Each Waitangi Day we edge a little farther from memories of empire, as Sir Edmund Hillary’s non-Royal funeral reminded us. Each Waitangi Day these past few years we have come a little closer to embracing it as our national day.
For a quarter-century it was a day of disruption, protest and (literally in 2004) mudslinging. Helen Clark stopped speaking at Te Tii marae in protest at the protests.
Her constructive response was to widen the celebration to include all resident cultures, to promote the Treaty of Waitangi as more of a symbol for the whole nation — that is, more than a two-party trade that allowed the Queen’s men in here and on top, re-engineered in recent decades into a bargaining chip for Maori to win redress and affirmation.
That is an important shift of focus.
Technically, the Treaty is between “the Crown” and Maori tribes. The Crown is an arcane euphemism for the government, which in modern New Zealand is the instrument of the majority. That reality will be exposed when the monarchy some (distant?) day is disestablished and there is no “Crown”, just the state.
Meantime, sensibly, we will muddle along, adjusting our constitutional paraphernalia to fit the facts, usually, sensibly, long after the facts have changed.
Among such changes in recent times have been the rebalancing of legislative power between the Executive and Parliament (MMP) and patriation of our highest court — and the resurrection of the Treaty. The country has not collapsed into division, despair or despoliation.
The change in the Treaty’s status was driven by a rising proportion of Maori in the population, a rising Maori generation’s assertiveness and rising international attention to “indigenous rights” as a distinct branch of human rights. A response became unavoidable.
In turn, the Treaty’s resurrection facilitated what Mason Durie in a speech last Thursday at Te Papa called a “spectacular transformation” in the place of Maori in the nation’s constitutional, legal, administrative, cultural and spiritual life and customs. Other factors contributed to the transformation, he said, but without the Treaty “it is unlikely that they would have occurred to the same extent or at the same pace”.
In short (and these are not Durie’s words), the Treaty was a convenient peg on which protesters, politicians and judges hung new policy and practice. The result, Durie correctly said, is that it has become “embedded in the life of the nation”.
But, he added, the Treaty’s status is still uncertain. Matthew Palmer, following Durie, proposed it should be written definitively into law. Judges would then fix its meaning and its protective reach. But that is not the way we habitually adjust our arrangements.
The actual Treaty reserves some self-determining rights for iwi and hapu and accords Maori equal rights as citizens. But some have bestowed on it an almost mystical role as guarantor of “indigenous rights” — that is, of special rights for the descendants of those who got here first.
But what are equal rights? And what are indigenous rights?
The United Nations last year issued a non-binding declaration of the rights of indigenous peoples. That declaration focuses essentially on eliminating inequalities — to redress the marginalisation and oppression of those who were in a land first by a different race who came later: the suppression of language, culture and spirituality, the dispossession of land, the unequal treatment and opportunity and the exclusion from power and decision-making. That is, in our case, to make up for British behaving badly.
Turn this around: the declaration is an assertion of full equality. So is the modern reading of the Treaty.
Full equality goes far beyond the dessicated “one law for all” the anti-Treaty brigades promote.
It requires equality of active, not just formal, respect — in the power structure, policy, the law, everyday practice and national custom — for language, culture and spirituality and economic assets and their management (article 2 of the Treaty) and real, not just formal, equality of access to opportunity in a shared society (article 3).
Together those make up the rights of our indigenous people. Their basis is not that Maoris’ ancestors got here first but that they are humans.
The result, if we stay on track, will be a different shared society from today’s. In fact, we have already significantly changed that society. It is much more Maori — more Pacific — than 20 years ago.
And 20 years hence that shared society will also reflect more the contribution of recent arrivals. It already shows small signs of that. Clark is ahead of the game.
And in that game the Treaty will be importantly symbolic but less a cause for mobilisation, obsession, division and unequal hope.
Our flexible constitution will adjust, as it has, about 20 or 30 years behind the play. That is how we do things here. Our changing treatment of the Treaty’s special day, our almost national day, tells us that.