Paper for the Australian judges conference by Colin James, 27 January 2004
Twenty-five years ago the Treaty of Waitangi had no force. In most people’s minds, that is. In the minds of many influential Maori the Treaty was central to aspirations for more recognition and a better life, as it had always been. Now the Treaty is central to the life of this nation. Getting “the Treaty” right is the greatest political challenge.
By “the Treaty” is meant, essentially, Maori rights. There is more to it than that, to which I will return, but the core article is article 2, which explicitly protects some indigenous rights. [By “Maori” this paper means anyone with any Maori ancestry who identifies as Maori, which is the common usage in New Zealand.]
And New Zealand has to get it right. Maori are around 15 per cent of the population and increasing. They underperform on all social and economic indicators. The coherence of this society and its economic wellbeing require Maori to feel wholly part of this society and be full participants in an internationally competitive economy.
This marks New Zealand out from Australia, Canada, the United States, Japan — indeed from most modern, democratic states which have indigenous populations. In those countries attention to the needs and rights of the indigenous people is an optional extra, perhaps a moral duty or an ethical claim. Here it is an inescapable necessity.
The alternative, assimilation into a world of European values and practice, is no longer practicable. It is what most non-Maori and even many Maori would like and what seemed until 30 years ago to be destined. But too many Maori over too long a time have reclaimed and regenerated Maori culture and heritage and too many governments over too long a time have responded to claims for a distinctive place in the culture, society and power structure for Maori culture, heritage and ways of doing things for this country to revert to simple assimilation.
In any case, indigenous rights would be on the nation’s agenda, even if there was no treaty. The Treaty is a vehicle for expression of the claim to those rights and responses to those claims. But it is not the sum total of Maori claims or rights.
The nation was starkly confronted with this broader indigenous rights dimension in the decision by the Court of Appeal on 19 June 2003 on a case in which seven Marlborough tribes and a tribal trust had sought in the Maori Land Court title to foreshore and seabed “land” on the basis of common law aboriginal title that had not been extinguished. The Court of Appeal found the areas were “land”, that aboriginal title could be argued in the Maori Land Court and ownership registered, including as freehold title (though the claim would succeed only if continuous use was established).
This has caused much political and public excitement, angst, uproar and hope and will, a leading commentator on indigenous rights has argued, force the development of a local jurisprudence of aboriginal title. New Zealand custom for a century and a-half has been that the foreshore and seabed are public property and the Appeal Court decision seemed to most non-Maori to threaten access to the “beaches” (which are actually the dry part above the foreshore). Rattled by that reaction, the government responded, in great haste, with a proposal to put the foreshore and seabed in “public domain” but allow Maori to argue to a commission the case for “customary use” and a form of “customary title”. Maori tribes at meetings called to “consult” on the proposals and subsequently have (in their public statements) near unanimously rejected the proposal because, they say, it negates ancient property rights. Though ministers says Maori leaders have been more conciliatory in private and so think they will be able to bring a creditable number of Maori leaders around, that is not a foregone conclusion and in the meantime the political opposition is claiming too much is being conceded by way of customary title and other Maori rights in respect of any areas to which they obtain such title. Around 10 per cent of the coastline is potentially subject to claims, Land and Information New Zealand has calculated.
This matter illustrates the extent to which “the Treaty” and the flow-on from its resurrection have already profoundly reshaped New Zealand and will continue to do. And that process has some powerful underpinnings that do not rest on legal or political bases.
The indigenisation of New Zealand and reindigenisation of Aotearoa
New Zealand went through what amounts to an independence revolution in the 1980s. From the late 1970s there was an explosion of new writing, plays, films, dance and music which, by contrast with what had gone before, was unselfconsciously local (and uneven but refreshing). This was not at odds with the colonial period’s sport-outdoors-equality ethos but qualified it and introduced new and richer dimensions of expression. Revisionist interpretations of the country’s history appeared in the 1980s. And there was a profound policy upheaval after 1984: in economic policy, from a highly protected economy to one of the most open and deregulated in the world; in social policy; in policy toward Maori; in foreign and defence policy; and even in the constitution.
In part the deep policy change after 1984 represented the coming to power of the generation that, in the 1960s, precipitated the values revolution which swept our sorts of countries. It was also in step with, and owed much to, the ascendancy of neoclassical economic theory and market-driven economic and social policy reform in those countries. But in New Zealand policy change went faster and deeper than in those other countries. Why? For one thing, the economy was seriously distorted and there was a financial crisis, which required swift surgery and strong medicines. Then, once there was momentum for reform, the tightly centralised, village-like political system enabled a small group at the heads of the cabinet and the bureaucracy to continue to drive through radical change.
But those two factors do not alone account for the swiftness and depth of change; there was always the opportunity to slow or stop; and there was much political pressure from many quarters and other political incentives to do so — one government was destroyed and another mortally wounded in the process. Moreover, the policy change in the 1980s was faster and deeper than in either of the two previous radical reform periods, the 1890s and the 1930s. Something else had to be operating to explain the depth and speed of policy change.
I contend that critical factor was that New Zealand was becoming “independent”, emerging from its colonial interlude. While formal independence was taken in 1947, it was not until the 1980s that New Zealanders acquired and exhibited a fully independent mentality. So the 1980s upheaval was New Zealand’s independence revolution, evidenced most in the newly vibrant unselfconscious cultural expression.
It was not a revolution in the sense of a violent overthrow of the political system and/or of the established social order, as classical definitions of revolution require. But it did amount to a “cultural” revolution in the sense that elements of the value system changed considerably. Certainly, what was going on felt to many at the time like revolution. It involved social, cultural and economic upheaval and insecurity for large numbers of people and, though much continued largely unchanged, much also changed sharply.
In essence, this cultural revolution indigenised majority New Zealand, that part of the population principally or only ethnic-European (mainly English, Scottish, Irish or Welsh). After the 1980s New Zealand is no longer British. New Zealanders still visit or go to live in large numbers in Britain, with which there is a venerated, or at least instinctive, ancestral Anglo-Celtic connection. But by the 1980s it was no longer Home, as it had been to previous generations. Home is New Zealand, with a distinct landscape, a distinct approach to daily life, distinct ways of thinking and distinct ways of expressing itself — a distinct popular culture and, from the 1980s, a distinct high culture. Ethnic-European New Zealanders are indigenous here now unless they are first-generation immigrants or over 60.
But this indigenisation has been complicated by the reassertion by Maori of first-inhabitant status — that is, by the reindigenisation of Aotearoa. Maori have demanded and to a great extent achieved recognition as tangata whenua, the indigenous people of the land, with special claims to landscapes, special status for their traditional culture and influence over public policy and administrative decisions. This reindigenisation of Aotearoa has both complemented and challenged the indigenisation of New Zealand and is in some ways stronger because it asserts a continuity of culture tied to the land whereas the indigenisation of ethnic-European New Zealand is a discontinuity, a separation, and may remain fragile until ethnic-European New Zealanders are able unselfconsciously and confidently to reconnect with, reclaim and celebrate the European, and particularly, Anglo-Celtic culture which is the root of their newly indigenised culture. Over the past 20 years many liberal ethnic-Europeans have been afflicted by “cultural cringe” in the face of a reclaimed and reasserted Maori culture that has seemed to them a stronger-based culture than their own.
The reindigenisation of Aotearoa began almost imperceptibly among the few Maori university students and academics in the mid-1960s, at the very point when a homogenised New Zealand, a better Britain, seemed secure. From the 1970s Maori began, by way of occupations and marches, forcefully to advance claims to land alienated in breach of Treaty conditions. They began to revive interest, initially amongst themselves, in the language and in art, craft and cultural expression. They later asserted a special cultural and governance status (of Maori affairs and in influence over general political decisions), sought official and public respect for sacred and ancestral sites and laid claim to ownership and/or control of taonga (which loosely translates as “treasures”), varying from oil and gas to the radio spectrum to copyright in native flora and fauna.
As articulated by Maori intelligentsia and leaders, this amounted to asserting a parallel social and political order with the European, in 1987 characterised by the Court of Appeal as a “partnership” between Maori and the Crown. New Zealand is bicultural before it is multicultural and in this country now biculturalism is about power-sharing, not just tolerance of and support for the minority culture. It is not a subset of multiculturalism, with which New Zealand is also wrestling and which biculturalism complicates.
Though Maori reindigenisation of Aotearoa obviously parallels and reinforces the independence from Britain at the core of ethnic-Europeans’ indigenisation, the reaffirmation of the special relationship with the Crown (the British Crown) inherent in the Treaty adds an intriguing and conflicting dimension.
Moreover, it has generated tension bordering on, but never quite spilling over into, racial standoff. The Treaty has been a one-way street for 20 years and among non-Maori there is a great deal of disquiet and rejection, verging on anger.
But the walk down the Treaty street has also been accompanied by the beginnings of an almost imperceptible — but also powerful and irreversible — meshing of Maori culture with the newly indigenised ethnic European culture. In 1999 the singing of the Maori version of the national anthem at the rugby world cup triggered uproar among non-Maori. Now the standard way to sing the anthem is the Maori version first, followed by the English version, even at conferences of the conservative National party. The word hui is widely used for a meeting or conference. Even quite conservative people frequently begin a speech with a few ritual phrases of Maori. Few formal events now do not start with a powhiri, a formal Maori welcome. These are small steps, not much more than gestures, and so too much should not be read into them. But they were unthinkable 20 years ago. Almost without noticing it and with little fuss, non-Maori are acquiring some Maori habits and language. No indigenised ethnic-European in this country can not be part-Maori in culture even if not in ancestry. The two indigenisations may often appear in conflict but they are also entwined.
This is not going to produce the offwhite unified race envisaged by past policymakers and commentators. It is a weave of two different threads, more like an intricate houndstooth cloth. But it is important to keep in mind that no Maori can be purely Maori. All Maori, including some of the most assertive traditionalists, are also part-European or mostly European in ancestry. They all live in a predominantly European-derived society and share the aspirations and contradictions of that society. Even the most ardently traditional Maori are bicultural — and in modern hands Maori arts and crafts are drawing on a wide variety of non-traditional influences to create a vibrant new expression. Most Maori want what non-Maori want from the economy. And large numbers of Maori choose to be monoculturally European despite their ancestry, indistinguishable from ethnic-Europeans except by colour and often not even that.
But there are Maori who want radically to change the society, culture, politics and economy of the country and take direct action in support of their aims And there are many non-Maori who viscerally reject the Treaty and the cross-cultural process, though so far resort to direct action has been extremely rare. If things go badly wrong, there are the makings of sporadic violence or worse in the Treaty process. The pleasant surprise is that 25 years into the process, those seeds have not germinated. So far the process has been contained within the parameters of reasoned, though often tense, political debate and argument.
That is the context of the politics of the Treaty.
The multifaceted Treaty
A difficulty in coming to grips with the Treaty is that it has many different facets and they often overlap. This is confusing even for those who are familiar with the Treaty. It greatly complicates general political debate, both among politicians and among the general public, who are often unfamiliar with the Treaty. Often people talk past each other even though they think they are addressing the same point. This heightens differences and conflict.
� There is a constitutional dimension (see the preamble), from which claims for special recognition as tangata whenua, the indigenous people, have been derived along with other, largely erroneous, claims.
� The Treaty both does and does not deal “sovereignty” (article 1) and also evokes for some a lingering Maori “sovereignty”, though actually this is better read as “self-government”, “self-administration” or devolved administration (article 2), which takes many forms, both in theory and practice.
� There is an indigenous rights dimension (article 2) but the Treaty does not encompass the totality of indigenous rights claims, as the current furore over the foreshore and seabed demonstrates. In this respect New Zealand’s issue with Maori is closely similar to the issue other countries, including Australia, are facing with their indigenous peoples who are demanding recognition.
� Those three elements, taken together, have led to a presumption of “partnership”, which both imposes on the government a duty of care and is thought to justify special consultation with Maori on a widening range of public policy matters and has been given legislative imprimatur.
� There is a citizenship dimension, which gives rise to some of the fiercest arguments. Are Maori just equal before the law or do they deserve (are they entitled to) special assistance as a group to enable full participation in the society and economy? If so, who constitutes that group?
� There is a simple breach of contract dimension (article 2), which is what the Waitangi Tribunal was set up in 1975 to deal with but, coupled with the above elements, has spread across into areas that seem off-limits to most non-Maori.
� There is a moral dimension. The Treaty does not have legal weight, except to the extent that it is explicitly incorporated in legislation. That it is increasingly being given such legislative recognition stems in part from recognition by authorities of a moral or ethical duty.
Add up all these factors and the inescapable conclusion is that the Treaty is about power-sharing. It is not a subset of multiculturalism. That is the rub in the Treaty and is why it furnishes a rich lode of political argument. It is a huge boon to journalists like myself because it has woven a blanket of uncertainty which now cloaks the future of this society and its economy.
The Treaty and the constitution.
By the late 1980s all significant political parties had accepted that the Treaty was a, or the, “founding document” of New Zealand. The preamble states that the Treaty is to lead to ” a settled form of civil government” established by the British Crown.
This does not mean any more than that the Treaty paved the way for British government and the 1852 Constitution Act. Nor does it say that the Treaty is part of the constitution or is the foundation of the constitution. However, some people have asserted one or both of those. Some have asserted that it is the constitution, which is a somewhat romantic construction.
A source of the confusion lies in article 1, which purported in the English version to transfer sovereignty from the tribes to imperial Britain and in the Maori version only to confer on Britain “kawanatanga” (literally “governorship”). This falls far short of “mana”, which would come closer to what Maori understood as sovereignty, though those tribes exposed to Christian missionaries may have had some inkling of the powers and extent of government and understood kawanatanga to mean at least some kind of protectorate.
Nevertheless, the Treaty is now closely bound up with the constitution. Any attempt to discuss the constitution, even a “minimalist” change from Governor-General to appointed President, immediately leads into debate on the place of the Treaty, as became starkly apparent at a constitutional conference organised by the Victoria University Institute of Policy Studies in April 2000.
This is partly because the Treaty was between tribes and the Queen and the tribes therefore claim, and feel, a special relationship with the Crown and/or monarch that transcends their dealings with the elected government of the day. This clouded the debate on the abolition of appeals to the Privy Council in 2003, though many Maori did support that change.
Thus, if New Zealand is to become a republic it will need at least to consider the place of the Treaty. Should it be recognised explicitly in a new constitutional document? And, if so, should it be by way of a reference in the preamble, incorporation of the Treaty or the Treaty’s preamble in the constitution’s preamble or as a separate article, or incorporation of the Treaty as part of a Bill of Rights embedded in the constitution? A government proposal to incorporate it into the 1990 Bill of Rights Act was rejected by Maori on the grounds that it would diminish the mana (standing) of the Treaty to incorporate it in simple legislation because that would make it subordinate to Parliament instead of in transcending Parliament as the founding document of the nation. The same could be argued about incorporation of the Treaty , or even reference to it, in a new constitution.
There is some irony in this in that even now the Treaty has legal force only to the extent that it is explicitly required in legislation.
A small but growing school of Maori thought accepts that New Zealand will become a republic at some time (though that may be some decades away) and that there will need to be explicit entrenchment of the Treaty in some form. However, there is also now a small but growing school of thought that argues the Canadian precedent: the Crown may be a useful transcendent feature of the constitution for a nation in which there are secessionist or self-government tendencies in a part of its population.
The governing Labour party, its coalition partner, the Progressive party, and the Greens all favour a move to a republic. The government has since 1999 taken some steps in that direction: abolition of knighthoods, abolition of Queen’s counsel as a title for barristers and abolition of appeals to the Privy Council. It is now reviewing official oaths, with a view to removing the reference to allegiance to the Queen.
However, the government has no intention to move to a republic in the near future or even raise the issue. Prime Minister Helen Clark has repeatedly said that move is “inevitable” but may take 20 years. The great majority of Labour, Progressive and Green MPs are republicans.
A number of National MPs also support the move to a republic. Former Prime Minister Jim Bolger (1990-97) favoured such a move, initiated (unsuccessful) legislation to remove appeals to the Privy Council and spoke approvingly of it at the constitutional conference referred to above. However, the National party opposed the Privy Council abolition and now opposes a republic. Its ally, the ACT party opposes a republic and at the time of the constitutional conference fomented media and popular opposition to even the idea that options might be talked about and asserted that the abolition of the Privy Council was intended by the government to lead to a “socialist republic of Aotearoa” by way of decisions of an activist Supreme Court!. New Zealand First and United Future also oppose a republic.
The public is uninterested in constitutional change and, when asked in opinion polls, a majority supports retention of the monarchy.
The Treaty and “sovereignty”
The dispute over whether in article 1 Maori tribes knowingly ceded (or even could have ceded) sovereignty has led some Maori to assert that sovereignty did not pass and remains with the tribes. This borders on a pure indigenous rights argument that Maori retain sovereignty by right of indigeneity. This position is argued by a small number of Maori.
Neither position is widely held, even amongst Maori. For all practical purposes it is accepted, as it has been by most Maori since at least the wars of the 1860s which forced resisting tribes into subjection, that sovereignty passed de facto. The Waitangi Tribunal has ruled that for its purposes sovereignty did pass.
The government has repeatedly stated that sovereignty rests with the Queen in Parliament and is indivisible.
However, there is another argument based on article 2. That article guaranteed Maori “tino rangatiratanga” — full chieftainship — over lands, forests, fisheries, villages and taonga (though the list is different in the English and Maori versions). A small number of Maori argue that this retains “sovereignty” for Maori at the tribal level.
This has become an element of the argument over the foreshore and seabed. Some Maori assert a right to ownership/control of tribally-connected foreshore or seabed “land” that derives from their tribe’s continuing “sovereignty”. This has prompted the Prime Minister to dismiss the opposition of some Maori to the government’s proposals for administering the foreshore and seabed as arguments on sovereignty — though by no means all of the arguments are, as one of her own Maori MPs, Nanaia Mahuta, who opposes the proposals, pointed out publicly in December.
Some Maori do actually mean “sovereignty” when they talk in this vein. But what most mean when they use the term is “self-government” within the sovereign state or some such lesser devolved role.
The Treaty and self-government, self-administration or devolved administration
The 1852 Constitution Act (s71) provided for the government to designate districts in which Maori law and custom would prevail. None were set up. The provision was not carried over in the comprehensive 1986 modernisation of the act.
More recently, some Maori, including Justice Eddie Durie, former Chief Judge of the Waitangi Tribunal, have argued that it would be possible to devolve a power for defined Maori groups to make bylaws, as do local councils. No government has seriously entertained this, however, and most political parties would likely oppose it.
At issue is whether and to what extent it is possible to devolve limited self-government in a state in which the populations are geographically (and demographically) thoroughly mixed. So far the furthest the state has been prepared to go is to allow limited self-administration. There is scope for some criminal matters to be dealt with on the marae if all parties agree; Maori educational institutions — kohanga reo (kindergartens), kura kaupapa (schools), and waananga (tertiary institutions), conducted entirely or to a large extent in the Maori language — are self-administered within parameters set by the Ministry of Education, the Qualifications Authority, which approves curriculums and monitors standards, and the Tertiary Education Commission; Maori health service agencies operate similarly; a range of agencies, such as Te Waka Toi (the Maori arts funding board) and Te Mangai Paho (the Maori Broadcasting Funding Agency) are self-administering under the aegis of general public service rules and guidelines.
But these agencies operate under devolved authority from central government. They are subject to monitoring (though sometimes this has been lax and there is a steady stream of media stories of money gone missing or misappropriated ) and the dictates of the State Sector Act and the Public Finance Act. Increasingly, some Maori argue that such agencies should be accountable only to Maori (either generally if a national agency such as Te Waka Toi, or to the appropriate tribe if a tribally based agency) and not to Parliament through those two cornerstone acts. In a different vein, some Maori argue that Maori educational agencies should decide the curriculum for students in their institutions and not be subject to the dictates of the Ministry of Education, the Qualifications Authority and the Tertiary Education Commission.
The Treaty and indigenous status and rights
The fact that the British government saw fit to negotiate cession of sovereignty with Maori tribes and that this is explicitly stated in the Treaty can be interpreted as according Maori status as the indigenous people. And even if that interpretation can be contested, Maori tribes are in fact now widely regarded as tangata whenua, the people of the land, in much legislation, public life and ritual. Indigeneity has been given sanction by law and practice.
This is contentious. Many non-Maori families have been in New Zealand for seven generations and many more for five or six generations. Especially, but not only, those who have been farming families feel a close attachment to the land that they say is no less strong or “spiritual” than traditional Maori connections. And Maori are relatively recent arrivals in any case: the best evidence suggests around 1350. For many other non-Maori there is a “so what” question: wasn’t it all settled by conquest and occupation in the wars of the 1860s? At a more rarified level Jeremy Waldron, an academic jurist, challenged the arguments for indigenous status in a lecture in late 2002.
Setting aside that argument, article 2 of the Treaty can be read as a partial codification of pre-existing Maori rights as indigenous people because it reserves full chiefly rights over land, forests, fisheries, villages and taonga. This is not a necessary interpretation but it is one which many Maori have implicitly applied.
The crucial word is “taonga” in the Maori version. The relevant phrase in the English version is “other properties”, which most non-Maori would read as land, buildings or chattels. Taonga, however, loosely translates as “treasures” and Maori take taonga to refer to all of a tribe’s or family group’s (whanau) “estate, material and non-material — heirlooms and wahi tapu [sacred sites], ancestral lore and whakapapa” [genealogy and special connections with natural features, such as mountains, rivers and rocks] . Traditional Maori culture is animist: humans are inseparable from nature and the spirit world. What non-Maori tradition regards as myth, traditional Maori regard as knowledge (some even say “science”) and Maori internalise that myth. Thus the non-material (“invisible”) taonga may include taniwha — spirits — as an integral part of traditional Maori life.
Gradually, legislation is according protection to such features. Maori has been an official language for a quarter of a century and there is special assistance, under a state Maori Language Commission (Te Taura Whiri i te Reo Maori), to foster the language. Consultation is required with Maori, in development consents under the Resource Management Act and there is special protection in the Copyright Act for Maori flora, fauna and motifs. A bioethics council set up to advise the Environmental Risk Management Authority on genetically modified organisms is bound to consider Maori values and spiritual matters. Under the new Land Transport Management Act local tribes must be consulted on roading plans and actual road projects: a delay in a road in the Waikato because a tribe had not been consulted on a taniwha located in the path of the road caused an uproar in late 2002.
At one level this is unremarkable: building a road through a cemetery causes an outcry among non-Maori (for example the Shell gully motorway in Wellington in the late 1970s); the same should logically apply to an urupa, a Maori burial site. But urupa often do not have monuments or even visible boundary markers as do European ones and may be identifiable only in the tribal (oral) memory. And in a post-christian world such spirit-world creatures as taniwha have long been banished by science. The reaction of most non-Maori ranges from scorn to irritation. Even sympathetic non-Maori mostly respond with polite incomprehension. Very few non-Maori are genuinely bicultural.
The National and ACT parties have by and large endorsed that popular scorn and frustration, though in office in the 1990s National did accord some recognition to ancestral places in legislation. Labour (which holds all seven parliamentary constituency seats set aside for Maori), the Progressives and the Greens, who see some parallels with modern green spiritual inclinations, are more sympathetic or at least less unsympathetic.
But indigenous rights arguments by some Maori do not stop at the boundaries of article 2 and taonga. The Treaty is now used as a window into a general doctrine of indigenous rights, based on “tikanga Maori” — which translates roughly as “what is right and proper in the (traditional) Maori world”.
It is on this general doctrine of indigenous rights (incorporating aboriginal title), not on the Treaty, that the foreshore/seabed case rested.
There was no doctrine of terra nullius in respect of New Zealand. The Colonial Office insisted cession of sovereignty must be formally obtained from Maori which it recognised as occupying and thus in a sense owning the land. Settlers were required to buy Maori land, not simply occupy it. Nevertheless, settlers (and at one point the British Colonial Office) considered much of that land “waste” because it was not being continuously and wholly occupied — Maori tribes moved from site to site both for hunting and gathering food and for cultivating crops. To Maori all of the land, both in the hunting-gathering and cultivation sites and between them, was the tribe’s land. And that “land” included the foreshore and seabed where, for example, they would gather shellfish, an important source of protein in pre-European times. That was the basis of the foreshore and seabed case taken to and endorsed by the Maori Land Court in 1998. The Court of Appeal ruled last year that the Maori Land Court did have jurisdiction, which raised the possibility the Land Court may grant exclusive title on the basis of aboriginal title (thought it also this may be difficult to establish.) What does this amount to if given legal imprimatur? That Maori customary practice might prevail over what had become general New Zealand custom, a belief that the foreshore and seabed were in the control of the Crown and all had unfettered access to it.
This was and is political dynamite. It is by far the government’s most difficult issue for this year. Non-Maori (and a lot of Maori) were incensed that Maori might block off access to the “beaches” (though in fact the claim was not to the beaches). The government immediately issued an assurance that public access would be guaranteed and has since proposed to legislate that the foreshore and seabed be in the “public domain” except where already subject to freehold title (as most port land is, for example), with a commission to determine whether a tribe or whanau has a case for a new “customary title”. The National party demands immediate legislation to declare the foreshore and seabed Crown land. The ACT party sees it as an issue of property rights and says the court process should have proceeded unhindered (a Privy Council appeal by the Marlborough District Council, against which the original action was brought, has been withdrawn and the government did not lodge an appeal). The Greens have (so far) sided with those Maori who have described the government proposal as the “last great colonial land grab”. New Zealand First, headed by a Maori and with six Maori in its 13-member contingent in Parliament, has tried to ride both horses. The government’s main support party, United Future, supports its approach but this is not enough for a majority since two Labour Maori constituency MPs have declared their opposition.
In an interesting twist, Maori tribes have taken the issue to the Waitangi Tribunal for a ruling on whether the government’s proposal is consistent with the Treaty — even though this is not strictly a Treaty case. It is a measure of the Treaty’s lengthening reach.
It also underlines that the Treaty process did not happen in a vacuum, any more than did the economic reforms of the 1980s. The push for indigenous rights is an international phenomenon. Though the Treaty does have specific historical and local drivers and can be understood only by understanding those drivers, it is also part of a worldwide development.
The Treaty, “partnership” and power-sharing
If you put together the constitutional, self-administration and indigenous rights dimensions of the Treaty, you can more readily understand the principle of “partnership” imputed to the Treaty in the 1987 Appeal Court judgment referred to above. The “partners” are those of the original Treaty, Maori tribes (individually) and the Crown. The basis is Maori status as tangata whenua, with special rights under article 2, which also was argued by the Appeal Court to impute a duty of care to protect those rights.
There are conceptual and practical difficulties with the partnership notion and these have added to the tensions in the Treaty debate. At the core of those difficulties is who constitutes the two partners. Large numbers of Maori have no or a tenuous connection with their tribe or have multiple tribal connections; all Maori have some non-Maori (usually Anglo-Celtic) ancestry and so also are, in a sense, on the other side of the argument. The “Crown” in practice boils down to the government, which represents all citizens, including all Maori. An interesting twist is that Te Puni Kokiri (the Ministry of Maori Development), which in part acts as an advocate for Maori within the bureaucracy, and the Minister of Maori Affairs are unequivocally part of the “Crown”.
ACT and the National party now that it is in opposition have been critical of the partnership notion.
Nevertheless, governments have dutifully tried to act out the partnership role. This is in part driven by a sense of moral responsibility and respect for the Appeal Court formula. But it also has a practical side. If New Zealand is to prosper economically and be a stable society, the large, growing and seemingly intractable “gap” between average Maori educational, health and economic performance and average non-Maori performance, must be at least narrowed and preferably eliminated. To be blunt, take out Maori and New Zealand would on average be a significantly richer country (in material terms, that is). Partnering with Maori agencies, governments of several stripes have hoped since the mid-1990s, will increase the effectiveness of social assistance and health and education services and lift Maori performance. Likewise the connection of alienated Maori youth who have fallen foul of the law to their traditional culture has been held to help their rehabilitation. Government social agencies have specialist Maori units.
Partnership goes far beyond that, however. If Maori are to be true partners, they must have a share in power. As stated above, biculturalism is about power-sharing.
Hence there are now widespread requirements in legislation for officials to consult with Maori or pay special attention to Maori: in the Resource Management Act, the Local Government Act, the Health and Disability Act, the Land Transport Management Act and many others. While Maori cannot usually exercise a veto, they can have considerable influence now, especially over development consents under the Resource Management Act (which can result in payments to tribes for the “consultation”); even applications for government money for research grants require a statement as to how Maori will be advanced by the research and some money is set aside for research into Maori knowledge, which in a western sense is not strictly research at all. And in many departments and local councils, even where the legislation does not explicitly require consultation, Maori are now consulted or have a unit within a policymaking, decision-making or delivery institution.
Where will this stop? True partnership — a partnership of equals — would logically, as indicated above, require parallel systems, with Maori accountable to Maori and not to the government through the Public Finance Act and the regulatory agencies.
Taken to its logical conclusion, partnership at the national level would lead to parallel Parliaments. This has been long advocated by Whata Winiata, a former professor of accountancy, and was implemented (with indifferent results) by the Anglican Church, in which Winiata has been influential. Logically, a Parliament in which Maori are a small minority cannot convincingly represent an allegedly equal partner (as also a referendum on an issue about which Maori are sensitive, such as the abolition of the Privy Council, could not). So Winiata argues for a Maori Parliament (legislating for Maori), a general Parliament (legislating for everyone else) and a “Treaty House” where conflicting initiatives are resolved.
That brings us back to the debate on sovereignty and self-government. Parallel Parliaments are not going to happen because in hard politics, which deals in numbers, the “partnership”, if there is one, is not between equals. No party in Parliament argues for parallel Parliaments and, in fact, not very many Maori of influence do either — at least for now.
The Treaty and citizenship
Not least among the roadblocks stalling any scheme such as Winiata’s is the difficulty, mentioned above, of identifying who is in which box. Considerable numbers of Maori — that is, people with some Maori ancestry — do not identify as Maori. Of those who do identify as Maori in the census, not many more than half enrol to vote in the seven constituency parliamentary seats reserved for Maori. Most of the rest enrol on the general roll.
This suggests that large number of Maori have taken to heart article 3 of the Treaty. That article conferred on all Maori in New Zealand when the Treaty was signed “the rights and privileges of British subjects” — in modern parlance, New Zealand citizens.
Therein lies one of the fiercest debates over the Treaty.
Does article 3 just mean equality before the law? If it does, then “group” rights do not apply and there should not be “laws based on race”, according to National, ACT and New Zealand First. That would challenge a great deal of the activity under article 2, under the partnership principle and in recognition of indigenous rights.
But social democrats such as Labour and the Progressives and also the Greens argue that equality of citizenship requires at least some government intervention to reduce inequalities of opportunity: in education, health care and housing. This supports the very activity those preferring a strict definition condemn. But it is subject to a great deal of dispute about exactly how much support should be given and on what terms: for example should special assistance extend to “capacity building” assistance to tribes to enable them better to self-govern or manage devolved social services delivery agencies? A great deal of money seems to have gone on events that do little to improve capacity.
And who gets the assistance? Those who are enrolled with tribes? Or also those who enrol with non-tribal agencies? Or anyone who identifies as Maori? The “partnership” is with tribes, if the Treaty is strictly interpreted, not with individuals or Maori in general. One of the commonest questions from non-Maori about the Treaty is: what is a Maori?
The Treaty as breach of contract
The problem with the Treaty for most puzzled, frustrated or angry non-Maori is that they have thought of the Treaty process as righting past breaches of the Treaty (for example, by government confiscations, refusals to return land taken or gifted for public works or projects when the original use is discontinued and underhand alienations of land). While there is considerable dispute as to whether this generation of non-Maori should atone for the actions of previous generations, there is a strong consensus at the political level that there should be compensation for breaches of the Treaty and this has won acceptance from the electorate, though many are grudging about it.
For that reason some parties, notably National and ACT, have proposed a time limit on lodging of claims with, and their disposal by, the Waitangi Tribunal and negotiation of settlements between the government and tribes.
Moreover, the wide extension of Treaty claims into such taonga as the radio spectrum, oil and gas and flora and fauna and the use of the Treaty to obtain partnership status and many privileges and measures of assistance and to claim a wide range of other indigenous rights and even “sovereignty” have brought the historical claims into disrepute with many non-Maori by association. So, too, have claims or assertions by Maori that lack authority, for example, in March 2003, an attempt by one Maori to have women banned from a hospital building, which was slapped down by other Maori with greater authority. The media don’t help in their treatment of the Treaty, giving prominence to items like that one which are likely to stir fear, anger or derision among non-Maori: another example (among many in 2003) was that a research project had been in effect subject to a veto by Maori though that was not so.
There is also the “grievance industry”: a clutch of lawyers, Maori and non-Maori, and those on commissions or advisory bodies who make comfortable and in some cases affluent livings out of advising claimants or leading a claims process. Progress on claims is excruciatingly slow: of more than 700 claims lodged with the Waitangi Tribunal only a handful have been settled, though some have been big ones. There is a fear among non-Maori that this will never end and that tribes will come back for second bites even when there have been “full and final” settlements.
And, of course, every hour spent by Maori leaders, lawyers and intelligentsia on claims is an hour not spent bending their minds and their skills to lifting Maori economic and social performance. Settlements of historical Treaty breaches do not necessarily go to that end: they are at least as much about tribal mana (dignity, standing) as about money — and the money and assets go to the tribes, of which large numbers of Maori most in need of social and economic assistance are not active members (though recent settlements have included, at the government’s insistence, mechanisms that ensure widespread distribution of the benefits).
The Treaty as morality, principle and politics
The Treaty is referred to in legislation in a wide variety of ways, which is confusing and inconsistent. One of the commonest references is to the “principles” of the Treaty: agencies and administrators are required to observe or not be inconsistent with the “principles”. However, apart from an attempted listing of the principles by the cabinet in 1989, the principles have never been defined. Like a great deal else to do with the Treaty, definition has been left to the courts.
This is problematic in that the courts are then in effect forced into policymaking on a matter of high, indeed paramount, public policy. For this they are inadequately equipped, given that they are dealing not with the totality of issues the Treaty encompasses but with particular cases.
Arguably, developments in Treaty practice would ideally be done by way of political debate and decision rather than by way of jurisprudence.
In the final analysis Treaty policy is a matter of balancing morality and practicality. The Treaty was not a legal requirement until it began to be written into legislation which was backed by court decisions. It was a moral decision to accord value and meaning to the Treaty. And it is practicality that constrains the Treaty’s reach.
The government’s current approach was summed up in April 2003 by the Deputy Prime Minister, Michael Cullen, in speeches to Labour party regional conferences and an interview with me. In essence, he stated:
* In interpreting the Treaty, the Maori-language version takes precedence. That is well established in other jurisdictions, including the United States and Canada.
* While Maori could not be said to have intended to cede sovereignty (the word “mana” would have been used in the Treaty if so), the Crown assumed sovereignty and has exercised it, “unbroken and largely unchallenged, ever since”. It is impossible to unscramble that egg now.
* All article 3 did was to accord Maori the same protections British citizens had. It does not modify the rights protected under article 2, “which is what the Crown signed up to in 1840 and which still is our law”.
* Article 2 protects more than a “list of possessions”. It protects taonga. “That makes the Treaty a living document where new applications or implications may arise as circumstances change.”
* Taonga include wahi tapu (sacred places) and the Maori language (though not the English language, which the Treaty does not protect) but do not include the airwaves.
* There will never be “black-letter-law certainty”. What is in and what is out will be decided case-by-case by discussion. “Not all traditional practices are taonga,” Cullen said in the interview. But it does mean sometimes inserting into legislation a reference to taking into account the Treaty’s principles (though the courts would probably rule that anyway).
Rather belatedly, the government is trying to run a general education programme for the public on Treaty, in part through the Human Rights Commission.
The Treaty and the future
The Treaty pervades a great deal of public life in New Zealand. That would have been unthinkable to all but a few Maori 25 years ago and the current extent of the Treaty’s influence would have surprised policymakers even 10 years ago. The Treaty is the pre-eminent political issue in 2004 and (in the absence of any natural, security or economic cataclysm) will be for some time to come.
That is because in the crunch the Treaty process — biculturalism — is about power-sharing. No one yet has a clear sense of how much power-sharing will result. Hence there is great uncertainty, some hope, much fear and considerable tension. So far this tension has been manageable and managed. But the Court of Appeal’s decision upholding the possibility of aboriginal title over the foreshore and seabed came as a profound shock to what most New Zealanders thought was settled custom and law. That decision has posed possibly the severest test yet for management of the Treaty process.
At one end of a very long spectrum of opinion and action some Maori are trying to elevate the Treaty into a binding document affirming and protecting indigenous rights and according Maori parallel, or at least special, status in governance of the country (verging, among those who hold the most extreme views, on “sovereignty”). These Maori celebrate an animist worldview which is profoundly at odds with the post-christian secularity of majority New Zealand.
At the other end of that very long spectrum of opinion are a minority of non-Maori who consider the Treaty an historical document with no relevance to a modern state and modern life and who see Maori as equal individuals before the law, entitled to no more from the state than any other individuals and subject to the democratic principle of one-person-one-vote, which is counter to some of the presumptions under “partnership”.
Between these extremes there are multitudinous opinions, not least among Maori. There are divisions between those Maori close to traditional marae and those living in the cities (often as third-generation or fourth-generation “immigrants”); between those who maintain the traditions and those who are little or no different from non-Maori in their attitudes and daily life; and, among leaders, activists and the intelligentsia, between purists and pragmatists, protesters and deal-makers. Moreover, tribes have different stances and preoccupations, depending in part on their leaders, in part on historical experience — including longstanding feuds — and in part on their locations, whether coastal or inland. There is no “pan-Maori” view nor any strong pan-Maori political organisation. But it is fair to say most active Maori, including traditional leaders and the intelligentsia, strongly affirm Maori influence in governance and strong protection for Maori land rights, traditional practice and self-administration of Maori matters, including delivery of social services. And it is fair to say that the great majority of non-Maori accept the moral imperative of redressing historical breaches of the Treaty (though are frustrated at the slow progress) and are prepared to acquiesce in a limited degree of Maori influence in governance, extension of the Treaty settlement process into taonga and respect for Maori spiritual and cultural belief.
Unsurprisingly, the political parties in Parliament reflect much of this span of public opinion. The Treaty is highly divisive at the parliamentary and electoral levels.
The ACT party (eight MPs) proclaims itself a party of “classical liberalism” in the Smith/Hume Enlightenment mould. It also pursues a populist agenda on crime and race which is hard to square with its claim to a principled approach in its promotion of classical liberalism. Thus ACT emphasises article 3, which it says does no more than assign Maori equality before the law and does exactly that and limits Maori influence to one-person-one-vote. ACT rejects what it calls “race-based” policies that advantage or single out Maori as a “group” and wants the Maori parliamentary seats abolished. It does accept that there should be redress for breaches of the Treaty over land but wants a time limit. It places much emphasis on property rights, which led it, alone among parties in Parliament, to argue that Maori should have their day in court on the foreshore and seabed and not have their property rights abrogated (even with the compensation the government is proposing). ACT now has no Maori MPs (though Donna Awatere-Huata, who in the early 1980s was a firebrand Maori activist and then became a well-paid consultant on Maori affairs to government departments and business, was an ACT MP from 1996 until she failed to renew her membership in 2003).
National (27 MPs) campaigns under the slogan “one standard of citizenship”, again appealing to article 3 and has recently adopted a policy of abolishing the Maori parliamentary seats. It rejects ACT’s pure property rights argument and says there should have been immediate legislation after the Court of Appeal’s decision to vest the foreshore and seabed in Crown ownership. It supports redress of breaches of the Treaty over land — it carried through three large ones, on the fisheries, with Ngai Tahu in the south and Tainui in the north — but now wants a time limit. It supports delivery of social services by tribal and other Maori agencies — and indeed pioneered them in health in the 1990s — but wants much tighter monitoring and an end to “capacity-building” assistance. It is highly critical of the proliferation of consultation provisions in legislation and requirements to observe the “principles” of the Treaty and pay respect to Maori spiritual and other “invisible” taonga. National has one Maori MP. National under its former leader, Bill English, also had begun to argue that the Treaty created rights for non-Maori as well as Maori and these should be debated alongside Maori claims.
New Zealand First (13 MPs) is led by a Maori, Winston Peters, who was briefly Minister of Maori Affairs in a National government in 1990-91 before forming his own party in 1993. He was Deputy Prime Minister for 20 months in a coalition government with National after 1996. Including Peters, New Zealand First has six Maori MPs out of 13. New Zealand First is a populist party and its strongest appeal is its opposition to immigration, particularly from Asia. It wants the Maori constituency seats abolished and refuses to stand candidates in the seats. Its position is generally close to National’s but with particular twists, the most important of which are a focus on lower-class Maori who do not benefit from Treaty settlements, criticism of the “grievance industry” and argument that the focus of Maori policy should be education. However, Peters also contrives to appeal to the traditional Maori leadership and has implied criticism of the government’s abrogation of aboriginal title for the foreshore and seabed while also insisting the foreshore and seabed must be open to all.
United Future (eight MPs) gives the government support on confidence and supply, thus assuring it of a majority (though not for all legislation). United Future’s leader, Peter Dunne, was a Labour MP and cabinet minister and, after forming his own party in 1995, was for a time in a National cabinet in 1996. United Future supports the government position on the foreshore and seabed. It supports redress for historical Treaty breaches but is critical of too great an extension of the Treaty process into taonga. It is uncomfortable with the extension of consultation requirements in legislation and the references to Treaty “principles” in legislation. United Future has no Maori MP.
Labour (52 MPs) has been the major government party since 1999. It started the Treaty process by passing the Waitangi Tribunal Act in 1975 and amending it in 1985 to give the Waitangi Tribunal jurisdiction back to 1840. As a social democratic party, it has historically been blind to race, seeing “Maori” either as members of the working class or a socioeconomic underclass. But the Maori renaissance of the past 30 years, the development of Treaty jurisprudence and activism, coupled with its tenure of the Maori constituency seats in Parliament (up to 1996, with a single exception in 1993-96, and again since 1999) have forced Labour to acknowledge ethnicity as a factor in social policy alongside class. In government, as noted above, Labour has significantly expanded the range of legislation under which consultation of Maori is required (most notably the Local Government Act and the Land Transport Management Act) and under which the Treaty “principles” are required to be observed. It has in many other ways, legislatively and in practice, greatly enhanced the role of Maori in public and official life. But it has also begun to set some limits, notably on Maori claims to ownership of oil and gas and aboriginal title over the foreshore and seabed and will continue to set limits to the Treaty on a case-by-case basis. It rejects self-government and “sovereignty”. Its junior coalition partner in government, the Progressive Coalition (two seats), is closely in tune with Labour, which is unsurprising since both its MPs came from the Labour party originally and its leader, Jim Anderton, was president and an MP. Labour has 11 Maori MPs and Progressive none.
The Greens (nine MPs) take their cue from Maori activists and on the foreshore and seabed argue that aboriginal title should stand, in keeping with a generally radical position on Maori policy. The Greens see links between their own spiritual respect for the land and nature and the Maori animist spirituality. The Greens have one Maori MP.
On current evidence, particularly if the economy remains buoyant, Labour appears headed for a third term at the next election, due by September 2005. However, the lead the four parties in or supporting the government have over the three opposition parties halved between June and December, from 25 per cent to 12 per cent. The start of this fall coincides with the Court of Appeal decision on the foreshore and seabed and, though it is unlikely the whole of the fall has been due to that decision and its aftermath, at least some of it is likely to have been. Labour’s support has fallen in that time from an average of 53 per cent to an average of 45 per cent, accounting for all of the fall in the combined support for parties in or supporting the government.
Thus “the Treaty” (in its extended sense to encompass also indigenous rights) is critical to the electoral health of the government and may play a determining role in the next election if tensions are not eased and especially if the government foreshore and seabed proposals fail. The government is extremely sensitive on that issue. It has set traditional Maori leadership and Labour at odds. But Labour cannot accommodate Maori demands without risking a serious backlash from its non-Maori support base. The Treaty is by far its biggest test.
In the final analysis politics is about numbers. Maori have 20 MPs out of 120, which is a little better than proportionality. The MMP electoral system has definitely worked for Maori in that respect. If Maori were to form a party or grouping which won all seven Maori constituency seats in Parliament (likely to be eight from 2008 as the Maori population grows), that grouping could hold the balance of power in most and perhaps all future Parliaments. This looked conceivable in 1998 when New Zealand First held all the Maori seats and most of those MPs split from New Zealand and formed a new party. But that new party won no credibility with Maori.
In the absence of such a party, the potential for Maori leverage rests on the Maori MPs in the Labour party who make up one-fifth of Labour’s contingent of MPs. The foreshore and seabed issue looks set to show just how effective (if the legislation fails) or ineffective (if the legislation passes) that leverage is when the chips are really down. All but two of the Maori MPs have backed or acquiesced in the government’s proposal. The two holdouts are likely to be reminded bluntly that they are “Labour first, Maori second”. Ministers are quietly confident they will come round.
In other words, in the final analysis recognition of the Treaty and indigenous rights is a moral, not a legal or political, imperative. The majority decides where the boundaries shall be drawn. And it is becoming clear that the limits either have been reached or are very close. If there is a change of government in 2005 to one bent on curtailing consultation, rights recognition and power-sharing, that may signal that the limits have been exceeded, at least for this time and this generation.
Associate Maori Affairs Minister John Tamihere reckons that this generation is doing “the hard yards of nation-building” and that in another generation this process will be well advanced and tensions will have eased.
This is an optimistic but not outlandish assessment. There remains a great deal of two-way goodwill, underpinned by extensive interbreeding and social intermingling, great respect for Maori sports prowess — some national teams would struggle for international respectability without their Maori contingents (and that of the Maoris’ polynesian Pacific island cousins) — and the meshing of the two cultures, the dual indigenisation of this country.
The politics are hard. But they are not impossible. And if this generation successfully negotiates the “hard yards”, the focus will shift to where it already is for non-Maori and many Maori and where it would have been for all Maori if there had been no colonisation: on how to make the population, regardless of ethnic mix or origin, fully competitive internationally and fully part of this internationalised but unique society.
Notes 1. As revised to take into account some comments after presentation.
2. Henceforth in this paper the Treaty of Waitangi will be referred to simply as the Treaty (with a capital T). Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa and Rangitane and Anor v Attorney-General and Ors, CA197/01 [19 June 2003], unreported.
3. Paul Gerard McHugh, Brief of evidence to the Waitangi Tribunal in re Applications for an urgent inquiry into Foreshore and Seabed Issues, WAI No 1071, 13 January 2004, delivered 22 January 2004.
4. I have argued this in Colin James, New Territory, the Transformation of New Zealand 1984-92 (Bridget Williams Books; Wellington, 1992), quoting in particular Bill Brugger and Kate Hannan, “Modernisation and Revolution” in David Close and Carl Bridge (eds), Revolution: a History of the Idea (Croom Helm, Beckenham, 1985), pp120,131.
5. Aotearoa is the usual Maori name for New Zealand, though strictly speaking, it refers only to the North Island and in any case is a post-Treaty construct (see Michael King, The P:enguin History of New Zealand (Penguin, Auckland, 2003), pp41-2). The formula Aotearoa-New Zealand is increasingly used by an increasing number of people, to acknowledge the bicultural nature of New Zealand Society. The Greens, for example, have called their party the Green Party of Aotearoa-New Zealand.
6. New Zealand Maori Council v Attorney-General  1 NZLR, 664
See Colin James (ed), Building the Constitution (Institute of Policy Studies, Wellington), 2000, pp10-12,15-19, 144-52, 163-5, 193-218. More than 100 widely varying invited participants debated 47 papers on the social, cultural, historical and political backgrounds to and all aspects of the constitution on 7-8 April 2000
7. For example, “Seabed plan ‘will cause tension for decades”, Dominion-Post 21 January, pA4: “Wairata Te One One, of the Sovereign Council of Te Tangata Whenua told [Waitangi Tribunal] Judge Wainwright [at a hearing by the tribunal into whether the government’s plans for the foreshore/seabed]: ‘We are the law here, we are the sovereign council.’ ”
8. The highest profile accusations, now before the court, have been against ACT MP Donna Awatere-Huata, in respect of an educational trust. Awatere-Huata has strenuously denied all charges. She is no longer a member of the ACT party and ACT is trying to have her removed from Parliament.
9. Jeremy Waldron, Quentin-Baxter Memorial Lecture, Victoria University Law School, 5 December 2002.
10. As described in Paul Harris and Stephen Levine, The New Zealand Politics Source Book (Dunmore Press, 1992), p18, note 2, on Professor Hugh Kawharu’s literal translation of the Maori text of the Treaty.
11. Since this speech was given Tariana Turia has said she will abstain, which gives the government a majority if United Future votes for it.
12. Supra, note 7.
13. Some of the implications of treating Maori as a “group” for public policy purposes are explored by Paul Callister in “Ethnicity measures, intermarriage and social policy”, a paper prepared for the Connecting Policy, Research and Practice conference, Wellington, 29-30 April, 2003
14. See supra, note 10
15. John Tamihere, “Hard yards of nation-building”, New Zealand Herald, 6 February 2003, pA19.