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August 5, 2013 | by  | in Features Homepage |
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Treaty Values: A Conversation Lacking

The Treaty of Waitangi is embedded in the New Zealand psyche. It is simultaneously considered our most important constitutional document and also the most boring part of your year of history. It is outdated and omnipresent. In this year of constitutional review, we need to bridge that gap, but where to from here for Te Tiriti?

57,382 people support The Pakeha Party on Facebook. Almost overnight, a party which veils its racism behind a human-rights banner became hugely popular. Their rise to stardom suggests something ugly about the bicultural unity of our nation. The Treaty of Waitangi has been an epicentre of tension between Māori and Pākehā for generations. Today is no different. The current approach by the Government to the Treaty of Waitangi has led to the fracturing of New Zealand along racial lines.

This year is a chance to deal with that schism. The Constitutional Advisory Panel was set up by the Government to hear submissions by the public as to the constitutional make-up of our country. It seeks answers to fundamental questions: do we want a US-style constitution? And if so, what would we include and what values would it be founded upon? Should the majority be able to pass laws that oppress the few, as long as it is ‘democratic’? Should it be a big deal that some kid in England called George is born? Do we care that the Government has been reading our Facebook Chat for years to stop terrorism in Yemen?

A crucial part of this conversation involves New Zealand thinking hard about that fateful document that dominated your study of history: the Treaty of Waitangi. The Treaty is considered by some to be the founding document of our nation; others consider it outdated and riddled with errors. As Professor Claudia Geiringer of Victoria University, a public-law expert, notes, the Treaty is currently a “roadblock” to change in other dimensions of our constitution. In light of that, we need to deepen our understanding of the Treaty: unearth its past and present treatment in New Zealand in order to start tentatively spelling out the future for the Treaty in our modern constitution.

DISCLAIMER: I am a white guy. I grew up in England. I am a winner from colonisation. I did Year 13 history. I studied Public Law. But that’s it. Thus, I have deferred to the experts where I can.

Before we begin, a note on constitutions: A constitution is merely a set of values that determine the rules that govern the relationship between the government and the people. It may be written down in one document as in the United States, or unwritten (comprising of many documents and principles), as it is in New Zealand. In 2008, in a deal made between the National Party and Māori Party, the Constitutional Advisory Panel was set up. It has three goals. Firstly, it is supposed to educate the public as to the constitutional structure of New Zealand; secondly, it must garner views from the public as to the constitution that they want for New Zealand; and finally, it must report to the Government recommendations for how our constitution should evolve. Its findings will likely be pivotal in the decision finally made by the Government. Unfortunately, if you’re like me, you will not have heard about it. In fact, had political hacks not dominated my newsfeed by liking its page, I would be wholly ignorant as to its existence.

 A history in 420 words

The Treaty of Waitangi gave legal validity to the white man governing New Zealand. The British version of the Treaty granted the British sovereignty over New Zealand, whereas the Māori version (that was signed by Māori) only granted governance, and retained for Māori exclusive possession of their Taonga. The confusion led to conflicts: some resulted in bloodshed, others took their fights to the courts—it is those battles that have particularly shaped the way the Treaty is valued today.

The first major dispute came before the courts in 1877. Wi Parata, a Māori farmer of Ngati Toa, had made an oral contract to provide land to a church in exchange for a school being built for Ngati Toa close to the church. No school was built. Yet shockingly, the Court rejected Wi Parata’s claim for breach of the Treaty as it was held that the Treaty was a “simple nullity”. The Court found that the Treaty lacked legal force because Māori were simply not civilised enough for their signatures to matter. Instead, Pākehā governance of New Zealand was achieved by discovery. Case dismissed.

That view prevailed for an awkwardly long time. Land was grabbed. Teachers beat kids for speaking Māori. Assimilate or die.

The next big judicial battle came in 1941. In the case of Te Heu Heu, a Māori chief sought to invalidate a law passed by Parliament because it was inconsistent with the Treaty. He failed. The Treaty is not a domestic law, the Court found. It is an international treaty of cession, perhaps, but Parliament did not pass it, so domestic legislation will always trump it. The majority wins. Now we will have your land, thanks.

By 1975, that is, 135 years after the Treaty was signed, the white majority began to realise that perhaps their history of oppression, land-grabbing and subjugation of Māori was not exactly ethical by modern standards. We got a law change: the Treaty of Waitangi Act established the Waitangi Tribunal to hear Māori grievances. The general vibe was that Māori would bring a claim to the Tribunal for breaches of the Treaty. The Tribunal, made up of historians, public servants and lawyers, if it wanted, would then recommend to the Government that they should redress the wrong—give money, apologise, give back land, change a place name: in some way compensate for the lost generations and years of embarrassing neglect.

This was a breakthrough and still is the primary means of settlement for Māori, but it requires a political will to resolve the dispute. The Government can just as easily turn around and reject the recommendation whenever the majority decides to do so. More was needed.

Segue to the Lands case. In 1987, the Government was attempting to sell state companies and turn them into state-owned enterprises. Included in the legislation which was passed to empower the Government to sell the assets was a provision that they must act consistently with the Treaty. The Court held that the constitutional significance of the Treaty required the Government to act consistently with it, when such a provision exists in the legislation. It cannot be ignored. It is a sham that such an obvious finding took until the 1980s to be realised. What was more radical was the Court’s interpretation of the Treaty of Waitangi. The judges determined that although there were substantive differences in meaning between the two translations, certain “principles” could be deduced. The Court revised exactly what “consistent with the Treaty” meant. According to these three judges, it was founded on a principle of partnership between the two parties: Pākehā have a duty of active protection to Māori; Māori have to allow Pākehā to govern.

Academic Moana Jackson, a Māori expert on constitutional matters, weighed in on this issue, criticising the Court’s approach: “It’s rather like taking the Magna Carta and inventing a set of Magna Carta principles rather than looking at what it actually says.” Jackson believes the principles have been “unhelpful” in resolving Treaty grievances. Instead, he heeds the words of Sir James Henare, speaking at the time of the Lands case:

“Our ancestors did not sign a set of principles. They signed words. The mana is in the words.”

These principles have now effectively replaced the Treaty. They are referred to by the Courts and Parliament alike, and only given effect to when included within the legislation. That is the status of the Treaty in modern New Zealand: it has increased in importance, but at the same time, what it stands for has been diluted in order to be more palatable to middle New Zealand. Any majority can ignore it as they choose.

Geiringer elucidates exactly why treatment of the Treaty matters to everyone and not just to Māori:

“The Treaty is undoubtedly our most important constitutional document. From a Pākehā perspective, its particular significance is that it provides a claim to legitimacy for our system of government. The alternative is to accept that our society is founded on nothing more than the subjection of one people by another people. That’s an ugly proposition that many New Zealanders would be reluctant to accept as the basis for our constitutional system.”

Yet it is one which many supporters of The Pakeha Party must at least tacitly hold. So at this juncture in our country’s history, as the Constitutional Advisory Panel discusses the future of New Zealand governance, we must examine the future role we want the Treaty to play in our lives. As the Listener noted in an article last year, the Treaty has always been a barrier to constitutional change. A similar advisory panel was set up in 2000, and discussions “imploded” because of the issue of the Treaty. Here are some views which prominent academics hold concerning the future of the Treaty. Your perspective on their views will define our constitutional system in the years to come.

           Principles

 “New Zealand’s modern constitution reflects, or should reflect, the key elements that make up our society and how we want it to work.  I think that means that it should reflect the relationships between the Crown, Māori and other New Zealanders—and that is manifested in the Treaty of Waitangi.”

Dr Matthew Palmer, one of the leading authorities on the constitution in New Zealand, provides the starting point. The Treaty embodies the essence of our constitutional system and should be respected for that. Palmer believes that our understanding of Treaty principles and Māori jurisprudence has matured over the last few decades. That maturity allows the Courts to interpret the Treaty principles “as a matter of routine—like any other important set of laws”. That would entail the Treaty being used in the same manner as the Bill of Rights: aiding the courts in their interpretation of legislation, but still not able to be used to strike down a decision of Parliament. The Treaty may still be usurped by majoritarianism.

            Political Power

Professor Paul McHugh of the University of Cambridge, a New Zealander who has written extensively on this issue, argued that Māori are already successfully using political means to further their lot. McHugh points out that in Canada, where the constitution has a ‘Treaty provision’, the effects have been minimal at best, as political will is still required and often lacking in Canada to give effect to such a provision.

Māori fare better in New Zealand.

“The situation is different where tribal peoples can pull the levers of power, as in New Zealand under MMP, and with the increased embourgeoisement of their culture that has occurred over the past 30 years, much of it a consequence of Treaty settlements. Given the very real shift in political power that has occurred in NZ over the past 30 years and the emergence of Māori as amongst the most adept players of the highly fluid politics of coalition and interest-alignment (and realignment), I doubt whether formal constitutional accommodation of the Treaty would make much difference to very real political changes that are already well in train.”

McHugh’s argument is powerful. It is that Māori are already loud enough in politics, and already lobby hard enough that nothing more needs to be done. The failure of the Māori Party to unify itself and oppose National Party policies that hurt its people might suggest otherwise. So too might the way the Government routinely tramples on the rights of Māori—something which McHugh should be aware of given that it was his work on the Foreshore and Seabed that granted Māori rights to the foreshore and was accepted by the Courts, but was rejected by the Government. Perhaps though, the true value of McHugh’s argument, as was posited by Tai Ahu, assistant lecturer at Victoria University, is that it suggests that now is a good time to push for bolder protections of the Treaty and Māori rights, given their political voice.

 Transformation

Jackson seeks a constitutional transformation. He believes the style of the Bolivian constitution, which is values-based, could be useful in New Zealand.

“They acknowledge what they call the sacredness of the individual. They position the individual always within a wider collective. What has become clear in the hui we have had around the country is that there is a similar desire among Māori people, and I would guess among many Pākehā people. If you recognise the sacredness of every individual, and position that individual within whatever social or community group they belong to, then you have a values base on which good law will be made.”

The Treaty should not be shunted, according to Jackson, into the straitjacket of our current constitutional system. Rather, the ethics of the Treaty should guide our thinking.

I put it to him, that in such a multicultural country, the task of finding shared values is near impossible. Jackson disagrees:

“I think there is a set of fairly common shared values: most people want to do their best by their kids; most people want to love and be loved; most people actually do care about what they now call the ‘environment’.”

Ahu believes there is “some force” in Jackson’s idea. However, Ahu suggests that the “implications are very uncertain” of such a constitution. For example, if the courts were left to interpret Māori constitutional concepts of aroha and rangatiratanga, it is unlikely that they would adequately grasp the true meanings of such concepts.

           Entrenchment

Instead, Ahu supports an entrenchment of the Treaty within a written constitution. Written constitutions such as that of the US do “a better job of protecting minority rights” than the unwritten constitution of New Zealand. Our current approach to the Treaty is “scattered and incoherent”: it is only sometimes mentioned in domestic law. An entrenchment would “remove any doubt” as to the significance of the Treaty, Ahu believes. Further, Ahu suggests that both versions of the Treaty should be included in the constitution: Māori and Pākehā. Then we should leave it to the Courts to interpret the two versions, in the same manner that the Waitangi Tribunal does now.

However, as with Jackson’s suggestion, this has practical difficulties of its own: will the Courts have the power to strike down law based on breaches of the Treaty? Will the Courts interpret the Treaty in a way that gives full effect to its provisions? For Ahu, these are legitimate concerns, but not barriers that should stifle all discussion of it. If they turned out to be politically impossible, then at the very least, Ahu argues that the Treaty should be part of the Bill of Rights Act. This option was considered at the time of the drafting of the Bill of Rights, but was rejected by Māori due to concerns that it would downplay the significance of the Treaty. That was “a missed opportunity” according to Ahu. Positioning the Treaty around other constitutional values such as free speech would have a “powerful significance” for the importance of the Treaty within our constitutional framework.

In our constitutional review, we must not forget the Treaty. It is the legal means by which Pākehā state power came and colonised Māori. Our current policy has created animosity from both Māori and Pākehā. Pākehā want their money well spent. Māori feel consistently shut out of our society; the flourishing of The Pakeha Party is testament to that. Where to from here? I don’t know. But people do. We need to listen to them. Our current approach is not good enough. The Government claims that a policy of payouts and token consultation will heal generations of raw grief. It will not. Prison and poverty statistics reflect that. We need to talk more. Māori need to talk more. We need to listen. We need to listen harder.

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