Te Papa Tongarewa forum, 6 February 2001
Between the 1840s and the 1870s the Treaty of Waitangi went from a solemn pact to a “simple nullity” in the public life of the colony, at most thereafter occasionally invoked simply for ceremonial purposes. In the 1980s the Treaty was revived as an instrument for settling wrongs and reshaping some decision-making. There is nothing surer than that in this new century the Treaty’s role will change again, probably substantially.
One possibility is that the Treaty will be incorporated prominently into a written constitution. There are conflicting views about what that would mean.
Some Maori say the Treaty is the constitution and incorporation would diminish its status and power. Others say it would give the Treaty greater force. Some European New Zealanders say incorporating the Treaty in a written constitution would divide the people and undermine the democratic principle of one-person-one-vote. Others say it would form an essential element in a sorely needed codification of rights protected by a constitution.
My guess is that the Treaty will diminish during this century but not before a lot more argument and activity in the early years.
In the last quarter of the twentieth century the Treaty gained some legal and a great deal of moral force. Even if aspirations and hopes founded on its revival have been only partially achieved or met, the Treaty has become central in our public life.
But this simple, amateurishly drafted document has become overburdened.
Go back to the momentous public declarations in the 1980s, first by Sir Geoffrey Palmer on the government side and then by Winston Peters and the whole National party conference, that the Treaty is “the founding document of the nation”.
What does that mean?
For some it is a solemn compact between two races or between two nations, in which can be found the answer, or at least guidance towards the answer, to all public and many private questions.
On this view the Treaty is a living document, to be consulted in development of public policy and for private conduct. The Treaty raises, and can be appealed to to decide, issues of resource allocation (land, fish, oil, the radio spectrum), social development and power.
On this view, since it was – and, as a living document, still is – a pact between two equals, power is to be shared as partners would share power. Hence the “sovereignty” argument: is tino rangatiratanga just a delegated authority from the central government or does it imply self-government?
For others, and the Prime Minister is to found among these, “founding document” means the mechanism by which the nation was founded.
On this view the nation is a living, evolving organism. It has a life beyond the Treaty which cannot be constrained or confined by the Treaty. The Treaty was the basis for the transfer of unitary power to the British colonists.
On this view breaches of the Treaty’s explicit promises can (and most holding this view would say, should) be identified and redressed. They have been in part legislated and in part incorporated into administrative and managerial practice within the government, with an increasing measure of devolved responsibility and even decision-making. But there is no question of dividing power between equal partners.
What the Prime Minister wants to do is transform the Treaty into the unifying symbol of a multicultural nation – she has, after all, made nation-building a central theme of her prime ministership. That is why she has chosen two multicultural events to attend today. One of her ministers speaks of “transcendence”.
If the Prime Minister succeeds in her ambition, Waitangi Day will become, in effect, New Zealand Day. The signing of the Treaty will have the same symbolic significance as the declaration of independence on 4 July 1776 has for the United States, the storming of the Bastille on 14 July 1789 has for France and the arrival of Captain Phillip and his convoy of convicts in Sydney on 26 January 1788 has for Australia.
Then there are some who want, in essence, to rescind the 1980s declarations that the Treaty is the founding document of the nation.
Many non-Maori see the Treaty as an instrument of division which should be retired from active service. Maori are seen as constantly invoking the Treaty for concessions from the majority. Television images of Waitangi Day these past two decades have been of confrontation and abuse.
The wish to extinguish the Treaty has so far found no organised expression but it is real and lurks just beneath the surface of our national life, constantly threatening to erupt into political or, worse, physical violence. That it has not is a testament, I think, to a remarkable underlying goodwill. There are not – yet – the ingredients of a Palestine in this land. But if the Treaty is allowed to loom larger in our public life as an instrument of division, that fate may not be spared us.
The obverse of this is a rejectionist argument among Maori: that the 1835 declaration of independence by northern tribes, endorsed by the British resident, Busby, established a Maori nation and the Treaty did not extinguish this. On this view and variants of it Maori are the first nation, or nations (each tribe being autonomous), and all later arrivals are here on sufferance, the Treaty being at most an instrument to regularise their presence – the nation, or nations, being already well-founded, had no need of a “founding document”. On this view claims by Maori upon resources, for redress of past wrongs and for “sovereignty” are an assertion of an inalienable indigenous rights, not a petition under a dubious document.
It is not my purpose here to disentangle all these complicated skeins of public – national – discourse. My purpose is to convey an inkling of how complex the Treaty debate has become and to suggest that the Treaty cannot carry such a complex debate forever. I say “an inkling” because my comments are a gross simplification of the complexity. I could easily spend the whole of this hour doing no more than scratching at the surface.
That the Treaty, a simple document, has somehow carried the weight of this complex national discourse through the past 15 years or so is because we have conveniently overlooked the fact that we have all been talking past each other. My guess is that we are condemned to continue in this manner for another 15 years or so – that at most in her term of office the Prime Minister will be able to put down a few markers pointing towards her cherished unified multicultural nation, the “unity amid diversity” one of her ministers talks of, the elusive new Jerusalem of liberal democracy.
So for the next 15 years or so and maybe for quite some time after that the Treaty will remain important, perhaps central, in our public life. And because it will then have occupied that position for 30-50 years, it will have seeped deeper into private consciousness, though suffering much warping and embellishment in the process.
What happens after that will depend on whether we fracture or unite as a society – nation is too strong a word to use with any confidence yet.
First, take, the fracture scenario. The hopes, fears and arguments the Treaty have engendered might easily ignite into conflict. There will be governments which try to draw back from their predecessors’ Treaty-respecting initiatives and practices and Maori who respond to that with intense, and possibly truly destructive, action outside the norms of the law and parliamentary politics.
For these reasons, my guess is that the Treaty will not be given formal constitutional force or that, if it is, it is in some way attenuated to placate a disturbed majority at some point. And don’t look to the demographics for a uniting majority behind the Treaty. Immigration will keep Maori in the minority and in any case, too many Maori will identify too much with European or international culture and economic opportunity for a united Maori push. At some point this will get too hard and governments and voter-majorities will want to, as some in this government are already saying, “move on”.
Now take the unity scenario. This suggests that out of a combination of initiatives which restore Maori self-worth and economic and cultural standing and weariness at decades of Treaty initiatives, Helen Clark and her successors are able to make headway towards a unifying sense of nationhood. The Treaty in such circumstances would simply biodegrade, not into food for rats and mice in some storehouse as it once did, but into a safe symbol of that unity.
In either scenario the Treaty will diminish in public life.