The site where the Treaty of Waitangi was signed in 1840 as seen from outside Te Rau Aroha Museum.
It is a curious thing that the further we get from the signing of the Treaty of Waitangi 183 years ago, the more convinced certain people have become about what was in the minds of those who signed it.
But it was because of those differences in interpretation that the concept of the principles of the Treaty was put into legislation.
And as three political parties - National, Act and New Zealand First - prepare to negotiate the shape of the next government, one of the most complex issues facing them is what to do about the Treaty of Waitangi principles.
Rewriting the principles of the Treaty and putting them to a referendum was one of Act’s policy priorities. But it won only 9 per cent of the vote.
When 90 per cent of the votes cast at the election are from parties opposing a referendum, the very act of holding a referendum could overshadow any debate about what the principles should be.
But given that the current interpretation of the Treaty has been a high priority for both Act and New Zealand First, now and in the past, simply doing nothing is unlikely to be an option when the agreements emerge.
All three parties have opposed using the Treaty as a justification for setting up the Māori Health Authority, Te Aka Whai Ora, or for an expansion of co-governance beyond Treaty settlements.
New Zealand First MP Shane Jones has challenged any suggestion that the English version of the Treaty should be disregarded.
“We do want to see balance restored and we want the Māori Party to be reminded that the background to the Treaty is that it’s a bilingual, bicultural document and we have zero truck with the notion that Te Tiriti is a charter of Native sovereignty,” he said this week.
Debate about the Treaty is not going to stop and the new Government is duty-bound to encourage it in a constructive way.
The question is how, through what sort of vehicle, and how far should the debate go?
It is unlikely the three parties would emerge from coalition talks with fully formed changes in approach to New Zealand’s most important constitutional document.
That would almost certainly provoke protest and ensure the Government began on a highly toxic footing.
But in recent weeks Act leader David Seymour has been putting greater emphasis on the importance of having a national conversation about the Treaty than on holding a referendum.
Former Treaty Negotiations Minister and former Attorney-General Christopher Finlayson (National Party) supports a debate about the Treaty principles but he thinks a referendum would be dangerous.
“A referendum on such a potentially contentious topic could get out of control and bring to the surface elements that would shock New Zealanders and appal them.”
But he said there was now a good opportunity for a sensible debate about what was meant by Treaty principles, and Parliament should be involved in that discussion.
“We’ve had the development of Treaty principles over the years but no one has actually had a real hard look at them to determine ‘what is a true Treaty principle?’”
The vehicle for any such discussion or review could take a variety of forms including a commission of inquiry, a review, or a bill for a proposed new law. A bill has been the previously favoured vehicle.
When Winston Peters’ New Zealand First Party signed a confidence and supply agreement with Labour in late 2005, one of its conditions was to get Labour’s limited support for a member’s bill deleting references to the principles of the Treaty from all legislation.
Unfortunately, Parliament appears to have purged from its database all debate and submissions on that bill in 2006 in the name of Doug Woolerton (its website says, ominously in red, Terminated, not available, record is from previous database.)
As well, it has deleted debate on a similar bill a few months earlier in the name of Act leader Rodney Hide.
It has, however, retained the record of debate on an even earlier bill in Winston Peters’ name shortly before the 2005 election to delete references to the principles of the Treaty from law.
That bill was defeated by 63 votes to 51. National, Act and United Future supported Peters’ bill and it was opposed by Labour, the Greens, Progressives and the Māori Party.
There was a to-and-fro between Peters and Labour about what the principles actually were, with him saying no one knew and Labour setting out the five most relevant principles (the first three reflecting the articles of the Treaty), as had been articulated by Margaret Wilson in April 2002 when she was Attorney-General.
“The first principle is the principle of Government, meaning that the Government has the right to govern and make laws,” Associate Treaty Negotiations Minister Mita Ririnui told Parliament that night.
“The principle of self-management means that iwi have the right to organise as iwi under the law and to control the resources they own.
“The principle of equality means that all New Zealanders are equal under the law.
“The principle of reasonable co-operation means that both the Government and iwi are obliged to accord each other reasonable co-operation on major issues of common concern.
“Finally, the principle of redress means that the Government is responsible for providing effective processes for the resolution of grievances, in the expectation that reconciliation can occur.”
While Ririnui did not include the principle of “partnership” in his description, the Treaty has frequently been described as a partnership by the Waitangi Tribunal, the courts and successive governments and is considered the overarching principle from which others are derived.
The principle of partnership has been largely uncontested by successive National and Labour Governments - Prime Minister in waiting Christopher Luxon describes it as such - although Act and New Zealand First reject the principle of partnership.
It is often said the Court of Appeal fashioned the concept of the Treaty as a partnership in its judgments on the 1987 Lands Case.
But the Treaty of Waitangi Act of 1975 referred to both the principles of the Treaty and to the Treaty being a partnership.
The act set up the Waitangi Tribunal as a permanent commission of inquiry to hear claims into contemporary breaches of the Treaty, and because of the differences between the two versions of the Treaty, to determine its effect and meaning and whether matters were inconsistent with “the principles of the Treaty”.
The act also says: “In considering the suitability of persons for appointment to the tribunal, the Minister of Māori Affairs shall have regard to the partnership between the two parties to the Treaty.”
The tribunal over the years has put greater emphasis on the two parties being of equal status but the courts and the Government have not. That has varied depending on the circumstances of the case or issue before it.
Finlayson’s view is that with the 50th anniversary of the Treaty of Waitangi Act 1975 approaching, it would be timely to review the act and that the issues around the principles and partnership that will be vexing the coalition talks could form part of a review of the act - with public submissions.
He thought it would be important for it to be bipartisan and to include people from across the political spectrum, such as outgoing Labour Foreign Minister and former Māori Development Minister Nanaia Mahuta.
“I think there is a very good justification for having a bit of a discussion about what do we mean by Treaty principles, what do we mean by giving effect to the Treaty.
“I have no problem with that kind of discussion provided it is sober and positive and avoids hyperbole.”
He favours specific references in law about the Treaty instead of broad references such as clauses saying the relevant statute has to give effect to the principles of the Treaty.
“I think the better way of legislating is [to say]: ‘In order to give effect to the principles of the Treaty, decision-makers under this statute will do X, Y and Z’ and it is spelled out.”
Finlayson said a review of the Treaty of Waitangi Act could also be an opportunity to flesh out what partnership means.
“It means equal justice for all, it means respect for the special position of Māori in society and recognition of rangatiratanga, which is part of Article Two, and importantly - and this is where I think so many problems have occurred in the past - respect for Māori property rights.
“I hardly think Act would take issue with that because they are a property rights party.”
So does the Treaty of Waitangi give Māori rights that other New Zealanders don’t have?
Finlayson: “It recognises the special position of the indigenous people in our land … Article Two would suggest their special position would have to be recognised.
“We are a multicultural society but the very special position of the indigenous people in this country does give them certain rights and so the clarion call of ‘one law for all’ is fine on one level but it doesn’t apply on others.”
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