The Hobson’s Pledge group argues that the Treaty of Waitangi is an equal rights, colour-blind and unifying document. Governor Hobson greeted each chief signing it with the pledge: He Iwi Tahi Tatau, “We are now one people”.
It is true that the Treaty itself does not create superior rights for Māori. However, statute law that Parliament enacts can create additional rights such as Māori-specific educational or health entitlements. Such laws come from democratically-elected Parliaments, not from the Treaty.
The Treaty of Waitangi was drafted in English, and the missionary Henry Williams translated it into Māori. When chiefs debated it, Williams clarified various points. He told Māori that they would be “one people with the English, in the suppression of wars, and of every lawless act; under one Sovereign, and one Law, human and divine”. The “divine” was left out of the text – the Treaty is a secular document.
The Treaty is ahead of its time. It has also shaped our times, including our evolving constitution and social norms. Treaty-based advocacy, rather than creating race-based privilege has strengthened New Zealanders’ common law rights. It has protected against uncompensated regulatory takings. It has fostered cultural inclusiveness and therefore requisite variety through which New Zealanders can engage better with diverse ethnicities and world views.
The Treaty has a preamble and three articles. The preamble states the need for a central government and rule of law.
Article One transfers sovereignty (kawanatanga) over New Zealand (Nu Tirani) to the Crown. Treaty discourse sometimes asserts an equal Crown-Māori partnership. Queen Victoria did not enter into equal partnerships with the British aristocracy, let alone with remote tribes! There was never an exclusive equal Treaty partnership between the Crown and Māori.
The Treaty gave Māori equal rights with Pakeha from 1840, except for Treaty restrictions on Māori land sales set out in Article Two. After 1840, other provisions for Māori were created through statute law, not through the Treaty.
Since 1840, New Zealand’s constitution and polity has democratized and decentralized power. Crown (or rather Parliamentary) powers are now controlled by elected lawmakers. Rather than having an equal partnership with voters, elected lawmakers are subordinate to them because voters of all ethnicities can hire and fire them every three years.
Article Two transfers Magna Carta and English common law property rights to Māori. These tino rangitaranga rights over land and other properties (taonga) were given explicitly to individuals and whanau as well as chiefs and tribes.
Some words used in the Treaty have changed in meaning since the early 19th century. Hongi Hika used “taonga” to refer to tangible “property procured by the spear.” However, taonga can now include cultural “properties” such as language.
Treaty-related discourse has supported statutory recognition of, and funding for Te Reo. Māori language is now part of New Zealand identity. Pakeha use Māori terms such as arohanui and kia kaha to express feelings ineffable in English.
Te Reo revival has indirectly fostered the case for teaching Asian and other languages. This has helped build respect for other cultures. Māori cultural assertions have led to new educational models such as Kohanga Reo and Wananga. Other cultural assertions led to faith-based (Catholic) or pedagogy-based (Rudolf Steiner) schools. The common principle in such cultural assertions is the need for self-expression in an inclusive society.
Article One establishes Crown sovereignty and statute lawmaking powers, while Article Two protects common law property rights at the individual, family and tribal levels. A critical principle is that where there is a conflict between a statute and common law then statute law prevails. However, in such cases due process must be followed and compensation may be paid for regulatory takings.
The Bastion Point dispute in the 1970s saw Māori exercise their common law rights. The seabed and foreshore issue from 2003 saw Māori exercise Article Two common law claims and Parliament exercising its statute law powers to moderate these claims to protect perceived public interests.
The only part of the Treaty that reduces Māori rights compared to other New Zealanders’ is the Article Two provision giving the Crown the right to buy Māori land as a monopolistic purchaser. This right reduced the prices that Māori might have realized from land sales. This Crown pre-emption clause is the only part of the Treaty which is now outdated. However, it was justified in the 1840 context where there was widespread fraud, and confusion over who owned what and who had rights to trade in land.
Article Three confers on Māori the rights and privileges of Crown subjects, and extends to them the Crown’s protection. In the Raglan golf course case in the 1970s, the Crown had taken over Māori land for an airbase in World War Two. It was justified in doing so, given the existential threat that New Zealand faced at that time. Article Three commits the Crown to defending Māori (and other New Zealanders) from external threats. However, with the end of the War the Crown failed to return the land, and therefore breached Article Two common law rights. The land was returned.
The Treaty of Waitangi is, together with the New Zealand Constitution Act 1852 a founding document for New Zealand as a British colony. In 1907 New Zealand ceased to be a colony and became a Dominion with more self-governing status within the Empire.
New Zealand acceded to the International Convention on the Elimination of All Forms of Racial Discrimination 1969. The New Zealand Constitution Act 1986 saw Parliamentary sovereignty established, and the Crown reduced to a procedural and symbolic role. However, the Treaty has influenced how Parliamentary sovereignty has been exercised through, for example, the Māori seats.
When Māori assert Treaty rights they often act indirectly for all New Zealanders. Since the Treaty is an equal rights document, any right upheld or created through Treaty litigation can create a common law right that is extended to all. This explains why Pakeha farming and fishing interests have typically supported Māori rights. In future, Treaty-related common law arguments will help us to navigate tension between rights to farm and the state assigning social licences to farm.
Māori have often led in environmental protection, most notably for water quality. An example was in 1981 when the New Zealand Synthetic Fuels Corporation (Syngas) was given permission to build a marine outfall for its Motonui plant. At this time sewerage, meat works and industrial waste was being discharged into waters near Waitara. This was culturally offensive to Māori and threatened their fisheries. Local Pakeha also disliked it.
Te Atiawa challenged Syngas, and as a result new treatment plant was built to reduce pollution. This case led to wider water quality protection benefiting all.
Treaty arguments have also protected historical and amenity values. In 2002, Ngāi Tāmanuhiri challenged the sale to an oversea buyer of Te Kurī a Pāoa (Young Nick’s Head). They highlighted the site’s historic value to themselves and to Pakeha. After negotiations with the new owner, the headland became an historic reserve and public access was retained.
Māori are increasingly leading on New Zealand’s sustainability and climate change challenges. Tuhoe are working with Opus on a tree resin alternative to petroleum-based asphalt road sealing in their rohe. Inalienable Māori land that cannot be sold forces owners to manage inter-generationally for sustainable returns rather than one-off capital gains. The iwi-owned Parengarenga Incorporation in the Far North is experimenting with biochar to improve soil sustainability and carbon sequestration, while delivering productivity benefits. The iwi is on an inter-generational journey with its whenua.
In recent times, conferring rights on rivers and other ecosystems reflects human indivisibility with nature. This way of viewing the environment is consistent with modernist and mainstream international science and philosophy.
An equal rights constitution does not of itself deliver equity in social outcomes. The Treaty and other constitutional documents may not be the right framework within which equity can be addressed. However, the social cohesion spirit that can be inferred from a “one people” Treaty narrative sits uncomfortably with inequality of opportunity in New Zealand.
Treaty of Waitangi settlements have so far focused on iwi or hapu on the assumption that these collectives will act for all their members. What is lost sight of is that individuals are specifically mentioned in Treaty Article Two, yet Treaty settlements have not been made to individuals. In a future post, this issue will be discussed.
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