Making a future nation

Colin James’s speech in the Te Papa Waitangi Day series, 8 February 2007

Thirty-five years ago, when Pat Hohepa and Ranginui Walker first inducted me into some of the mysteries of the Treaty of Waitangi, the Treaty was a rat-gnawed relic of no legal, moral or political effect, a footnote in history. The British exiles who ran this place had appropriated elements of Maori custom and culture to make a small differentiating marker and had welcomed Maori into the British mainstream. But most Maori were parked in a social and ethnic underclass along with Pacific islanders.

Today the Treaty is a reality.

It is, first, an historical reality, recognised as the founding document of the nation, the pact between the British government, in the name of the Queen, and around 500 iwi and hapu chiefs which legitimised British annexation and rule according to British law and custom.

It is, second, a partial legal reality, written into a variety of acts of Parliament using various formulas and referred to by the courts in judgments. Flowing from that, it is an administrative reality, influencing the way departments and local governments organise, recruit and act.

It is, third, a moral reality, having been accepted by the political elite and, to varying extents, by a large proportion of the population, as having some (ill-defined) force for justice.

Flowing from that, it is, fourth, a political reality, a potent influence in the radical reshaping of our politics and our society, the instrument by which iwi and hapu have a place in the power structure and the legislated basis for a truth-and-reconciliation process documented by the Treaty of Waitangi Tribunal.

Some think the Treaty is a bigger legal and political reality, the constitution of this nation, but it is not that. It is, as Matthew Palmer has put it, a document of cession and protection.

Today the Treaty is also a fiction.

It is, first, a legal fiction created by the courts, a notional “partnership” between iwi and hapu and the Crown (also essentially a fiction). This fiction implies another, alluded to by the Court of Appeal in 1987, that the Crown has a duty to protect iwi and hapu rights.

It is, second, a political fiction, furnishing a means of addressing claims for traditional iwi and hapu rights and remedying breaches of those rights and setting a prism through which we can, or must, think of ourselves as “bicultural”, that is, as a society with two equally valued principal cultural and spiritual heritages and practices, and not simply “multicultural”, which requires acceptance of difference but does not disturb the power structure.

Some think the Treaty embodies a deeper and broader fiction, the “idea” on which this nation rests, much as the United States rests on the “exceptionalist” idea of a “manifest destiny” embodying individuality, liberty and opportunity. I think that is not the case because today, while the Treaty unites, it also separates.

How does the Treaty both unite and separate? It unites because its signing sanctioned the inextricable intermingling of two peoples: he iwi tahi tatou, we two peoples are one nation. It divides by lending formal credence to the claim that only those with Maori ancestry are people of the land and others cannot ever be, regardless of contribution and number of generations lived here. A nation cannot be a nation unless all people feel fully part of it and that requires that all are people of this land.

Thirty-five years from now will we still recognise these realities, these fictions and this unifying and dividing machine?

The Treaty will still be an historical reality, both in the fact of the original signing and in the fact of its revivification these past 25 years.

My guess is that the Treaty will still be a legal reality. But I am not clear what form that will take.

Paul McHugh and others argue that legislation and court decisions have irreversibly embedded the Treaty in our law. Thus simple repeal of the references in statutes to the Treaty and its “principles” would leave a vacuum which the courts would fill by applying common law principles. These would have developed in response to iwi and hapu rights claims if there was no Treaty, as they have to those of other pre-colonial peoples — witness the Mabo case in Australia (and the Te Weehi case here in 1986). Moreover, the Treaty of Waitangi Tribunal still has at least 15 years’ work to do and any arrangement to replace it would need legislation referring to the Treaty.

So the Treaty cannot now be reduced to the “simple nullity” conventional legal analysis once assumed. In any case, if we step outside the legal cloister we quickly recognise that legal annihilation of the Treaty any time in the next 10 or even 20 years would provoke social and political unrest. Iwi and hapu reaction to the Foreshore and Seabed Act tells us that.

That reaction brings us to a political and social reality underlying the legal reality: the demographic reality. Maori are a larger, and therefore less comfortably deniable, proportion of our population than pre-colonial peoples in other countries. It is correspondingly important to the economy and critical to social cohesion that those who have Maori whakapapa are fully participating members of this hybrid society in all ways. That demographic reality was instrumental in creating the Treaty reality: it was politically, economically and socially prudent to address Treaty rights. The demographic imperative may also explain why such a profound change in the status of iwi and hapu in the power structure and in the respect accorded to Maori culture and spirituality, amounting in my view to a social revolution, has been effected astonishingly peacefully.

Nevertheless, there has been much unease, puzzlement and even anger at a process conducted by the political elites on both sides of the Treaty without popular involvement and consent. The public reaction to the Appeal Court’s foreshore and seabed decision in 2003 — a common law decision, not a Treaty-based one — and to Don Brash’s Orewa speech six months later illustrate that.

The politicians sidestepped out of that melee by drawing a line in the shifting sands. The range of rights that will be conceded to iwi and hapu under article 2 has reached its limit, at least in this generation. That is because there is another side to the demographics, the political majority.

That line in the sand is a certainty of one sort. Maybe it is time to draw a legal one, too, to codify the hotchpotch of statutory references to the Treaty and the courts’ rulings, in order to give clarity to what to most people is a mystery and to some a frightening or dangerous one.

If so, how? By way of a new Treaty of Waitangi Act? That is politically feasible but can a legally credible bill be drafted? In any case, it would create a new field day in the courts. It might be more expedient to expand the Bill of Rights to include the Treaty and maybe also make that part of it justiciable, with the status of higher law. Iwi and hapu rejected that option in the 1980s as diminishing the Treaty’s mana. And if you are going that far, why not go the whole hog and inject the Treaty into the Constitution Act, by way of a preamble or a special clause?

This is not dancing on the head of a pin. We will one day abolish the Crown, perhaps even within my 35-year timeframe. And that will involve re-framing the Constitution Act, which cannot be done — at least not with iwi and hapu consent — unless the place of the Treaty is resolved, for the Treaty is with the Crown. If there is no Crown, what or who is to be substituted for it? Or will the Treaty then just biodegrade? These are not pressing questions yet but they will become so. (Not least, it is surely an anachronism that iwi and hapu cling to the notion of a head of state who lives in distant country which does not accord them any status.) We would do well to think about this before it becomes pressing so we navigate this set of political narrows more consensually than those we have been going through.

And note I have continually said “iwi” and “hapu”, not “Maori”. The Treaty was with individual tribes and subtribes, not with a “race”. Don Brash misapprehended this. This misapprehension was in part driven by his reverence for Enlightenment liberalism, which recognises only individual and not group rights and which is blind to ethnicity and race. But the presumption that the Treaty has been about race has also been a widespread public misapprehension, not helped by some muddled politics and much attention, particularly by the Labour party, to group rights, including “Maori” rights, nor helped by a presumption which seems to lie behind much of the pro-Treaty positioning that every Maori is in partnership with the Crown. Public unease, puzzlement and anger would greatly reduce if the focus of Treaty-based policy, action and law was obviously and unambiguously on iwi and hapu and not on Maori-in-general. There is, of course, a great deal of overlap between iwi and hapu and Maori-in-general but there are also important distinctions: not all those of Maori descent are on iwi rolls and many Maori-focused and operated organisations are not iwi- or hapu-based. The drafters of any new Treaty statute would usefully observe those distinctions.

The distinction is drawn in the Treaty itself. Article 2 speaks of tino rangatiratanga, which cannot refer to Maori-in-general. The rights article 2 reserves are those of iwi and hapu. The Treaty does also speak of rights under article 3 but they are the rights everyone has as a citizen in civil society and politics and, since the creation of the welfare state, to full self-realisation and participation in society through state-funded education, health care, housing and welfare. (Some have tried to push the debate to encompass article 1 and thus to relitigate the passing of sovereignty from iwi and hapu to the colonial government. But our majoritarian political system rules that out for my 35-year timeframe.)

But there was, and is, another dimension to the Treaty. In 1840 the colonists wanted land and opportunity. Maori wanted access to British technology, peaceful and military. The Treaty was about development as well as rights.

Had Aotearoa not been colonised, what would be the ambition of iwi and hapu for their peoples? Surely it would be dignity and prosperity in a globalised world. This is not identical with American consumerism. Each group, each society, each nation defines dignity and prosperity for itself. New Zealanders as a whole don’t have the same definitions as Australians as a whole — otherwise we would all be in Australia in clover. Iwi and hapu can write their own definitions.

Rights are relevant to dignity and prosperity — in fact, a precondition. Without rights there is no dignity and without dignity prosperity is unlikely. But rights do not predestine dignity and prosperity. In a modern world education and an excellent start in life which generates confidence, aspiration and an openness to change are the strongest determinants.

That brings us to the fictions. Will — can — the fictions that gave the Treaty life be sustained over the next 35 years?

I have already asked what happens if the Crown is abolished. But what about the signatories on the other side?

Iwi and hapu have strengthened as Treaty settlements and a new generation of leaders have improved governance and made getting on the iwi roll more attractive. But iwi and hapu will change over the next 35 years, perhaps greatly. As more people acquire more iwi affiliations through miscegenation, as people of one-one-hundred-and-twenty-eighth descent claim iwi membership, as urban and other quasi-iwi evolve, as other Maori-run organisations — health, education, housing, welfare, economic — proliferate and cross iwi boundaries, as the rising middle class democratises iwi and hapu governance and as modernising artists, musicians and writers tamper with tradition and the “mainstream” creates haka with English words, will iwi and hapu still be strong and distinct and broad-reaching enough to credibly claim a “partnership” and so maintain the Treaty fiction? What will make them distinct enough from other membership organisations (churches, charities, Maori health agencies, for example) to enforce the claim to “partnership”?

I can hear the answer: they will be tangata whenua. But is this also a fiction?

As we move from the seventh to the eighth and then the ninth generation of ex-British — and ex-Irish, ex-Chinese, ex-Danish, ex-German, ex-Indian, ex-Samoan and so on — non-Maori will less and less accept exclusion from full belonging here. Can a single mixed marriage or casual liaison 10 or 100 or 200 years earlier confer tangata whenua status yet seven or eight generations farming a much-loved territory not make a person of the land? The fiction will wear thin.

Then at some point — which may or may not be within my 35-year timeframe — the international intellectual fashion of the past 35 years for indigenous rights theory and social analysis will wane. Another fashion will supplant it. The moral force of pre-colonial here-first-ness will wane with it. And so will a Treaty which depends on the fiction of “partnership” between small tribes and subtribes and a shadowy British Crown.

That does not say the moral force will also wane for righting injustice, for evening up life chances, for recognising and respecting spiritual and cultural treasures in practice and in law and for member-based organisations running themselves according to their members’ wishes within a generously accommodating law that knows and respects heritage, including iwi heritage. But that does not need indigenous status nor does it need a Treaty. It needs a decent society, schooled in moral duty, attentive to minority rights. If we still need to lean on the Treaty for that, we will be a sad society.

That does not say we give the Treaty back to the rats. It is to see the reborn, rebuilt and re-sited Treaty of the 1980s and 1990s as it was intended in 1840: the precursor of a nation of two intermingled peoples.

The difference is that the nation-to-be now is not an 1840 offsite new Britain. It is a 2040 Pacific nation. I have argued at length elsewhere that, independently of the Treaty, we are becoming, irreversibly, in our national culture and customs, increasingly of the Pacific and not just in the Pacific — with, not on top of, Maori. That is changing the way we think about ourselves and the way we conduct ourselves and the way we govern ourselves, sometimes in ways that challenge our British institutions to their core.

What will that make us? The people of this land. All of us.

And maybe we can combine in that status both of the defining characteristics of a nation, “idea” and “folk”. The “idea” — the “fiction” at the nation’s base — could be that our special land-sea-forest, embedded in Maori whakapapa and celebrated in the clean-green myth, both distinguishes us from other nations and generates a national project: to make our first priority the sustenance of this land-sea-forest of ours and the songs and stories and pictures and energies that grow out of it. And if we adopt that “idea”, maybe we will find to our happy surprise that 35 years from now we are a “folk” here, the “folk” of a nation.