Te Tiriti should inspire hope, not fear

Expert opinion from Victoria University Wellington - Te Herenga Waka

Opinion: In my view, Aotearoa New Zealand is ready to move beyond the principles of the Treaty of Waitangi as we currently know them. The principles, a legal and policy construct in existence since 1975, are grounded in the myth of the cession of sovereignty. They are also grounded in the misconception that we can’t possibly know what was intended at Waitangi in 1840, but as historians, legal scholars, and the Waitangi Tribunal have repeatedly stated, that just isn’t true.

Perhaps the principles had value at one point. Perhaps they were necessary at a time in our history where most New Zealanders, including most politicians and judges, largely ignored Te Tiriti o Waitangi. However, basing our constitutional structure on a myth is a pretty unsound basis on which to build a country. At best, the principles as we know them have now had their day.

But that does not, should not, and cannot mean the ‘new’ principles proposed by the current Government are the way forward. Those proposals would replace our country’s founding document with one minor party’s political philosophy. In our modern democracy, that party has the right to discuss those political philosophies and convince us to vote for them. But it does not have the right to tell people those philosophies represent what Te Tiriti o Waitangi says, when that just isn’t true.

The challenge for us now is to collectively decide how else we might move forward. We don’t have to just look at Act’s version of the Treaty relationship and say ‘no thanks, Dave’. We also have an opportunity to collectively decide what we actually do want.

So, what might that look like? Well for starters, despite my views on the principles as we have known them to date, I don’t think the idea of a principled approach to te Tiriti is necessarily a problem. A principled approach to understanding the relationship between Māori and the Crown might help us apply Te Tiriti o Waitangi to modern circumstances.

For example, we need to figure out how te Tiriti applies when much of the Māori population now lives away from our traditional rohe. We need to figure out how Treaty rights (such as tino rangatiratanga, which is for Māori to exercise) sit alongside other social and economic rights (such as Māori rights to adequate healthcare, part of which are grounded in Te Tiriti and part of which are grounded in the rights which any disadvantaged group should have). We need to figure out how Māori voices can be heard in Parliament, while also having our own spaces to consider, debate, and decide on difficult issues. Principled approaches to understanding te Tiriti can help us to do that. 

To me, the spirit of te Tiriti is clear—it is a partnership between Māori and the Crown in which the Crown has certain rights of governance (albeit within limits) and in return Māori receive certain guarantees, such as the ongoing ability to exercise tino rangatiratanga over our taonga. Within that shared understanding, we can debate the extent of those rights and duties: that to me is a sign of a healthy democracy, not a sign te Tiriti is broken. We need to get beyond the idea that te Tiriti is a barrier to those discussions, when in fact it can be an enabler, as long as we get the basics right.

We already have a concrete example of what that might look like. In 2014, a group led by Moana Jackson and Professor Margaret Mutu released Matike Mai Aotearoa, a report on what it might look like to develop an inclusive constitution for Aotearoa New Zealand based on Te Tiriti o Waitangi.

The transformational solutions this report proposes are mostly based on a simple idea—that our modern constitutional arrangements should provide one space for Māori to make decisions ourselves (‘the rangatiratanga sphere’), one space where the Crown has authority (‘the kāwanatanga sphere’) and one space in which we come together to make decisions together (‘the relational sphere’).

We can debate the size of each of those spheres—some may think the rangatiratanga sphere should be bigger, some may think the relational sphere should be the centre of our politics, and some may think there are some things the Crown should retain power over. Kei te pai, all good, if handled well that could be a productive conversation and a sign that our democracy is maturing.

But the key difference between a debate centred on Matike Mai and the debate the current Government wants us to have (apart from the former being grounded in actual facts) is that Matike Mai envisages an inclusive future for Aotearoa in which te Tiriti is recognised and everyone benefits, rather than one driven by fear and division.

Upholding Te Tiriti o Waitangi is nothing to be scared of and tino rangatiratanga can be good for everyone. We’ve seen that time and time again, with the Covid response in 2020, the vaccination drive in 2021, and the myriad partnerships between Māori and local communities aimed at protecting our natural environment.

We don’t have to choose between upholding te Tiriti and creating an inclusive, multicultural society— te Tiriti allows us to have both. We need to remember this as politicians and fear-mongers ramp up the rhetoric of division in the coming months. Honouring te Tiriti can be good for all of us and that should inspire hope, not fear.

This is part three of a three-part series by Dr Luke Fitzmaurice-Brown (Te Aupōuri) on the principles of the Treaty of Waitangi. Part one discussed some of the misconceptions around the signing of Te Tiriti, while part two discussed the principles themselves and recent efforts to redefine them. Part three discusses whether we’re ready to move beyond the principles and what that might look like.