Treaty

My recent article about the role that the concept of a Treaty ‘partnership’ has played in the development of ethno-nationalism provoked a critical response from Professor Andrew Geddis. We obviously have different opinions about the value of a Treaty partnership in New Zealand’s liberal democracy. My purpose here is to address the specific matters raised by Geddis.

He is correct to point out that original 1975 Treaty of Waitangi Act only permitted complaints to the Waitangi Tribunal about post-1975 breaches of the ‘principles of the Treaty by the Crown’. This does not in any way detract, as Geddis maintains, from my conclusion about the role of the 1985 Amendment Act. I argued that what differentiates the 1985 Amendment Act from the 1975 Act is the ‘recognition of iwi-Māori rather than pan-Māori as the inheritors of Treaty settlements’. That recognition established the reviving tribe as “both political player and economic corporation” and has been foundational in promoting the tino rangatiratanga or ethno-nationalism exemplified in the He Puapua report. I stand by this conclusion.

Geddis is also correct to say that the 1975 Act refers to the principles of the Treaty. I had stated that the State Owned Enterprises Act 1986 represents “the first reference in legislation or policy to the principles of the Treaty – indeed, the first indication that the Treaty has principles”. I was referring to the beginning of the process of enacting the “principles” of the Treaty by including them in legislation and policy beyond the two Treaty Acts themselves. In response to his criticism I would add the following italicised words to ensure that my point is clear. “This is the first reference in other legislation or policy to the principles of the Treaty – indeed, the first indication that the Treaty has principles which could be enacted in legislation and policy”. I had thought that the sentence context supported my point but I accept the need for clarification and am pleased to have the opportunity to do so.

Geddis points out that there are now ‘44 current parliamentary enactments’ which contain the phrase “principles of the treaty”. I accept his rebuke that this number is substantially less than the 1800 enactments on our statute books. However I continue to maintain that this number is significant, not least because of the areas of public life to which they refer and to their flow-on effects. Legislation leads to policies and to the practice of policies. My own area of education contains numerous examples of this. I will limit myself to one example – that of teaching course reviews. I teach in the Faculty of Education and Social Work at the University of Auckland. After teaching a course, whether undergraduate or post-graduate, I complete an obligatory course review. A section in the review template asks: “How does the course critically reflect Treaty of Waitangi obligations (Māori histories, traditions, values, identity, language, culture and Mātauranga Māori (Māori ways of knowing, doing and being)?”

This obligation is justified with reference to the 1989 Education Act requirement. The Act states that it is the duty of University Councils to “acknowledge the principles of the Treaty of Waitangi”. That legislation led to comprehensive policies developed by the 2003 Maori Tertiary Education Framework and subsequently. In turn these policies have put Treaty “acknowledgement” into a wide range of obligatory practices in higher education. They include not only the teaching course reviews I mention above but research procedures and funding applications.

The compulsory education sector, health, social work, local government and justice are among other areas of public life similarly affected by Treaty principles. Unfortunately in his focus on the number of statutes, Geddis deals neither with their significance nor with my key point. This is that “adequate justification was not given to the New Zealand people when the process” of inserting Treaty principles into legislation “began and there has certainly been no justification since. The peoples’ agreement has never been sought”.

Justice Robin Cooke described the 1987 Court of Appeal case which interpreted the Treaty principles as “perhaps as important for the future of our country as any that has come before a New Zealand court”. Despite the fact that legal interpretations have political consequences, it is difficult, almost impossible, to have an open discussion about what is a valid judicial interpretation and what is political activism by the judiciary – the latter I claim to be the case in the 1987 decision. Since the late 1980s Treaty matters are ring-fenced in the esoteric world of the Law. The public is left hesitant to question such putative authority. Yet public engagement with decisions which have huge constitutional consequences is needed now more than ever as we deal with the possibility of tino rangatiratanga for New Zealand’s future.

Geddis notes that the phrase “the principles of the Treaty” had been considered and applied by the Waitangi Tribunal in eight of the Tribunal’s reports prior to 1986. However, Waitangi Tribunal reports are not legislation – I was writing about legislation. He refers to the Tribunal’s role in influencing the Court of Appeal’s 1987 decision regarding its interpretation of the 1986 State Owned Enterprises Act. Rather than ‘badly misrepresent(ing) the complex interaction between the Tribunal and the courts in this area’ as he states, I find that his comment strengthens my argument.

I am alarmed that Waitangi Tribunal reports do influence the courts to the extent he claims. If this is the case, then my concern about judicial activism playing a key role in the contemporary interpretation of the Treaty is confirmed. Indeed the path from the Tribunal to the courts to ethno-nationalist politics is illustrated by a comment made in 1989 by Sir Hugh Kawharu. Kawharu acknowledged the significance of the 1987 Court of Appeal judgement in particular as the ‘resurgence of acceptability of tribal authority’.

I will not comment on Professor Geddis’ allegations of “carelessness” and “poor scholarship”. Such language is used in order to undermine an opponent’s arguments and has no place in discussions of this nature. Published in The Democracy Project, 25^th July 2021

The He Puapua Report proposes revolutionary change for New Zealand. The question of how we have arrived at a crossroads where New Zealanders will have to choose between an ethno-nationalist state — which He Puapua leads to — or a democratic-nationalist one has its origins in three events in 1985, 1986 and 1987.

It was in these years that the concept of a Treaty of Waitangi “partnership” was created. It is the foundational pillar for the Report’s goal of “transformative restructuring of governance to recognise rangatiratanga Māori”. Iwi self-determination includes the co-governance arrangements laid out in He Puapua. There is also the likelihood of claims for the ownership of up to 50 per cent of public assets such as water, sea territories, flora and fauna, and airwaves. Is this path to ethnic nationalism inevitable?

The first key partnership event is the 1985 Treaty of Waitangi Amendment Act. While the 1975 Treaty of Waitangi Act was about the settlement of historical grievances, the 1985 Amendment Act was a very different matter. The recognition of iwi-Māori rather than pan-Māori as the inheritors of Treaty settlements established the reviving tribe as both political player and economic corporation.

The second event was the creation of Treaty principles. A year after the 1985 Amendment Act, Deputy Prime Minister Geoffrey Palmer agreed to Sir Hepi Te Heuheu’s request to insert the clause “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi” into Section 9 of the State-owned Enterprises Act 1986. This is the first reference in legislation or policy to the principles of the Treaty – indeed, the first indication that the Treaty has principles. Parliament did not define the principles — an unconscionable failure which opened the way for the courts and government officials to determine what is probably one of the most important political events of the 20^th century. Treaty principles, including that of partnership, now appear in almost all legislation.

The third event was the 1987 Court of Appeal decision stating that the Treaty established a relationship “akin to a partnership”. Although the judges likened it to the obligation partners in a partnership had they did not say that the Treaty actually created a partnership. Nor did it. However, “partnership” was quickly picked up by the Waitangi Tribunal and by the 1987 Iwi Leaders’ Forum. From that time this powerful interest group has achieved enormous success in claiming constitutional change and ownership rights. “Partnership” is the justification. The possibility that the He Puapua Report will be implemented either in full or modified form demonstrates the group’s success to date.

The path to ethno-nationalism is made possible by the combination of iwi leaders’ strategies and the failure of leadership by the nation’s politicians. That failure is most vividly demonstrated in Simon Upton’s description of the National government’s insertion of Treaty principles into the 1991 Resource Management Act: “I am quite sure that none of us knew what we meant when we signed up to that formula” requiring local government to “take account of the ‘principles’ of the Treaty”.

Despite not knowing what adherence to Treaty principles really means and, following from that, being able to hypothesise the likely consequences, successive governments have continued to insert Treaty principles into legislation. Adequate justification was not given to the New Zealand people when the process began and there has certainly been no justification since. The people’s agreement has never been sought.

A different but also highly successful strategy is the control of Treaty language, particularly the use of religious imagery. Referring to the Treaty as a “covenant” with a spirit that “still speaks today” evokes a timeless and commanding authority. This otherworldliness takes the Treaty from the combative political sphere to a level of unquestioning reverence. It disallows the profane debates that democratic politics requires, making such behaviour seem disrespectful, almost shameful. Words like “atone”, found in the government’s apology to Tainui, suggest the expiation of a sin-inspired guilt with redemption only through reparation. The strategy succeeds by placing the Treaty outside history and beyond politics. The degree of this success can be seen in the total absence of satire. New Zealand satirists are fearless in mocking sacred cows – why is the Treaty not mocked?

Iwi strategists’ use of the legal system contributes to the success. Legal processes and language obfuscates political interests and the racial ideology of whakapapa. The most obvious example is the constant use of the word “Crown” in elevating Treaty matters to a realm above the people. “Government” just doesn’t have the same gravitas, operating as it does in the real world of competing interests and democratic accountability.

The focus on the second of the Treaty of Waitangi’s three Articles has proved a successful strategy. Judicial interpretations have led to the three Treaty Articles being dealt with in isolation. The concepts of sovereignty in Article One, resource possession in Article Two, and citizenship in Article Three are no longer considered together with the meaning of one Article being dependent upon the meaning of the others. In addition, by the early 1990s, Article Two’s increasing emphasis on ownership rather than possession was determining the meaning of Articles One and Three.

Another effective strategy involves conflating the two fundamentally different types of biculturalism. Many New Zealanders who support the inclusive form, some since the 1970s, end up supporting exclusive biculturalism by default.

Inclusive biculturalism has three defining features. First, Māori culture is valued because it is unique to this land. Second, Māori and non-Māori cultural practices may be accommodated in the public sphere but only to the extent to which they are consistent with the principles of liberal democracy. These include principles such as tolerance, secularism and gender equality. Third, political allowance for ethnic or race heritage occurs only when such recognition strengthens the democratic social contract. This would include temporary initiatives to increase the numbers of Māori professionals and to improve Māori health and education outcomes. He Puapua is, of course, strongly opposed to inclusive biculturalism. Its goal is the exclusive racialised kind.

The path to ethno-nationalism is helped by the media’s treatment of Treaty issues, which tends to be either sycophantic or hostile. Criticism is misunderstood as a rejection of inclusive biculturalism and as anti-Māori. The focus on the critic deflects discussion from ideas to the person. There is an unseemly interest in the critic’s ethnicity and assumed political position. Shouting “racist” has proved to be the most effective silencing strategy in ensuring compliance. The promotion of the unscientific and discredited notion of “unconscious racism” leaves many non-racist New Zealanders doubting even themselves.

The universities must also take responsibility for not challenging Treaty ideology and contributing not only to the climate of conformity, but to creating the ideology. Decolonising and indigenising processes are under way in many universities, in the Royal Society and in academic journals. Matauranga Māori is the most visible of these processes. Attempts by colleagues and myself to examine the actual nature of the relationship between matauranga Māori and science remain stalled in this oppressive climate.

The extent of Treaty ideology in the university is more disturbing than in society at large. Universities are responsible for leading the public scrutiny of social and political life. Academics are even protected in doing so. The Education Act 1989 guarantees the freedom, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions. Where are the academics in the social sciences, the law schools, in philosophy and in education undertaking this critique? With the current roll-out of matauranga Māori into the natural and physical sciences and the accompanying funding shifts, will that criticism finally emerge? If not, the absence will be a clear sign that not only can ethno-nationalism not be challenged by those who have protection in so doing but that it is too entrenched in our institutions to be turned back.

There are many more strategies, all rather impressive in the skill with which they create a fog of confusion with regard to Treaty politics. I will limit myself to a final but very important one. As with all ideologies, it’s the small practices which ensure the conformity needed for successful transition to a new order. In New Zealand these small practices have been inserted at every level of all public institutions. I am regularly confronted by them in my own work in a university. However, a new one is emerging in the public sector. It is a language shift from “Treaty principles” to “articles”.

This particular wording change is extremely significant. Currently it is the Treaty principles which are included in all legislation, not the Treaty of Waitangi itself. No government has been willing to go that far – yet. However, attuning people to use “Treaty articles” instead of “Treaty principles” will provide the mind bridge required for people to accept the placement of the Treaty of Waitangi into law. That will be the event constituting ethno-nationalism.

The exclusive biculturalists driving the separatist agenda are actually a rather small group of individuals, numbering only in the hundreds. They are ethnically diverse and include iwi-Maori leaders, intellectuals, lobbyists, academics, activists, lawyers, officials, media figures, and politicians. Tight self-referential networks, strong personal relationships, and a willingness to play the long game have led to their remarkable success. These are all features common to those who lead revolutionary change.

The consequences of these moves are set out in He Puapua. It assumes that the Treaty of Waitangi is a “partnership” between the tribes and the “Crown”, one that entitles the tribes to economic and political rights in perpetuity to the exclusion of all others. This assumption is held to be true, sacred and non-negotiable. The success of Treaty strategists to date, combined with the silence of those who would be democracy’s defenders, makes their success a real possibility.

The question of what is required to restore a strong democracy can be answered by fulfilling four recommendations:

The first is to remove all references to the principles of the Treaty from legislation.

The second is to promote vigorous debate, including satire, about Treaty politics.

The third is to shore up inclusive biculturalism.

The fourth is to replace the current political interpretation of the Treaty with a symbolic meaning only.

New Zealand’s strength is our Westminster style government with no written constitution. We make and remake our constitution as legislation responds to the will of the people.

The Treaty of Waitangi began life as an instrument of peaceful annexation. It met the British agenda for imperial expansion and the Maori agenda for recovery from the catastrophic effects of 40 years of inter-tribal warfare.

It was reinterpreted in the 1870s as a “nullity” to suit the politics of that time and fitted the commonplace practice of discarding treaties when their purpose had been served. That interpretation lasted until the ‘partnership’ one from the 1980s.

From annexer to nullity to partnership, it is now time for a new interpretation. I propose that the Treaty of Waitangi be placed alongside the 1852 Constitution Act as one of two founding symbols of the New Zealand nation.

(The material and ideas in this essay are taken mainly from articles published in scholarly journals between 1996 and 2013.)

Reply: Elizabeth Rata responding to Andrew Geddis on the Treaty partnership concept

THE ROAD TO HE PUAPUA: IS THERE REALLY A TREATY PARTNERSHIP?