Waitangi on Waitangi Day, February 6. Photo / RNZ, Peter de Graaf
Waitangi on Waitangi Day, February 6. Photo / RNZ, Peter de Graaf
THREE KEY FACTS
Te Tiriti o Waitangi (the Treaty of Waitangi) is widely accepted as a constitutional document that establishes and guides the relationship between the Crown in New Zealand (embodied by our Government) and Māori.
The three “P’s”, as they are often referred to, are the principles of partnership, participation and protection. These underpin the relationship between the Government and Māori under the Treaty of Waitangi.
The Treaty of Waitangi has two texts. The Māori version is not an exact translation of the English. There has been much debate over the differences – how they came to be and what they mean. Some people argue there are two treaties.
Anaru Eketone is an associate professor in social and community work at the University of Otago and a columnist for the Otago Daily Times.
OPINION
Why should my children have more rights than yours? Because it is their heritage coming to them in a direct line from their ancestors.
What this means is that they may have more rights than some other New Zealanders. Yes, my children’s grandmother was born in England, therefore they have rights to a British passport, rights to travel and rights to consular support and protection, even in New Zealand.
Rights are complex and many-layered. The Act Party claims that rights under the Treaty of Waitangi are racist if they don’t apply to all New Zealanders and the justification they use for this is universal human rights.
New Zealand signed up to the United Nations Universal Declaration of Human Rights (UDHR) in 1948, but I cannot believe that universal human rights is all that they believe in. If these are the only rights they recognise, it would mean that all foreigners would have exactly the same rights in New Zealand as New Zealanders, including the right to vote, the right to stand for Parliament, the right to enter and leave the country without restraint, the right to purchase property and the right to access services such as free hospitals, benefits and pensions.
The civil and political rights that are specific to New Zealand citizens are spelt out by the Bill of Rights Act 1990. It has a lot of crossover with the UDHR, but there are extra rights to some I have just mentioned and they include the right to refuse medical treatment, to not be subjected to experimentation without consent and specific rights related to the justice system.
The fact that there are two overlapping types of rights outlined in these two human rights instruments already shows that more rights exist than in Act’s limited understanding.
A depiction of the signing of the Treaty of Waitangi in 1840.
In New Zealand law, and the British law that it is founded upon, there is also a recognition of customary rights based on traditional and customary use and activities.
In New Zealand, these rights are indigenous rights that are deemed to be in existence unless specifically extinguished by an act of Parliament. This is where the controversy about who owns the seabed and foreshore comes in.
The Crown thought it had passed legislation in the 19th century that had extinguished these hapū and iwi rights. It turned out that they hadn’t and so various Governments have set up frameworks for iwi and hapū to prove that they still exercise those rights. Some people have objected to this and use the right of “access for all” to justify their position. In reality the only argument they are able to muster is based on “I thought we had already taken that property generations ago”.
You may have noticed that I said iwi and hapū rights rather than Māori rights. Those who argue that these rights are racist do so as they claim it gives Māori rights that non-Māori do not have. However, customary title doesn’t give all Māori people rights.
Act leader David Seymour. Photo / Alyse Wright
As a Māori person, I have no customary rights in the South Island where I was born. My only access to customary rights is in the territory of my hapū and iwi. Customary rights come through particular ancestors and it is through that descendant line that they have those customary rights.
There are also rights that other iwi have that my iwi recognises and vice versa, even if they are unknown to Pākehā people. In tikanga Māori and tikanga ā iwi, there are rights and obligations related to activities involving the exercise of rangatiratanga (chieftainship), kaitiakitanga (guardianship) and manaakitanga (hospitality). Some of these rights and obligations would have been evident to those observing the recent tangihanga of Kīngi Tūheitia at Tūrangawaewae Marae.
As a Waikato-Maniapoto person, I defer to the local iwi of the area I live in. They hold mana whenua (territorial rights) and exercise their tino rangatiratanga (sovereignty) as part of their ancestral rights, particularly as the Treaty partner over Article Two issues where I live. Their tikanga and kawa (marae protocol) hold sway and they have the right to expect me to defer to it.
The narrowness of Act’s belief is that Māori can only have the exact same rights that non-Māori hold, and only the rights that Pākehā give us. Most Māori would reject both premises as our rights don’t rest on Pākehā allowing us to have them.
Anaru Eketone.
Who endows us with rights is something for philosophers and theologians to argue.
The American constitution states that rights are endowed by God, the United Nations Declaration implies it is because we are born human, and the Bill of Rights applies to all legal and natural persons. Many Māori would argue we also have rights endowed by our ancestors and that we possess inherent indigenous iwi and hapū rights and obligations, whether Act recognises them or not.
