How the Treaty strengthens democracy and provides a check on unbridled power: Dominic O’Sullivan

OPINION

The Act Party’s election promise of a referendum to redefine and enshrine the “principles” of the Treaty of Waitangi is likely to dominate debate at this year’s Rātana and Waitangi Day events.

ACT’s coalition agreement with the National Party commits the Government to supporting a Treaty Principles Bill for select committee consideration. The bill may not make it into law, but the idea is raising considerable alarm.

Leaked draft advice to Cabinet from the Ministry of Justice says the principles should be defined in legislation because “their importance requires there be certainty and clarity about their meaning”.

The advice also says Act’s proposal will:

“Change the nature of the principles from reflecting a relationship akin to a partnership between the Crown and Māori to reflecting the relationship the Crown has with all citizens of New Zealand. This is not supported by either the spirit of the Treaty or the text of the Treaty.”

Setting aside arguments that the notion of “partnership” diminishes self-determination, the 10,000 people attending a meeting last weekend called by King Tūheitia were motivated by the prospect of the Treaty being diminished.

More than 10,000 were estimated to have travelled to Ngāruawāhia on Saturday for the hui. Photo / Adam Pearse

Do we need Treaty principles?

The Treaty principles were developed and elaborated by parliaments, courts and the Waitangi Tribunal over more than 50 years to guide policy implementation and mediate tensions between the Māori and English texts of the document.

The Māori text, which more than 500 rangatira (chiefs) signed, conferred the right to establish government on the British Crown. The English text conferred absolute sovereignty; 39 rangatira signed this text after having it explained in Māori, a language that has no concept of sovereignty as a political and legal authority to be given away.

Because the English text wasn’t widely signed, there is a view that it holds no influential standing, and that perhaps there isn’t a tension to mediate. Former chief justice Sian Elias has said “it can’t be disputed that the Treaty is actually the Māori text”.

On Saturday, Tūheitia said: “There’s no principles, the Treaty is written, that’s it.” This view is supported by arguments that the principles are reductionist and take attention away from the substance of Te Tiriti’s articles: the Crown may establish government; Māori may retain authority over their own affairs and enjoy citizenship of the state in ways that reflect equal tikanga (cultural values).

Democratic or undemocratic?

The Act Party says this is undemocratic because it gives Māori a privileged voice in public decision-making. Of the previous government, Act has said:

“Labour is trying to make New Zealand an unequal society on purpose. It believes there are two types of New Zealanders. Tangata Whenua, who are here by right, and Tangata Tiriti, who are lucky to be here.”

Liberal democracy was not the form of government Britain established in 1840. There’s even an argument that state government doesn’t concern Māori. The Crown exercises government only over “its people” – settlers and their descendants. Māori political authority is found in tino rangatiratanga and through shared decision-making on matters of common interest.

Tino rangatiratanga has been defined as “the exercise of ultimate and paramount power and authority”. In practice, like all power, this is relative and relational to the power of others, and constrained by circumstances beyond human control.

But the power of others has to be fair and reasonable, and rangatiratanga requires freedom from arbitrary interference by the state. That way, authority and responsibility may be exercised, and independence upheld, in relation to Māori people’s own affairs and resources.

A group of Blenheim rangatahi urging the government to honour the Treaty marched through Blenheim's CBD on Sunday. Photo: LDR / Supplied

Assertions of rangatiratanga

Social integration – especially through intermarriage, economic interdependence and economies of scale – makes a rigid “them and us” binary an unlikely path to a better life for anybody.

However, rangatiratanga might be found in Tūheitia’s advice about the best form of protest against rewriting the Treaty principles to diminish the Treaty itself:

“Be who we are, live our values, speak our reo (language), care for our mokopuna (children), our awa (rivers), our maunga (mountains), just be Māori. Māori all day, every day.”

As the Government introduces measures to reduce the use of te reo Māori in public life, repeal child care and protection legislation that promotes Māori leadership and responsibility, and repeal water management legislation that ensures Māori participation, Tuheitia’s words are all assertions of rangatiratanga.

Those government policies sit alongside the proposed Treaty Principles Bill to diminish Māori opportunities to be Māori in public life. For the Act Party, this is necessary to protect democratic equality.

In effect, the proposed bill says that to be equal, Māori people can’t contribute to public decisions with reference to their own culture. As anthropologist Anne Salmond has written, this means the state cannot admit there are “reasonable people who reason differently”.

Liberal democracy and freedom

Equality through sameness is a false equality that liberal democracy is well-equipped to contest. Liberal democracy did not emerge to suppress difference. It is concerned with much more than counting votes to see who wins on election day.

Liberal democracy is a political system intended to manage fair and reasonable differences in an orderly way. This means it doesn’t concentrate power in one place. It’s not a select few exercising sovereignty as the absolute and indivisible power to tell everybody else what to do.

This is because one of its ultimate purposes is to protect people’s freedom – the freedom to be Māori as much as the freedom to be Pākehā. If we want it to, democracy may help all and not just some of us to protect our freedom through our different ways of reasoning.

Freedom is protected by checks and balances on power. Parliament checks the powers of government. Citizens, including Māori citizens with equality of tikanga, check the powers of Parliament.

One of the ways this happens is through the distribution of power from the centre – to local governments, school boards and non-governmental providers of public services. This includes Māori health providers whose work was intended to be supported by the Māori Health Authority, which the Government also intends to disestablish.

The rights of hapu (kinship groups), as the political communities whose representatives signed te Tiriti, mean that rangatiratanga, too, checks and balances the concentration of power in the hands of a few.

Checking and balancing the powers of government requires the contribution of all and not just some citizens. When they do so in their own ways, and according to their own modes of reasoning, citizens contribute to democratic contest – not as a divisive activity, but to protect the common good from the accumulation of power for some people’s use in the domination of others.

Te Tiriti supports this democratic process.