Submissions on the Treaty – some reflections

Treaty opponents misunderstand the Treaty’s promises and seem ignorant of the basic facts of New Zealand’s colonial history.

We have received many submissions on our proposed Constitution Aotearoa through our website.

Our proposal to include the Treaty of Waitangi / Te Tiriti o Waitangi in the constitution and give it legal effect as part of the constitutional law of the country has generated a good deal of feedback.

Some say we have got it just right; others say we haven’t gone far enough (i.e. we should have built a framework which is based on power-sharing institutions so as to reflect the Treaty); some are completely opposed to any inclusion of the Treaty (or more broadly the recognition of Māori) in a written constitution.

In the blogs we have published about the role of the Treaty in any written constitution, we have tried to reflect the range of views that have been received.

Of course, our views are those set out in our book and elsewhere. We don’t endorse the views of those who oppose our proposals, but we do accept that, for there to be a genuine conversation about New Zealand’s constitutional arrangements, a wide range of views need to be aired. (That is why, in previous months, we have published blogs advocating for retention of the monarchy and opposing a written constitution).

Similarly, we have this month published a blog arguing against the Treaty’s inclusion in any written constitution.

Since we see the Treaty / te Tiriti as an important element of New Zealand’s current unwritten constitutional arrangements (and therefore, in our view, should be reflected in any future written constitutional arrangement) we think it is worth addressing a number of the arguments that we have read that argue against any present day recognition of the Treaty as a constitutional document. That seems to us to be particularly appropriate on the weekend of Waitangi Day.

The main themes in the opposition to any inclusion of the Treaty / te Tiriti appear to be:

(a) All New Zealanders are equal; therefore, there should be one law for all (implicitly, of course, that ‘one law’ is English law, albeit without accommodation of the English common law doctrines built up around recognising aboriginal rights – common law light!)

(b) Non-Māori will be made into second class citizens. Very few submitters articulate why this would be the outcome, although sometimes it is linked to an imbalance in representation. One person put it to us that: “The Māori people have no right nor need of extra representation in Central or Local Government matters. To give them such, is unfair and an affront to other ethnic groups in New Zealand. It is undemocratic.”

(c) The Treaty is an historical document, with no current relevance. Interestingly, some people say it does not need to be included in the Constitution because it guarantees equal treatment to Māori and non-Māori and therefore there is no need for it to be included in addition to a general guarantee of equality. Others, however, seem to believe that the Treaty gives Māori special rights and that is unacceptable.

(d) There is no such thing as a Māori; therefore, whatever the relevance of the Treaty in 1840, it has no relevance in modern New Zealand.

(e) The meaning of the Treaty today is so uncertain, due to Court and Waitangi Tribunal interpretations, that nobody knows what it means and what impacts it could have in the future. This uncertainty means it’s inappropriate for inclusion in the Constitution.

Our responses on those points are as follows:

(a) All New Zealanders are indeed to be treated equal. That was part of the promise of the Treaty itself: it says that Māori will be given all the rights and privileges of British subjects (article 3). But part of equality is that Māori have the same right to the protection of their rights and interests before the courts as other subjects. And, by virtue of English law, Māori (like many indigenous people) have rights reflected in the English common law doctrine of native title. This doctrine in fact was reflected in article 2 of the Treaty, which guarantees to Maori “the full exclusive and undisturbed possession of their Lands and Estates Forests and Fisheries and other properties” / “te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa’. Those promises – of equal treatment and of protection of native title – which in turn reflect English common law – were not honoured. Large tracts of land were wrongly confiscated; other land was purchased using methods that did not reflect and respect the way in which Māori land was held; rights flowing from native title including associated water, tree felling, fisheries etc rights were not respected. This occurred through a combination of court decisions, legislation, and decrees. Some say that to the extent that this occurred pursuant to the law in force at the time, then Māori were treated equally because they were governed by the same lawmakers as non-Māori. But that ignores the guarantee of recognition of Māori rights – rights which were part and parcel of the law recognised by English law in almost all of the colonies that the UK established – and the associated right to have their rights upheld and recognised by the Parliament and courts in the same way as the Parliament and courts would recognise the rights of other non-Māori. Much legislation was passed in order to override those rights.

(b) Recognition of the Treaty has not and would not establish Māori as a class of person superior to non-Māori. The Treaty was about recognising the uniqueness of Māori and ensuring that their identity, customs, lands and so on were respected. The history of the law in New Zealand has been that the law has sometimes classified Māori as unique – but in ways designed to make them second class citizens. Examples include the Tohunga Suppression Act 1907, the suspension of Habeas Corpus during the Waikato War under the Suppression of Rebellion Act 1863, the existence of effectively separate (but unequal) voting systems for Māori and non-Māori (from the end of the 19th century up until 1975 the only Māori who could vote in general electorates were ‘half-castes’ defined as being people who had one Māori parent and one non-Māori parent). Much of the recent effort to create Māori representation at local and central government level has been to recognise both the legacy of separate but unequal participation under the older electoral systems that acted to disadvantage Māori in political life, and also to restore Māori in part to the position they might reasonably expect to have been in had they not been unfairly treated.

(c) The Treaty is relevant to today’s circumstances. Its promises underscore why settlements need to occur; promises were broken and trust needs to be fully restored. Its promises also set out a vision for how power might be shared and certain minimum rights and privileges maintained; again that vision is still relevant today. In recognising the contemporary relevance of the Treaty, New Zealand is acting no differently to other countries – as noted earlier Canada had treaties with aboriginal tribes and today they are part of the relationships between the government and indigenous people.

(d) We simply do not agree with people who say that there is no such thing as a Māori any more. The premise is all wrong. Being Māori is about whakapapa. In turn, whakapapa is about kinship not blood percentages. Most New Zealanders understand that pretty easily, since almost all of us – both Māori and non-Māori – have mixed ‘blood’ and many ethnic strands, each one of which we typically value and cherish. And, moreover, from a legal perspective recognising the importance of that whakapapa and its significance is compatible with English law; because English law recognises how indigenous groups determine their own self-identity for important purposes such as native title.

(e) The work of the Government, the courts, Parliament and the Waitangi Tribunal over the last number of decades have clarified the meaning and effect of the Treaty to a great degree. It is not uncertain as many claim. But equally importantly, it permits contemporary solutions through the flexibility of its principles which focus on process, participation and partnership focused outcomes.

More broadly, we have been surprised at the lack of awareness of some of the darker aspects of the history of this land. Wrongs were done; promises were broken; fundamental principles of law and fair treatment were violated.  The words said to have been uttered by Hobson at Waitangi – “He iwi tahi tatou,” (translated by some as meaning “now we are one people” but by others as “we are peoples together”) – are often relied upon by those who oppose recognition of the Treaty.  But the “one people” concept which appears to inform their perspective is an assimilationist “one people” principle –i.e. we will be one people when Māori become like non-Māori. In our view, the reference to one people is a reference to a people (as in a group of citizens) who live in the one place determined to live with each other in mutual respect and with full recognition of each others’ rights. That vision of the words in the Treaty is what we understand to be the promise of the Treaty; it was simply not met. But it can still be, albeit adapted to contemporary circumstances where we all live close with one another.

More broadly, recognising the uniqueness of Māori in our constitutional framework is not at all unusual. In fact, New Zealand (in 2010) became a signatory to the 2007 United Nations Declaration on the Rights of Indigenous Peoples. That Declaration (which is legally non-binding) has substantial global acceptance. Among its articles is the right of indigenous people to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions (article 18) and the obligation on states to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them (article 19). These are precisely the sorts of measures which the Government, the courts and Parliament have been recognising as rights that flow from the Treaty; in short, Treaty practice can be said to reflect international expectations in this field.

Nor is recognition of the uniqueness of indigenous people an oddity of the United Nations system. As mentioned earlier, native custom and land tenure has long been recognised in English law. It is no surprise therefore that in Canada for example the Canadian Charter of Rights and Freedoms 1982 (which is part of the Canadian constitution) expressly recognises “the existing aboriginal and treaty rights of Aboriginal people of Canada” (section 35(1)) and also shields aboriginal group rights from being attacked as contrary to individual rights protected elsewhere in the Canadian charter: “The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada” (section 25). And that shield goes back as far as guarantees given to aboriginal people in a 1763 proclamation; underscoring the enduring nature of old promises in this space.

Canada is not unique; very many constitutions recognise aboriginal peoples and the importance of protecting their unique rights within the domestic legal system.

We totally accept the point that many people make when they say that whatever happened then, we didn’t do it, so why should we pay for it? For us, there are several reasons. First, we may not have done it, but many of us live with the fruit and the benefits of the wrongs that were committed in our past, and equally many of our fellow citizens live with the detriments brought about by those wrongs. Second, Māori are unique. Their presence on these islands that we all share is unique to this place. It is the only place where Māori can be Māori. If previous generations couldn’t recognise that, or chose not to, that is no reason for us to follow suit. Third, we are all in this together.

And a final point. For the future. We believe that the Treaty needs to be part of any future supreme law constitution, because history has shown that as a minority Māori rights will not always be respected. Nor is that a phenomenon of the nineteenth century; it has happened this century as well. Protection of treaty and aboriginal rights in the supreme law Canadian constitution has not brought about aboriginal privilege in Canada; recognition of the rights of Māori under the Treaty of Waitangi in a written constitution will not do it in New Zealand either.