WAI262: the Treaty after grievances are settled

There two Rahui Katenes on Saturday. One told the Dominion Post (so it alleges) that the WAI262 report released that day was “very political, weak and missed the point”. The other, in an official press release late on Friday evening, called it a “lightning rod for a pathway to partnership which reflects the constitutional promises made in the Treaty” of Waitangi.

Katene is a Maori party MP who must look to her left flank where Annette Sykes alongside Hone Harawira will hammer every compromise on tino rangatiratanga. She is daughter of WAI 26 claimant John Hippolyte and must keep faith with her tupuna. She is a ranking Maori who must always keep the long view and not pass up opportunities to take steps towards the long goal, however distant it then still remains. And she is an MP in a partner-party in the government and that nexus must hold tight.

Complexity pervades modern Maori politics — and pervades the Waitangi Tribunal’s decision on WAI262 (code for Treaty of Waitangi claim No 262). Complexity is part of the reason it has taken 20 years to put together, though also the tribunal decided “district” claims for redress of breaches of the Treaty were more pressing.

Now the National party part of the government Katene is attached to will slowly work out what to do. Treaty Negotiations Minister Chris Finlayson as good as kicked it to touch — that is, froze it until after the election — when he said it would give the government “much food for thought” and emphasised that the recommendations are “non-binding”.

He went on: “There is an emerging international consensus to help guide the government’s response in some areas and in other areas the issues are very novel and any response should not be rushed.”

Finlayson didn’t need to add that out to his right an “appalled” Don Brash told the Dominion Post (so it alleges) the government should rule it out straight away. Policy toward iwi, hapu and Maori is one of the two policy areas on which National is most vulnerable to ACT.

WAI262 covers some of the most fraught Treaty issues: education about culture and heritage, protection of Maori cultural works, knowledge and the language, guardianship of native flora and fauna, especially those with special significance to an iwi or hapu, and natural medicines and practices known to Maori.

The report is clear that the government governs and makes the law. (In that sense there is one law for all, as Brash wants.) But it is also clear that if iwi and hapu are to exercise the Treaty’s article 2 commitment to tino rangatiratanga over taonga (things special to iwi and hapu), there have to be formal legal and institutional arrangements to ensure and enable that. For now, the report says, “Maori remain sidelined from decisions about key aspects of their culture”.

So logically — to Brash’s fury — that includes the Resource Management Act, which rules over much of what WAI262 is about.

And there is a bigger logic, one which New Zealanders will struggle with for the next decade or two: to move from erasing a negative, which has wide public support, to deriving and driving a positive Treaty settlement, on which most New Zealanders have yet to be convinced.

The tribunal put it this way: “It is time for the Crown-Maori relationship” (actually the Treaty is a Crown-iwi/hapu relationship) “to evolve from one based on historical grievance to an ongoing partnership based on mutual advantage. This partnership must secure the place of matauranga Maori (Maori knowledge and lore) in New Zealand law and in government policy and practice.”

This has been exercising some minds in Wellington in the bureaucracy and in the Institute of Policy Studies, where Paul Callister has published on a website a suite of short papers on the Treaty’s place and role after grievances are settled. One, by Danette Marie, argues for a “post-ethnic future” which challenges the bicultural assumption at the base of the “partnership” concept in the WAI262 report. Biculturalism, Marie argues, makes Maori “forever the special case”.

Marie’s paper has itself been challenged as “based on flawed assumptions”, which underlines how touchy this debate will become as officials, politicians, iwi and hapu and the public start to come to grips with WAI262 after the election is safely over.

And the government has ensured it won’t go away. Soon we are to learn how a constitutional review to start next year will be conducted.

That review will not be able to skirt the tough Treaty questions. Any serious revision of the constitution must state where the Treaty fits: as a superior document, as an entrenched super-bill-of-rights with full legal weight or as a part of the constitution, alongside many other parts — or, as now, left outside as the “founding document” but needing specific legislation to have legal effect.

The point is that settling the grievances doesn’t settle the Treaty. WAI262 is one more big step in a long, winding journey. As Katene knows.