Buddy Mikaere: The Treaty is all about a fair go

Waitangi Day ceremony at Mt Drury in Mount Maunganui in 2019. Photo / File

COMMENT:

In a world where our perception of the USA is dominated by political polarisation and a President seemingly intent on ruling the Twitterverse, it is sometimes hard to remember that once upon a time we looked to that country as the leading bastion of democracy.

These days that is the last thing you think of as yet another mass shooting dominates the newsfeeds.

In my infrequent visits to that country, I observed that one of the strengths of the American education system is the focus placed on the teaching of civics: Requiring students to learn about how local state and federal government works.

Americans are big on flag-honouring ceremonies and while it may look like jingo-ism to an outside observer the combination of civics, love of country and patriotic expression is a powerful formula.

When you link that to their fundamental governing documents; the Declaration of Independence and the Constitution, you have a heady combination which should result in the establishment of a strong guiding foundation for taking the nation forward.

I like the clear, concise and unambiguous language in the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness".

Thomas Jefferson drafted that document in 1776.

On February 6, 1840 – 64 years later - we signed our own national document the Treaty of Waitangi.

It may have been because of the circumstances surrounding the Declaration of Independence that none of the thinking that suffused that document found its way into the thinking behind our Treaty and I regret very much that our Treaty has none of the fine sentiments of the Declaration.

That has much to do with its original intent which was not so much to do with nation building but more to assist with the speedy acquisition of Māori land.

The Treaty granted the Crown exclusive right to acquire Māori land and the flood of legislation which followed in the 1860s backed that up.

That all began to change in the 1970s with the rise of the Maori nationalist movement who insisted that rather than being a founding document the Treaty was a fraud.

"Honour the Treaty" became a catch-cry and led by the courageous Northern Māori MP Matiu Rata on the political front and by community leaders such as Dame Whina Cooper - who led a famous land march on Parliament - change became inevitable.

The Labour Government of Norman Kirk introduced the Treaty of Waitangi Act in 1975 leading to the creation of the Waitangi Tribunal – more or less a permanent commission of inquiry – charged with investigating and making recommendations on Treaty claims.

At that time only contemporary claims could be made but that changed under the 1987 Labour Government of David Lange and Maori Affairs Minister Koro Wetere who amended the Act so that claims dating back to 1840 and earlier, could be investigated.

The 1987 Government also introduced into national consciousness Treaty principles.

The principles were developed in order to ensure that our founding document could indeed carry the nationhood role in the same way as say, the Declaration of Independence. The principles set out a series of obligations and objectives that defined the nature of the Crown (Government) and Māori relationship.

It was something that the imprecise nature of the Treaty document language lacked and since 1973 much academic and judicial effort has been expended on making the Treaty and the principles a better fit for this higher purpose.

More importantly, the principles have become incorporated into the legal framework of the country and Treaty references can be found in the Conservation Act, the Local Government Act, the Resource Management Act (1991) and of course 1975's Treaty of Waitangi Act to name a few.

Hon Justice Matthew Palmer described it this way in 2015: The Treaty of Waitangi, and its principles, should be interpreted broadly, generously and practically, in new and changing circumstances as they arise; As an agreement upholding the Crown's legitimacy, in governing New Zealand for the benefit of all New Zealanders, in exchange for the Crown's active protection of the rangatiratanga, or authority of hapu, iwi and Māori generally to use and control their own interests, especially in relation to land, fisheries and te reo Māori and their other tangible and intangible taonga or valued possessions.

The Crown must also ensure that Māori enjoy the rights and privileges of Pākehā New Zealanders.

Since this agreement involves a continuing relationship akin to a partnership between the Crown and Māori, the parties should act reasonably and in good faith towards each other, consulting with each other, compromising where appropriate, and reasonably redressing past breaches of the Treaty.

So, against this background, what does the Treaty mean to me and are we there yet? It seems to me the Treaty is a vehicle in which we are all travelling; the rules of the road are the Treaty principles but we have a collective responsibility to agree on the destination if we are to all arrive together.

I know that for some the Treaty is regarded as an impediment, a source of division, a gravy train, past its use-by date, a joke and similar.

I note with a certain irony that it is not Māori people who are saying these things. The anti-Treaty rhetoric is rising and reminds me of the ruling by Justice James Prendergast who said that: "The Treaty of Waitangi was 'worthless' because it had been signed 'between a civilised nation and a group of savages' who were not capable of signing a treaty. Since the Treaty had not been incorporated into domestic law, it was a 'simple nullity'."

Thank goodness, as demonstrated by the post-1970s development and the completely bipartisan approach taken by every government since, we now have a "living" Treaty enshrined in law and a claims investigation and settlement process that is the envy of every other colonised country in the world.

The last hurdle is the incorporation of Treaty principles into the lives of our communities in a way which adds, not detracts, to our heritage and culture which is the inheritance of us all.

The Treaty is all about a fair go, a concept that most Kiwis are familiar with. So, using this approach, when dealing with Treaty claims, all we are doing is finding out where there wasn't a fair go and doing something about it. Pretty simple stuff really.

Waitangi Day 2020 will mark 180 years since the signing of the Treaty of Waitangi on February 6, 1840.

It should be a day to celebrate, not just a day off work. In recent times in our region we have begun growing a tradition of marking Waitangi Day with a festival that reflects our multi-cultural, multi-ethnic community and that will receive a fillip this year by the incorporation of a citizenship ceremony into the activities for the day. Such a fitting day to welcome a new group of Kiwis.

I'm tending to think that the journey is not yet done but we are definitely getting there.

Buddy Mikaere is a historian, environmentalist, resource consents consultant and Tauranga Moana iwi representative with a wide variety of interests across the Mount Maunganui and Tauranga community. He serves on various council committees.