by I want to set the record straight, as a pākehā lawyer who is passionately committed to upholding the rule of law and who does not have the time actively to learn te reo Māori or study the details of what went wrong in the past.
The rule of law is a multi-faceted concept that includes the principle that government is subject to the law, as too are the rest of us. Lawyers in New Zealand have a statutory obligation to uphold the rule of law.
The rule of law was breached when the Treaty of Waitangi was breached by successive colonial and post-colonial governments.
Why the breaches matter today
The Treaty of Waitangi was breached when Maori economic, cultural and social resources were not protected (Article 2), and when Maori were not accorded basic legal and human rights (Article 3). In the 1840s, the 1850s, escalating in the 1860s, and again in the 1870s, and 1880s, and on and on, as New Zealand became a dominion and then independent, still the breaches continued.
(If you don’t know about the breaches, please go and find out. Ask a librarian for help. Or Google. Or visit the Waitangi Tribunal’s website and download a few reports to read, including about wherever you grew up or where you live now.)
The 1960s still saw new legislation to make it easier to take Māori land – that’s how Māori freehold land suddenly became general land, by compulsion, which even today makes it harder for Māori families to inherit their family homesteads. (Kiwilaw has recently identified legal solutions to that problem.)
Maybe if Articles 2 and 3 had been honoured, Article 1 wouldn’t have become such an issue.
Too bad. It’s too late to turn back now. Article 1 is now an issue.
Article 1 is about sovereignty and/or governance. It’s the basis of the arguments about co-governance and separatism and how decisions are made. It’s the really, truly, seriously scary one – but it doesn’t have to be.
Why it’s not the courts’ fault
Critics, including some politicians, blame the courts and Waitangi Tribunal for being ‘radical’ and creating the Treaty ‘principles’ and stirring things up – from the 1970s and 1980s on.
In recognising the Treaty of Waitangi and Treaty ‘principles’, the courts have not been overstepping. They have been addressing legal wrongs and resolving interpretation issues in the law. That is their job.
They have actually been applying the principles of the ‘common law’ as introduced from England. Not being revolutionary or radical, just being competent jurists.
There are centuries of legal history involving disputes between parliament, kings, and the courts. History has tended to side with the courts.
The Waitangi Tribunal has been doing the job it was given by statute – by Parliament. It is a specialist tribunal which draws on official records and archives as well as oral history and other material evidence, including Māori Land Court records. It does not accept or create nonsense.
Why the Māori version of the Treaty takes priority
Under basic legal principles, the Māori version of the Treaty should be given preference in any issues where there’s a credible and significant difference between the English version and the Māori version – because the Māori version was relied on by the party that didn’t draft the documents. Whether the Crown – the party that drafted the documents – intended that interpretation is not the deciding factor, quite the converse.
The Māori version has a different meaning from the English version. It always has had.
Māori signed something that was different from the English version. That may or may not have been known to the Crown at the time – I haven’t read enough to know what historians have said about that. (That’s not really the issue, although it makes things worse if the Crown did know there was a difference.)
Since then, Māori have asserted their commitment to what they signed. They never forgot. They never stopped reminding the government. They didn’t ignore the problem. They didn’t waive their rights.
Why things have changed since the 1960s
It took until the 1970s and 1980s for these fundamental issues to be acknowledged. (Remember the land march? Whina Cooper? ‘Not one more acre’? Local and central government were still taking Māori land, in the 1960s and 1970s! A golf course instead of returning the wartime airstrip to its Māori owners? It was so obviously, glaringly wrong, and many of us had no idea… unless we were Māori.)
It took until 2014 for the Waitangi Tribunal to confirm the interpretation issues relating to article 1 and longer again to consider what to do about it.
Better late than never.
The Waitangi Tribunal’s recommendations are mostly not binding. They do however inform the conversation.
This is not a new issue. It is not radical. It seems radical because it’s so different from what we were taught at school and what our parents and grandparents believed, unless of course they were Māori.
It seems revolutionary and very scary and threatening. It’s not what we expected to have to deal with, when we grew up in New Zealand and thought everyone had equal rights and opportunities and colonisation had been good for everyone. (Surprise! Colonisation hasn’t been good for everyone. The colonisers may or may not have meant well, and may or may not have had pure intentions. The colonised lost their culture, their resources, their identity, their future. ‘The road to hell is paved with good intentions.’ It’s not enough to have good intentions.)
Today?
Recognising that the Treaty – and even more so Te Tiriti – is a living document, as relevant today as in the 1840s, is legally and constitutionally sound.
If the Treaty had been honoured fully since 1840, what would New Zealand be like today? That’s the real question. That’s what we now bear in mind. We cannot know exactly, but we can be pretty sure Māori would have been in a better position. Trauma has intergenerational effects. (Breaches of faith create trauma. Ask anyone who has been seriously wronged by someone else, even without physical harm.)
If Māori economic, social and cultural resources had been protected and developed by Māori for Māori, if Māori had had equitable access to academic education instead of being shunted towards the trades and army and service industries, if Māori had had equivalent access to finance for economic development…. if…. if….
It’s too late to turn back now. It is, however, time to work together to put something better in place from now on.
Yes, it’s challenging. Yes, there are differences of opinion about what to do about it. No, it’s not simple. No, ‘majority rule’ isn’t an adequate answer. Yes, there are many different ways of doing things that we can discuss and think about and consider, to find what will work for us, now. No, the Māori don’t want to kick us out – this is not Uganda or Fiji or Zimbabwe, and Te Tiriti gives us the right to be here. Yes, it’s embarrassing when we realise we didn’t know and we should have known. No, we can’t go back and undo the past. Yes, we can do something about the present and the future.
No, we can’t all do everything the same way and ‘just be Kiwis’ – because under Te Tiriti that would logically mean doing everything in Māori and the Māori way, and that would be too hard for those of us who don’t have the time to learn Māori and don’t feel comfortable doing things the Māori way. We are better off with some flexibility and the ability to continue mostly to use English and do things our way, as long as others can use Māori and do things the Māori way and we can get along with mutual respect because we aren’t dogmatic idiots.
We can handle it. We can cope with it.
No government – whether coalition or otherwise – has the right to diminish Te Tiriti while claiming to uphold fundamental constitutional principles and the rule of law.
Yes, New Zealand needs this conversation. Not from fear, not from ‘positions’, not from power, but from good faith and mutual respect.
Cheryl Simes – 21 November 2023
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