Geoffrey Palmer: Time for a pause to reflect on Treaty politics

The politics of the Treaty of Waitangi has become a battlefield upon which people have become increasingly reluctant to tread.

Political debates on the Treaty, and what the law ought to be, appear to have become unmanageable. Meanwhile, Treaty jurisprudence continues to grow larger and more complex.

We cannot pretend the Treaty does not exist, ignore it and remove all traces of it from the New Zealand statute book. Not even the most muscular solutions offered in recent times go so far. Neither can we rewrite our own history.

But what we should do now in policy terms is another issue. While we cannot go back, there is no widespread will to go forward either. We are stuck in a place from which neither advance nor retreat is readily available.

This may be no bad thing, looked at in the larger view. There has always been an ebb and flow in the attitudes towards the Treaty in New Zealand.

The great modern advances for the Treaty began in 1975 with the establishment of the Waitangi Tribunal. A decade later, its jurisdiction was widened to deal with claims back to 1840.

References to the Treaty in legislation began to be made, followed by the state-owned enterprises case of 1987, where the Treaty began to be enforced in the courts.

Then came direct negotiations with the Crown concerning Treaty grievances and the Maori Fisheries settlements. Policies began devolving responsibility in the social areas to Maori organisations and introducing measures to protect Te Reo Maori.

These were huge advances in protecting the interests of Maori under the Treaty. All this happened under first-past-the-post parliaments. There was a significant measure of accord among the two main political parties of those days.

A lot was achieved from 1985 to 1996, most of it controversial. But in 2006 the level of controversy is so high that it seems further steps are at an end, at least for the time being.

The implicit bipartisan approach that once characterised these issues has been shattered. It was inevitable this would occur in a democracy, especially an MMP democracy with all main viewpoints represented in the political marketplace.

The legal doctrine of customary rights that so consumed New Zealand in the foreshore and seabed saga is not, strictly speaking, part of the Treaty debate at all. Those legal rights derive not from the Treaty but from New Zealand common law. But the debate did nothing to improve the atmosphere on these questions.

We are in a better space now than during the 1980s.

Maori are taking advantage of the opportunities that have become available to them. Policies have added to the capacity of Maori to take positive measures in health, education and commercial development.

So the issue becomes, given where we are, what is to be done?

Once the historical grievances are out of the way and there has been a period of consultation and reflection, New Zealand will be in a better position to decide upon the next steps we need to take on the Treaty.

After a pause, we will be able to assess how the resources in health and education, and from settlement assets and the policies of devolution have worked in practice.

Treaty issues do move in cycles. Further change will come but its time is not now. The immediate way forward lies in the development of ideas and policy options outside the political and government environment.

When a sufficient body of work has been done and some serious debate has been conducted about it, new approaches may arise.

* Sir Geoffrey Palmer is President of the Law Commission.