Over the past few weeks, a lot of water and not a few lumps of other matter have washed under the bridge that is the Treaty of Waitangi.
One wonders about its foundations and whether it will cope with the increasingly undisciplined political traffic.
A particular sticking point is the"partnership" concept of a deal between two parties in 1840. Another is the relationship between Articles 2 and 3 of the Treaty — the former guaranteeing for Maori"tino rangatiratanga" (chieftainship/sovereignty) over their"lands, dwelling places and taonga". The latter confers the status of British subject with equal"tikanga" (equal ability to continue one’s way of life) in exchange for conceding"kawanatanga" (governance) to Queen Victoria in Article 1.
Whether this conferred an equality of citizen rights and duties between Maori and non-Maori, an idea which informs the democratic view of the Treaty, is debated by some. But more significantly, over and above whatever equal rights might have been conferred by Article 3, stands Article 2: i.e. Maori customary rights.
So far, then, we have three entities: the Crown, Maori and"settler", or non-Maori. The status of these in relation to each other and to the Treaty is not, perhaps, as clear as it might be, especially given the passage of time.
First, the Crown. In 1840, this was Queen Victoria as head of the government of Great Britain. An elected government of New Zealand did not exist.
Second, Maori. The popular concept now is that of Maori as a single entity who signed a treaty as an equal partner with the British Crown. Some scholars, however, see the Maori who signed the document as individual rangatira representing their various hapu.
Third, non-Maori New Zealanders. Here the question gets really knotty. To quote Civis (ODT 27.1.24):"If Act honestly believes that Pakeha settlers were parties (rather than spectators, questioners or advisers) to Te Tiriti, then it needs some education ..."
Out of this historical fog arise at least two significant questions: What is the status of non-Maori New Zealanders in relation to the Treaty? Does it matter whether we see the original Maori assignees as representative of their various hapu or of tangata whenua as a whole?
The Treaty of Waitangi is hailed as our founding document, even our constitution. If non-Maori were mere spectators of the original event, having no interest in it, is that still the case? Is this constitutional document of interest only to the original signatories, the Crown and Maori, and not to the other 80% of the population who elect the government?
Further, contemporary non-Maori have a different relation to the Crown from their forebears. We now have universal suffrage and regular elections, resulting in a more direct popular interest in government than was the case 184 years ago. The Crown itself, though a descendant of that which signed the dotted line, is a different beast.
The point is that the implication behind Civis’ assertion that non-Maori were uninvolved spectators of the Treaty process and that we contemporaries should take that on board has been rendered incoherent by time. We all have an interest.
The second question points to a conundrum that has surfaced principally through the time of the last Labour government — co-governance or co-management. On the face of it, in spite of court rulings like that of 1987 asserting a partnership between two races, governments, through the Waitangi Tribunal and various processes of restitution, have dealt with individual iwi or hapu. However inadequate compared to the original loss of land and resources, iwi have been given resources over which they have control. In other cases (Tuhoe, Waikato etc) co-management structures between iwi and government agencies have been set up.
The broader issue that has arisen appears to have come from the somewhat academic study of indigeneity and, in New Zealand at least, has resulted in the now famous He Pua Pua document. In this it is envisaged that by 2040 Maori will have effectively equal governance of the country — a possible separate Maori chamber and separate Maori government services.
The recent Labour government made a mistake by not clearly distinguishing co-governance from co-management. Iwi–government structures mentioned above have generally been successful and accepted by the general population. The idea Parliament itself might be subject to co-governance is not acceptable to a majority.
This was made quite clear when Willie Jackson, then minister responsible, consulted with iwi on He Pua Pua before moving on to consult the rest of the electorate. What he got from newly energised iwi moved him to drop it like the proverbial
hot potato, perfectly aware that to release the result of his first consultation would blow
his government away.
At Ratana, Chris Hipkins confessed his party had failed to take the wider electorate with it vis-a-vis the Treaty. It is also clear that the extreme antics of Te Pati Maori, on the one hand, and Act on the other are not going to take the wider electorate with them either.
With my Pollyanna hat on, then, I am going to suggest the Maori caucuses of the National and Labour parties explore what they have in common and formulate a process that they and their parties can agree on.
There will be no shortage of other policy areas to distinguish each from the other at the next election, but with that kind of Maori leadership this most corrosive and dangerous division of the nation might eventually be overcome.
■ Dr Harry Love is an honorary fellow in classics at the University of Otago. His great, great, great grandmother on his mother’s side of the family was a close relation of Te Rauparaha, a fact he has kept hidden from any Ngai Tahu acquaintances.
