Principles at stake

The Waitangi Tribunal at work in Wellington in 2007. Photo: NZPA
The Waitangi Tribunal at work in Wellington in 2007. Photo: NZPA
Governments for decades have taken a principles approach to te Tiriti o Waitangi, University of Otago politics professor Janine Hayward tells Tom McKinlay.

If you’re interested in a good quick summary of the principles of te Tiriti o Waitangi, then Prof Janine Hayward has your back.

The University of Otago politics professor wrote the entry on the topic for the online Encyclopedia of New Zealand, - updated it just last year.

Prof Janine Hayward. Photo: ODT
Prof Janine Hayward. Photo: ODT
A little way down through the article, she quotes an opinion that the principles had become ‘‘part of the fabric of New Zealand society, of the way in which New Zealand thought about itself’’.

So, ngā mātāpono o te Tiriti o Waitangi, to use the reo Māori, are a pretty big deal. Which makes what David Seymour and the Act Party are suggesting pretty major.

Major, and yet, by Prof Hayward’s reckoning ideological, disingenuous and a waste of time and resources.

But before a little more on that, a little more on the principles, ngā mātāpono, and how they have evolved.

‘‘I think it is really helpful to acknowledge that it has been the courts and the Waitangi Tribunal that have been doing that work,’’ Prof Hayward says.

‘‘So, way back in 1975 when the government first decided that it would include that phrase in law, it did it deliberately because it had a choice to make about whether it ignored the pressure that Maori were putting on the government to honour the Treaty or whether it went all out and put the Treaty itself into legislation to acknowledge it.

‘‘So, what the government chose to do was use a compromise tool, which is the principles of the Treaty.’’

Notch one up for the wisdom of Solomon.

That phrase, ‘‘principles of the Treaty’’, went into the Treaty of Waitangi Act1975, which established the Waitangi Tribunal.

‘‘Rather than say ‘this is what the government says the principles are’, it directed that work towards two bodies that were very well placed to do that: which is the courts and the Waitangi Tribunal,’’ Prof Hayward explains.

Those two institutions could then determine, case by case, where it was relevant, what that meant.

‘‘It is a very expert thing to do,’’ she notes.

Since then lots of legislation has used the phrase.

Governments haven’t been entirely hands off about the process, and indeed Prof Hayward says they’ve been increasingly specific about how the principles should operate in particular settings.

So, some of that tension endures, between the government, the Crown Treaty partner declaring what it will do, and leaving the question for the courts or the tribunal to decide.

However, a good degree of consensus has been achieved - surviving serial administrations.

‘‘People often refer to the ‘the three Ps’ when talking about treaty principles: partnership, protection, participation,’’ Hayward writes in Te Ara.

There are now a consistent group of Treaty principles to which everyone can allude, she says.

Take, for example, the active duty of the Crown to protect Māori interests. That one was identified by the Court of Appeal back in 1987, as a result of cases coming before both the tribunal and the court, she says.

‘‘Both of them felt in the cases they were looking at that, when it comes to the obligations that the Crown has to Māori, it is not enough for the Crown to do nothing, it is not enough for the Crown to say ‘but we haven’t done anything to harm Māori, so we haven’t done anything wrong’.

‘‘Over and over and over again the tribunal and the courts said the Crown can not treat these issues with benign neglect - it has to act to protect Māori interests where those exist.

‘‘That speaks to things like the Māori Language Act. It can’t just say ‘we stopped schools punishing Māori from speaking te reo Māori, the Crown is not doing anything any more to discourage Māori language, that’s enough’.

‘‘The courts and tribunal have said ‘no, that’s not enough’. What te Tiriti talked about was the act of kāwanatanga, government, actively protecting the guarantees that it made to Māori in Article2 - tino rangatiratanga.’’

That’s a considerable distance from where the Act Party’s proposed Treaty principles Bill looks to be heading.

‘‘What’s happened now, with what Act are proposing, is a really enormous leap in the direction of Parliament, or the government, or particularly the Act Party in this coalition agreement, wanting to say, ‘we are going to say what the Treaty principles are, unilaterally’,’’ Prof Hayward says.

Act NZ leader David Seymour. Photo: NZ Herald
Act NZ leader David Seymour. Photo: NZ Herald

What is important to acknowledge about that, she says, is that there are a lot of things that Parliament and public debate can do well, but there are also some things that they can’t do very well.

Let’s not start deciding how to build bridges by public debate, she suggests.

‘‘It is important to appreciate that the Treaty principles are not a matter of opinion, they are a matter that requires some expertise.’’

It’s what the 1975 Act recognised, and for the almost 50 years since, that expert work has been methodically moving forward, largely unnoticed, creating little division.

Some of the negative reaction to Act’s proposal is that many people regard it as wholely inappropriate for Parliament to be so unilaterally determining what the Treaty principles are, without consultation, without engagement with Māori, without the involvement of some more independent body, she says. Because Parliament’s interest in the principles is apparent.

‘‘My sense is that what Seymour is doing is very ideological, because as a libertarian the idea of Māori having rights as a group, which predate and are independent of the Crown - which they are, frankly, it is not for the Crown to give Māori tino rangatiratanga, they have pre-existing rights that were acknowledged and guaranteed in te Tiriti - that doesn’t sit well with the kind of liberalism that David Seymour espouses.’’

So, does that risk looking a tad supremacist?

‘‘It looks like racism because it is being directed towards Māori as a group and it is ideological because he appears to struggle with understanding that other people see the world differently and are entitled to do so, to organise themselves differently.

‘‘That isn’t what liberalism has to look like, other people’s versions of that actually celebrate difference.’’

As for the detail of what Act is proposing, Prof Hayward says Seymour’s suggestion that Article2 gives tino rangatiratanga to all New Zealanders is bizarre in the extreme.

‘‘That was an extremely odd statement to make,’’ she says.

‘‘He can say what he wants, none of it will suffocate the original language and obligations and promises made to Māori in te Tiriti.

‘‘It is just not going to go away. It is there, as an uncomfortable truth for many of these politicians.’’

The fork in the road that Act is proposing cuts us adrift from the nation’s history, Prof Hayward says.

‘‘What is that journey going to look like if we are going to have to ignore so much of that historical path to make sense of who we are now? It just doesn’t work, you can’t pretend that these things, historically, have not happened, and that they are not significant today.’’

Prof Hayward also questions Seymour’s assertion that his Bill will facilitate debate.

‘‘I think it is disingenuous to say taking something to select committee is a public debate.’’

It is not, she says. People will simply be responding to Act’s unilateral proposition.

‘‘It’s not a debate, and there are so many really important discussions we could be having about te Tiriti, this is not one of them. It is a big distraction.’’


Some of the Treaty principles  identified by the 1987 Lands  Case were:

• The duty to act reasonably and in good faith.

• Active Crown protection of Māori interests.

• The government should make informed decisions.

• The Crown should remedy past grievances.

• The Crown has the right to govern.

Source: Te Ara, Prof Janine Hayward