Against the "Treaty principles"

This essay was originally published at The Spinoff Atea.

I suspect New Zealand is the only country where governments adhere to our founding document’s “principles” and not its text. Americans love their constitutional texts. “Life, Liberty and the Pursuit of Happiness”. South Africans are rightly proud of their freedom constitution as well. “South Africa belongs to all who live in it, united in our diversity”. But in New Zealand keen bureaucrats and politicians eschew the Treaty of Waitangi’s words opting for court-ordered principles like “partnership”, usually meaning we’ll compromise on a minor point in the decision we were always going to make anyway, and “active protection”, usually meaning we’ll consult and make the decision we were always going to make anyway. Article II’s “tino rangatiratanga” and “kāwanatanga” are, quite literally, a foreign language.

Is this too harsh? If anything I think it’s a little too generous. Even the most well-meaning politicians misunderstand what the Treaty is about. “At the heart of Te Tiriti,” Jacinda Ardern wrote at the last election, “are the core values of kotahitanga, manaakitanga, whaakawhanaungatanga, and kaitiakitanga”. I adore the sentiment in this, but I want to reach out from the page and preach. The Treaty isn’t a manifesto for kindness. It’s a constitution, and it does what constitutions do: distributes power. In the Māori language version’s second article the rangatira who sign reaffirm “tino rangatiratanga” for iwi and hapū, retaining the mana to govern the country. In the same article those rangatira use their political powers to carve out a small space, “kāwanatanga”, for the Crown to govern its own subjects.

But the trouble with the Treaty principles, or even vague winks at core values, is it treats this relationship in reverse. Tino rangatiratanga for the Crown. Subordinate power for iwi and hapū. In the Lands case in 1987, the landmark ruling confirming the shape and content of the Treaty principles, Lord Cooke confirms the Crown owes Māori certain obligations and in return Māori undertake “a duty of loyalty to the Queen, full acceptance of her Government through her responsible Ministers, and reasonable co-operation”. But this is the bargain made in the Treaty’s English language version (Māori exchange their “sovereignty” for certain protections) when the rangatira who put their mark to the Treaty did so in the Māori language text.

It’s like signing a contract and your boss holds you to a Google translate version.

It’s no wonder that only a decade before the landmark case activists were condemning the Treaty as a “fraud”. For almost the country’s entire modern life the Treaty was just a good excuse. In the 1860s settler politicians were careful to ensure even their very worst acts, from the legislation enabling land confiscation to the statute suspending habeas corpus, were framed as simply “giving better effect” to the Treaty. Historian Keith Sorrenson notes even the preamble to the Native Land Act 1862, the statute abolishing the Crown’s own Treaty right to pre-emption, claimed its purpose wasn’t to undermine the Treaty but paradoxically, to ensure its better effect.

I think this is what Hone Harawira calls “white man bullshit”.

Against this history the Treaty principles aren’t so bad. Progress, even, and only the worst ideologue would argue otherwise. The principles were responsible for strengthening Waikato-Tainui’s hand in its Treaty settlement negotiations in the 1990s after the Court Appeal found coal rights ought to be treated like land rights. They were also at work in 1990 in the fisheries case, in 1994 in the broadcasting assets case, and in more cases through the late 90s and early 2000s. The principles set the script for the Treaty relationship in the 90s confirming it largely as one of resource allocation. The government would propose a reform, and Māori would negotiate some kind of share.

Deal or no deal for colonisers.

But what’s so astonishing about this consensus is how spectacularly brief it was. In its Ngāti Apa decision in 2003 the Court of Appeal found the Māori Land Court had jurisdiction to determine whether areas of the foreshore and seabed were Māori customary land or not. The decision itself didn’t necessarily turn on the Treaty, instead the court was examining the common law concept of customary title, but it put at risk the government’s emerging approach to Māori and their land and resources. Under the Court of Appeal’s decision whether iwi or hapū held customary title would turn on fact and law and not on political circumstance, as it did in the negotiations for fishing quota and broadcast assets.

For many Pākehā it was their “we shall fight on the beaches” moment. One year after the Court of Appeal’s decision the Labour government took the foreshore and seabed into Crown ownership. Well, except for the parts already in private ownership. Farmers and overseas billionaires were left with their choice parcels of beach and seafront. This is the one constant from the Native Land Act to the Foreshore and Seabed Act. Governments quite like extinguishing Māori property rights. It’s further confirmation, if any were needed, that the Treaty principles are mostly a matter of convenience. The raupatu’s architect, finance minister Michael Cullen, certainly wasn’t bothering himself with ideas of “partnership” or “active protection”.

Post-raupatu the fifth Labour government could never quite recover and restore the détente the Treaty principles were responsible for. Activists hit the streets again and the party lost five of its seven Māori seats in 2008. Tribal leaders were wary of engaging with government as well, even for the purposes of Treaty settlements. Under Helen Clark and Michael Cullen the only big Treaty settlement to make it through was the “Treelords” deal. The other successful settlements were mostly mid-level. It took a National government to kick the settlement process back into gear, and to restore trust between iwi leaders the Crown. It’s a little counterintuitive that the Tories do better with iwi leaders, but the reasons are simple enough.

National are probably just better at business.

In the trade unions, where most of Labour’s best negotiators pick up their craft, your first instinct at an impasse is to escalate. Push. Strike. Or in this case legislate. But across the table, at the bosses’ end where National pick their best, the first instinct is usually to adapt. Co-opt. Screw down. This is how the Treaty principles tend to work. Invite Māori to the negotiating table. Co-opt. Screw down. But Labour governments never quite got the hang of it. In the mid to late 20th century Labour’s preference for working with Māori was through their own Māori caucus, equating their electoral mandate as the mana to act in things Māori. But the principles in the 80s and settlements in the 90s made that approach increasingly untenable. Māori could and were asserting institutional force through their post-settlement rūnanga and constitutional force through the Treaty principles.

This is where National governments were quick to adapt to the principles and post-settlement, establishing strategic accords with groups like the Iwi Leaders Forum. Former prime minister Bill English went as far as describing that relationship as “the most efficient, focused, and accountable process I’ve been part of in government in [my] whole 27 years, and it gives me great optimism”. High praise. And it typifies National’s approach. From the 1950s through 80s the Tories, lacking Labour’s electoral mandate from Māori, would work with Māori (in the few cases that they actually did) through their representative institutions. The Māori Council, the Māori Women’s Welfare League, and select “district” leaders. Most Māori would describe this as a rangatira to rangatira relationship. John Key called it pragmatic.

That description reinforces the best part of the Treaty principles, they work in the system as is, but it also reinforces the worst part. They’re a matter of convenience. In the Lands case it was Lord Cooke’s view that the courts should fashion the principles out of the “spirit” of the Treaty and not its strict text. But that’s like trying to build a house out of thoughts and prayers. It’s not enough. And more and more Māori are beginning to call it out. At Ihumātao the kaitiaki are repurposing the Crown’s own arguments against it: that some iwi with whakapapa to the land already have their settlements isn’t an excuse to do nothing; instead it’s a confirmation that settlements are insufficient.

SOUL itself is an exercise in rangatiratanga, as per the Treaty’s words, and not partnership, as per its principles. The movement on the land is taking Article II enacting it. Of course the Crown’s response to that is perfunctory. Prime Minister Jacinda Ardern, refusing to rule in or rule out purchasing the land, says she’s “mindful” of the government’s “obligations” including “around the Treaty of Waitangi”. It’s the answer you give when you don’t really want to give one. But the government, or rather the Crown, cannot ignore the signs. The Ngāpuhi Treaty settlements is almost at a dead end, its iwi members refusing to contort their hapū into the large natural groupings policy. Whakatōhea is split too, half the iwi calling for a historical report knowing that taking a seat at the negotiating table without one is a like taking a spoon to a shootout.

But the defining issue, I think, when historians re-examine the period is the child welfare agency. The Crown’s cruelty is never more manifest than when Oranga Tamariki rips Māori babies from their mothers. The act is ruinous, and it exposes the Treaty principles as empty in the lives of the thousands of Māori who were taken over the decades. The moral imperative is enough to force the Crown to rethink its structures and policies, but what’s significant is how iwi and hapū are responding. As one example Ngāti Kahungungu are allocating resources and developing the infrastructure they need to do Oranga Tamariki’s job themselves. This isn’t partnership. Like at Ihumātao, it’s rangatiratanga.

This functions as a general reminder and, in this case, a particular one: the women were right. In the 1990s activists and MPs like Annette Sykes and Mana Motuhake leader Sandra Lee were vocal critics of Treaty principles and its attendant Treaty settlements. Settlements were, said rangatira like Lee, insufficient. Worse, they could risk letting the Crown off the hook. Ihumātao proves the insufficiency criticism right. And two decades later another generation of activist women aren’t letting the Crown off the hook. If someone rewrites this polemic in 2029 they should open it with “Pania Newton was right”.