A constitution ‘sourced in two streams’

Giving effect to the constitutional promise of The Treaty of Waitangi will require a change in New Zealand’s government and legal culture, writes Dr Carwyn Jones.

When people think of the Treaty of Waitangi, many think of historical claims relating to natural resources and land loss that are brought before the Waitangi Tribunal and may be settled as part of negotiated agreements.

But the Treaty is not simply about historical breaches, claims and settlement.

At its core, it is a constitutional document. And I argue that we ought to more fully embrace the constitutional role of the Treaty.

A couple of years ago, I suggested that the constitutional role of the Treaty of Waitangi was going to become increasingly significant as more and more historical claims are settled.1

“Because the Treaty isn’t simply about fixing up historical wrongs. So, let’s not limit its application to looking back at the past. Let’s free it from that context. Don’t get me wrong—confronting the past, acknowledging the damage the governments have done to Māori communities over the last 175 years and committing to do something about it is absolutely essential. But to confine the Treaty to acting as a benchmark against which to measure past action deprives us of the full potential that the Treaty offers.

“The claims and settlement process is important for re-setting those relationships between Māori and government and providing a platform for healthier, more mature relationships based on mutual respect and recognition of each other’s traditions, institutions, and ways of doing things. But the claims and settlement process by itself cannot fulfill the Treaty partnership. Redressing past wrongs is a necessary step, but not by itself sufficient. If no other action is taken, completing the settlement of historical claims would be about as productive as mopping up a puddle caused by a leaking tap but not doing anything to fix the leak.”

So, what is required to make good on the constitutional promise of the Treaty?

The simple answer is that it requires giving effect to the sharing of public power that is created by the grant of kāwanatanga (governmental rights) and the guarantee of tino rangatiratanga (unqualified chieftainship).

Of course, this is more easily said than done. The Waitangi Tribunal and the courts apply the language of “Treaty principles” to determine how to give effect to the Treaty ‘partnership’ in specific situations. In fact, we now have quite a substantial body of law on Treaty principles and, consequently, a high degree of certainty as to what those principles might require. Formalising the constitutional status of Treaty principles would create greater certainty about how those principles will apply, but otherwise would largely maintain the status quo.

However, I would argue that Treaty principles are not the right mechanism for understanding the constitutional role of the Treaty. Treaty principles are not directed at giving effect to kāwanatanga and tino rangatiratanga. Rather,  they are a mechanism developed within a framework that is predicated on Crown sovereignty and is aimed at reconciling tino rangatiratanga with Crown sovereignty.

Treaty principles have been used to make significant gains in terms of the recognition of Māori rights, but they cannot be used as the basis of constitutional reform because they are inherently compromised. For these reasons, Matike Mai Aotearoa (the Independent Working Group on Constitutional Transformation) emphasised that its work was to develop a constitution based, amongst other things, on Te Tiriti o Waitangi, as opposed to looking to find a place for the Treaty within current constitutional arrangements.

In order to fulfil that task, we need to think of the constitution of Aotearoa New Zealand as being truly bicultural, sourced in two streams.1 Giving effect to this will require a shift in terms of our governmental and legal culture to recognize that Māori legal and political thought should also inform our constitutional arrangements. I have previously suggested that it is necessary to think about establishing patterns of behaviour based on a ‘constitutional kōrero’, by which I mean an ongoing discussion between our institutions of government that includes a Māori voice and has reference to Māori law:1

“This does not necessarily require a range of Māori institutions that parallel the state’s existing constitutional institutions. But it is something more than including a Māori perspective or Māori personnel. It ultimately rests on recognising the validity of the Māori legal system and accepting that Māori law should inform the development of our constitutional law. Engaging in this form of constitutional korero on an ongoing basis to implement the relationship between kāwanatanga and tino rangatiratanga (and perhaps one day perfect this relationship) is a process that can only strengthen the legitimacy of our constitutional arrangements.

“Māori concepts such as whanaungatanga (centrality of kinship), mana (spiritually sanctioned authority), tapu/noa (the balance between sacred and the every-day) provide guidance on constitutional matters in the same way that concepts such as the rule of law and the separation of powers inform our current constitutional arrangements. They indicate where political and legal authority should sit, how the legitimacy of that authority should be maintained, basic rights and obligations that individuals might have in respect of the collective group, how the laws are to be enforced. In order to give effect to the kāwanatanga-tino rangatiratanga relationship we need to ensure that this body of Māori law continually speaks to the development of our constitutional law, so that we develop a constitution that truly is ‘sourced in two streams’.”

The settlement of past breaches is important, but the real value of the Treaty of Waitangi to our society is that it provides a constitutional framework that is based on mutual respect and recognition of the rights, legal traditions, and systems of government of the indigenous population and those that came later. It offers us a relationship between peoples and constitutional cultures that is based on consent, not violence or oppression. Fully embracing this vision, set out by our ancestors in 1840, can only strengthen our communities.

1. See https://www.victoria.ac.nz/news/2015/02/lets-liberate-the-treaty

2. See Eddie Taihakurei Durie “Will the Settlers Settle? Cultural Conciliation and Law” (1996) 8 Otago Law Review 449.

3. Carwyn Jones “Tāwhaki and te Tiriti: A principled approach to the constitutional future of the Treaty of Waitangi.” (2013) 25 New Zealand Universities Law Review 703.

About Dr Carwyn Jones

Dr Carwyn Jones is of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. He is a senior lecturer in law at the Victoria University of Wellington, with a primary research interest in the Treaty of Waitangi and indigenous legal traditions. He has also worked at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. He is the author of New Treaty, New Tradition – Reconciling New Zealand and Maori Law (UBC Press, May 2016). Dr Jones is the Co-Editor of the Māori Law Review and maintains a blog, Ahi-kā-roa, on legal issues affecting Māori and other indigenous peoples.