Fri Mar 1

Do the principles of the Treaty of Waitangi really give Māori too much power – or not enough?

Written by Dominic O'Sullivan, Adjunct Professor, Faculty of Health and Environmental Sciences, Auckland University of Technology, and Professor of Political Science, Charles Sturt University

This week parliament acted urgently to disestablish the Māori Health Authority. The hurry was to circumvent an urgent Waitangi Tribunal hearing on whether the proposal breached te Tiriti o Waitangi (Treaty of Waitangi) and its principles.

Te Pāti Maori’s co-leader, Debbie Ngarewa-Packer, said ^[1]: “The government’s use and abuse of urgency has created a dictatorship in what should be a Tiriti-led democratic state.”

We have heard a lot about the Treaty “principles” since last year’s election.

But just what these principles are, and how they should be interpreted in law, remain open to contest – including by those who argue the principles actually limit some of the political rights that fairly belong to Māori people.

No rigid rule book

When parliament established the Waitangi Tribunal in 1975, one of its jobs ^[2] was to “provide for the observance, and confirmation, of the principles of the Treaty of Waitangi”.

There isn’t a definitive and permanent list of principles. They have evolved as new problems and possibilities arise, and as different ideas develop about what governments should and shouldn’t do. Te Tiriti, in other words, can’t be a rigid rule book.

But the Treaty’s articles are clear:

governments should always be allowed to govern (article 1)
the powers of government are qualified by Māori political communities (iwi ^[3] and hapu ^[4]) exercising authority and responsibility over their own affairs (article 2)
and government is contextualised by Māori people being New Zealand citizens whose political rights and capacities may be expressed with equal tikanga ^[5] (custom, values, protocol) (article 3).

Perhaps the real question, then, is how to bring these articles into effect. The Waitangi Tribunal, parliament and courts developed the principles over time as interpretative guides. They include ^[6] partnership, participation, mutual benefit, good faith, reciprocity, rangatiratanga ^[7] (independent authoity) and kāwanatanga ^[8] (government).

In 1992 the Court of Appeal said ^[9]:

It is the principles of the Treaty which are to be applied, not the literal words […] The differences between the [English and Māori] texts and shades of meaning are less important than the spirit.

But the “spirit” of te Tiriti, too, is vague and open to contest.

Prime Minister Christopher Luxon and Deputy Prime Minister Winston Peters in parliament

Prime Minister Christopher Luxon and Deputy Prime Minister Winston Peters lead a coalition government uncomfortable with the direction of Treaty politics. Getty Images

The Māori text prevails

The English text of te Tiriti says Māori gave away their sovereignty to the British Crown. The Māori text says they only gave away rights of government. But both texts were clear: Māori authority over their own affairs wasn’t surrendered, and government wasn’t an unconstrained power allowing other people to do harm to Māori.

It’s also significant that only 39 people ^[10] signed the English-language agreement (they didn’t read English and had it explained to them in Māori). More than 500 signed the Māori text. The former chief justice Sian Elias said, “it can’t be disputed that the Treaty is actually the Māori text ^[11]”.

The New Zealand First party argues ^[13] the principles often appear in legislation without clear explanation of their relevance or what they’re intended to achieve. It says they should be clarified or removed.

The ACT party goes further ^[14] and says the principles are often interpreted to give Māori greater political voice than other New Zealanders. It says the Treaty promised equality, and this should be enshrined in law – through rewritten principles that would limit Māori influence.

Equal political voice

There’s a counterargument, however, that says Māori influence is limited enough already. And it’s the principles that constrain Māori authority over their own affairs and give Māori citizens less than their fair influence over public decisions.

The idea that Māori are the Crown’s partners, rather than shareholders in its authority, seriously weakens Māori influence.

Participation, on the other hand, should strengthen it, and was one of the Treaty principles the Māori Health Authority was established to support. Abolishing the authority ^[15] overrides that principle. But it also takes decision-making about Māori health away from Māori experts.

This may undermine effective health policy. But it also undermines te Tiriti’s articles themselves. These include the idea that government is for everybody and everybody should share decision-making authority; and the idea that Māori people use their own institutions to make decisions about their own wellbeing.

Ultimately, the question is: if some people can’t contribute to policy-making in ways that make sense for them, then do they really have equal opportunities for political voice?

The problem with ‘race’

The picture is further confused by reference to “race”. In 1987, the Court of Appeal said ^[16] the “Treaty signified a partnership between races”. It said partnership – a significant Treaty principle – should help the parties find a “true path to progress for both races”.

But te Tiriti doesn’t use the word “race”, or anything similar. It recognised hapu as political communities, and established kawanatanga as a new political body.

So, whether we just focus on the Treaty articles, or find it useful to have principles to help with interpretation, we need to work out what hapu do and what government does, and how they relate to one another.

We don’t need to know what different “races” should do. Race is simply a “classification system ^[18]” colonial powers use to place themselves above the colonised in a hierarchy of human worth.

Instead, people are born into cultures formed by place, family and language – what Māori call “whakapapa ^[19]”. Te Tiriti gave settlers a place and a form of government to secure their belonging. It also said Māori continue to belong on their own terms.

There can’t be equality without acceptance of these ideas of who belongs, and how.

A simpler solution

Citizenship tells us who “owns” the state. If partnership implies the Crown represents only non-Māori, it puts Māori people on the outside. It says government really belongs to “us”, and “you” don’t participate in “our” affairs.

The liberal democratic argument ^[20], however, is that the state is “owned” equally by each and every citizen. Māori citizens are as much shareholders in the authority of the state as anybody else. They should be able to say the powers, authority and responsibilities of the state work equally well for them.

People think and reason through culture. Colonial experiences influence what people expect politics to achieve. This is why it’s fair to insist that Māori citizenship is exercised with equal tikanga.

The Treaty principles can be critiqued from many perspectives. They change because they are only interpretive guides that can be accepted, rejected, challenged and developed.

So, rather than refer to these principles in legislation, and leave them for courts and the Waitangi Tribunal to define, maybe there’s a simpler solution.

Each act of parliament could simply state: “This Act will be interpreted and administered to maintain and develop rangatiratanga, and otherwise work equally well for Māori as for other citizens.”

The principle of equality would be established. And it would be for Māori citizens to determine what “equally well” means for them.