended to active protection of Māori people in the use of their lands and waters to the fullest extent practicable.’
The government should make informed decisions. The Court said that in order to act reasonably and in good faith, the government must make sure it was informed in making decisions relating to the treaty. That will ‘require some consultation’.
The Crown should remedy past grievances. ‘If the Waitangi Tribunal finds merit in a claim and recommends redress, the Crown should grant at least some form of redress, unless there are grounds justifying a reasonable Treaty partner in withholding it – which would be only in very special circumstances, if ever.’
Subsequently the Waitangi Tribunal endorsed these principles.
In 1989 the New Zealand government responded to the Court of Appeal with a set of principles. No subsequent government has modified them. They were:
The government has the right to govern and make laws. (The kāwanatanga principle)
Iwi have the right to organise as iwi, and, under the law, to control their resources as their own. (The rangatiratanga principle)
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.
As lawyers have pointed out, Article 3 of Te Tiriti applies to all New Zealanders. If the term ‘Māori’ is replaced by ‘New Zealander’ and the term ‘iwi’ by ‘voluntary associations’ the above principles are those intrinsic to the governance of a civilised liberal democracy.
Suppose every Māori was to disappear (perhaps a virus wiped out everyone with a Māori gene). Which of these principles in its generalised form would become redundant? I hope none of them. While their effect is to restrain the government in its treatment of a particular group (Māori), in a liberal democracy those restraints apply equally to all – including the minority of one person. They are generally not platitudes; many hardly apply in Putin’s Russia.
The implication of Article 3 is that individual Māori do not have a special status. But do iwi, Māori collective institutions? (Because Māori have a right to develop, today’s ‘iwi’ covers not only the tribes which were their social organisations in 1840 but more recently evolved ones, such as the Māori Women’s Welfare League and the Māori Urban Authorities.)
Do the treaty principles give iwi special rights? Yes and no. They say that the Crown is duty bound to consult iwi. But consultation is an integral element of a liberal democracy. Iwi are fortunate that their right is stated more explicitly.
I’ve discussed the issue of co-governance here. Even as Prime Minister, Chris Hipkins said he did not understand what it means. Public discussion has muddled self-government, partnership, co-management and co-governance. The three earlier notions are integral to the running of a liberal democracy.
While Māori claim kaitiakitanga (guardianship) rights over community and public property, so do a lot of my green friends. They are examples of taonga katoa, discussed below.
I am not sure whether preservation and promotion of Māori culture is a Tiriti issue. Any civilised society would do that. (The same applies to Pasifika culture, given Aotearoa New Zealand’s share of those peoples.) Te reo is discussed below.
So how are we to judge ACT’s proposed Treaty Principles Bill? The bill is not yet before Parliament, but ACT’s manifesto said it would define the principles of the treaty as:
The New Zealand Government has the right to govern New Zealand.
The New Zealand Government will protect all New Zealanders’ authority over their land and other property.
All New Zealanders are equal under the law, with the same rights and duties.
The proposal looks like an attempt to redefine Te Tiriti o Waitangi. Evolving the interpretation of past events is organic; putting one in statute is not; it fossilises it. At a deeper level, it is not unusual for an authoritarian state to reinterpret history to suit itself. (Witness Putin about the history of the Ukraine.)
While its principles 1 and 3 are consistent with those of the Court of Appeal, the ACT proposal omits other key treaty principles. One is uneasy that we should pass a law which seems to repeal so casually the deliberations of the courts on such weighty matters, especially as those that underpin a liberal democracy.
ACT’s Principle 2 is narrower than the principles set out by the Court of Appeal. It is a limited interpretation of the second article of Te Tiriti, reflecting the neoliberal view that it is only about private property rights. Māori had few of those in 1840; property rights were held by the community, much to the frustration of Europeans who wanted to acquire land. Neoliberals object to community ownership. (Elinor Ostrom was made a Nobel Laureate in 2009 for her work explaining how such collective ownership can work very effectively.)
Moreover, the second article of Te Tiriti covers far more that what we conventionally think of as private property. We can see that from the evolution of the drafts of the treaty. Up to what is called the ‘English version’ there was a list – ‘Lands and Estates Forests Fisheries and other properties’. The text signed on the treaty grounds jumps to ‘ratou wenua o ratou kainga me o ratou taonga katoa’– ‘their lands, their villages and all their treasured things’. (Because translators would not make that jump, I am of the view there was a revised English draft from which Te Tiriti was translated; it probably ended up in Colenso’s – now lost – papers.)
‘Taonga katoa’ is a very strong term – much more encompassing than ACT’s ‘other property’. For instance, the courts have ruled that ‘te reo’ is one of those taonga. Had this been raised with Māori on 6 February 1840 – unlikely because people didn’t think that way then – the Māori response would probably have been ‘he aha to tikanga?’ – ‘what do you mean?’ Ask it today, the response is a very positive ‘āe, āe’.
My thinking is greatly influenced by Edmund Burke and, indeed, Friedrich Hayek when he is not a neoliberal. They saw organic development at the core of social progress. Sometimes the government has to accelerate or enable it. It should avoid retarding it or fossilising it. That is what the ACT proposal does.
In arguing that the ACT proposal retards organic development and undermines democratic principles, I am not arguing that the party is inherently reactionary or authoritarian. Rather, I don’t think the proponents of the bill have thought these issues through. We shall see how they respond when such issues are drawn to their attention. One hopes they will reaffirm the Court of Appeal’s principles of the treaty which underpin a liberal democracy and adopt a more accurate historical account of the drafting of Te Tiriti and the subsequent organic evolution of its interpretation.
The paper on which this column is based has been checked with various legal authorities.