That Treaty predates the emergence of our parliamentary democracy and the even later emergence of full adult suffrage as women gained the vote in 1893.
The Treaty of Waitangi – te Tiriti o Waitangi – needs to be understood in the context of the age of revolution and an emerging global, imperial era in which European empires negotiated many treaties with each other and with indigenous peoples.
More specifically, the Treaty needs to be read in both its immediate New Zealand context – British resident James Busby’s Declaration of Independence/He Whakaputanga – and British constitutional history. The 1840 Treaty is essentially a conservative affirmation of government power, property rights, and subjects’ rights or liberties.
The Treaty reflects Edmund Burke’s customary social order more than Thomas Paine’s Rights of Man. It points to older, English notions of customary, chiefly privileges embedded in a graduated social hierarchy of mutual obligations – noblesse oblige.
The Treaty cannot therefore be squashed into a later democratic paradigm of individuals with “equal citizenship” – as the Act Party’s Bill might prefer it was.
The original Māori text of the Treaty grants to the Crown government over Māori territories (whenua) while hapū exercise ongoing customary authority (rangatiratanga) over whenua, kainga, and taonga (lands, village properties and other treasured resources).
Waitangi Tribunal and court rulings since the 1980s have affirmed that the Treaty mandates both government by the Crown and ongoing rangatiratanga of chiefs/tribes. Any differences between the two language texts are largely immaterial for this essential arrangement.
The Waitangi Tribunal has recently (in Northland) imagined te Tiriti to establish separate spheres of chiefs and governor. This anachronistic judgment reflects much later bicultural conceptions of our foundation document.
It does not fit the 1840s context of a single Crown authority and many nonaligned tribal groupings just emerging from two decades of devastating musket warfare and entangled at various points with European traders and, quite differently, with new Christian values of peace and civility.
The idea that the Treaty reflects a “partnership between the Crown and Māori” or, even, in Justice Robin Cooke’s language, between the Pākehā and Māori “races”, is an innovative late 1980s conceptualisation.
It also reflects the case before the Court of Appeal in 1987, in which the court could adjudicate only because Parliament had included reference to “principles of the Treaty”.
In this scenario, the Court of Appeal’s characterisation of the Treaty as a “partnership” in which Crown and Māori should act towards each other reasonably and in good faith was both helpful and necessary. It saved millions of Crown land and forest assets for future Treaty settlement redress.
The historical Treaty arose in a completely different context from the present, but it still undergirds our constitutional arrangements. A settler constitution was granted by the British Crown in 1852. A settler Parliament evolved quickly and by 1867 had quite remarkably incorporated four Māori seats.
Treaty principles help to apply the essential Treaty compact in 2024, as they did in 1987.
But Treaty principles need to remain tied to the historical treaty. Act’s Bill affirms the Crown’s historic and present-day authority but at the expense of placing hapū authority into the straitjacket of rights negotiated through recent Treaty settlements.
Treaty settlements have done much to re-establish tribal collective identities, and they provide for various restored relationships with tribal territories – often as co-governance arrangements over natural resources: rivers, maunga, and Department of Conservation estate, for example.
But these Treaty settlement-negotiated rights do not, or should not, exhaust the ongoing Treaty-based rights and legitimate authority of Māori hapū/iwi.
This is the critical juncture of the present debate.
Article two rights are primarily collective rights of tribes with respect to their historic, ancestral homelands and their significant natural landscapes and other taonga.
These are not therefore rights possessed by individual Māori citizens.
They are rights enjoyed only in so far as individual Māori persons are members of historic tribal groupings exercising customary interests. The Marine and Coastal Area Act fits into this picture, for example, as do the customary fisheries regulations.
Article two rights still make sense in 2024. But these are not special rights of citizenship. The general law applies to all citizens equally, regardless of race or ethnicity: road rules, tax law, criminal law (which, however, can reflect different modes of resolution).
Viewed charitably, Act’s Bill expresses a genuine goal to reinforce a liberal-democratic citizenship, which is covered by Article three of the historic Treaty. Unfortunately, this does not adequately take account of Treaty rights lodged in hapū/iwi.
Democracy itself, in terms of one-person, one-vote citizenship is a Johnny-come-lately on the global stage – only a couple of centuries old at most.
Democracy is the best way to co-ordinate a cosmopolitan, multi-ethnic society, but it should reflect local agreements and histories.
The British Crown, now indigenised as the New Zealand Crown or Te Kāwanatanga, though retaining the British monarchy as head of state, has ongoing obligations to the indigenous peoples on which its authority is based.
Te Kāwanatanga cannot jettison the 1840 Treaty in the name of a majoritarian democracy that emerged only later, built on the foundation of the Treaty compact.
Edmund Burke’s 1790 conservative politics (somewhat ironically) sum up the argument here: “Society is indeed a contract … it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born”.
