Why we are debating ‘the principles’ of the Treaty of Waitangi

Opinion: In latest months, there was an enormous quantity of debate of ‘the rules of The Treaty of Waitangi’. More often than not, the reference to ‘the rules’ is not only a basic reference to the concepts underpinning The Treaty/Te Tiriti, however a selected reference to a authorized and coverage assemble developed from the Seventies and Eighties onwards. So why will we discuss with ‘the rules’ particularly? The place did they arrive from, what did they imply, and why are we debating them once more in 2024?

Partially one in every of this sequence, I mentioned the parable of the cession of sovereignty–the concept that Māori ceded sovereignty to the Crown in 1840. Regardless of the overwhelming proof that it’s a fable, this concept persists. Not solely that, it stays the central justification for why we’d like ‘the rules’. Because the argument goes, if te Tiriti (the te reo model) and the Treaty (the English model) don’t match (which is true) and we will’t presumably know what signatories meant (which isn’t true), we have to discover a compromise between the 2 (which is uncertain).

From a Māori perspective, there must be no have to compromise on one thing that’s completely clear within the first place. Nonetheless, for the reason that mid-Seventies, ‘the rules of the Treaty’ have been used to no less than attempt to uphold this compromised model of the doc.

Reference to ‘the rules’ was first made within the Treaty of Waitangi Act 1975, which created the Waitangi Tribunal. The Tribunal was empowered to offer for “the observance, and affirmation, of the rules of the Treaty of Waitangi”, with authority given to take a look at each the te reo and English texts. Early Tribunal experiences paved the way in which for later developments regarding each te Tiriti/the Treaty itself and the rules.

The place the rules actually took maintain, nonetheless, was within the late Eighties, largely as a result of a court docket case involving the New Zealand Māori Council. In 1986, the federal government handed the State-Owned Enterprises Act, which included a provision stating that “nothing on this Act shall allow the Crown to behave in a way that’s inconsistent with the rules of the Treaty of Waitangi”. A yr later, our highest court docket was required to find out what these rules had been.

A lot of what we all know in regards to the rules nonetheless comes from that case. Amongst different issues, the court docket mentioned the rules of partnership (that te Tiriti/the Treaty was a partnership between Māori and the Crown), energetic safety (that te Tiriti/the Treaty creates an obligation on the Crown to actively shield sure Māori pursuits), and of redress (that breaches of te Tiriti/the Treaty oblige the Crown to compensate Māori). It additionally mentioned the duty on each Treaty companions to behave moderately and in good religion in direction of one another, an thought that is still central to understandings of te Tiriti/the Treaty at present.

Treaty rules are additionally more and more included in laws. There’s a development in direction of provisions being extra particular, requiring the Crown to take particular actions with a view to uphold its Tiriti/Treaty duties. An instance is discovered throughout the Oranga Tamariki Act, which requires the company to (amongst different issues) scale back disparities between Māori and non-Māori youngsters, and “search to develop strategic partnerships with iwi and Māori organisations”. These provisions are sometimes a step ahead, however specificity is just not a panacea. The Treaty provision within the Oranga Tamariki Act, for instance, was criticised by the Waitangi Tribunal for falling in need of full compliance with te Tiriti/the Treaty.

To summarise up to now: the rules have developed over time, come from a number of sources, and for many of the previous 40 years have been the principle approach wherein lawmakers, public officers, and courts have navigated the variations between the 2 texts of te Tiriti/the Treaty.

Placing apart the parable of the cession of sovereignty, it’s maybe unsurprising the Authorities has said that additional readability can be helpful. The issue, nonetheless, is that what’s being proposed is just not actually an try to make clear Treaty rules, however an try to erase them.

The rules that the Act Social gathering wish to legislate for are contradictory and make little sense within the context of what Te Tiriti o Waitangi truly says. For instance, its proposed ‘new’ Article One refers to kāwanatanga, however the subsequent definition of that time period refers back to the authorities’s proper to manipulate all New Zealanders. That’s merely not what kāwanatanga was meant to imply within the unique textual content of Te Tiriti.

Much more egregiously, ACT’s model of Article Two refers to tino rangatiratanga, however states that this implies the federal government “will honour all New Zealanders within the chieftainship of their land and all their property”. That’s not a reinterpretation of Article Two, it’s a full fabrication.

ACT’s proposed new Article Three states that every one New Zealanders will likely be equal beneath the legislation, with the identical rights and duties. That concept would possibly resonate with some individuals, however once more–it’s by no means what te Tiriti says, regardless of how a lot David Seymour needs in any other case.

The rules utilized by the courts and the Waitangi Tribunal is likely to be based mostly on a fable, however they’re much more coherent than what the Act Social gathering needs to exchange them with. David Seymour says he needs to create certainty, however given their inherent contradictions, his ‘new’ rules usually tend to do the alternative.

For my part, the adjustments proposed by the Authorities are each morally unsuitable and legally incoherent.

Whereas some individuals on either side of the controversy would state that the rules as we all know them must be modified, re-writing them in the way in which the Authorities has advised can be an enormous setback for our nation.

The nice disgrace of those proposals is that as a nation (regardless of what David Seymour would have us consider) we lastly appear to be able to have a mature debate about our constitutional future. That dialogue, grounded in what te Tiriti truly says, must be a trigger for excellent hope, relatively than for the politics of worry that we now have seen so prominently currently.

That is half two of a three-part sequence by Dr Luke Fitzmaurice-Brown (Te Aupōuri) on the rules of the Treaty of Waitangi. Half one mentioned a false impression usually underpinning Treaty debates – the parable that Māori ceded sovereignty. Half three will focus on the way forward for Te Tiriti o Waitangi in modern-day Aotearoa, arguing that discussions about Te Tiriti ought to make us all hopeful, relatively than fearful, and expands on what that potential future would possibly seem like.