The confused place where Seymour and Ardern converge

Analysis: Parliament should legislate only when necessary. When it does, legislation should be developed from high quality, constitutionally sound and legally coherent policy. Deciding that policy requires clarity of thought, knowledge of how the pieces of the New Zealand legal landscape fit together, and some idea of what has happened in the 184 years since (modern) New Zealand came into being.

Legislation that doesn’t follow that rulebook generally doesn’t last the distance. Think of the Foreshore and Seabed Act 2004.

So when Parliament is asked to entertain legislation based on an inherently flawed interpretation of our nations’ laws and history, it is reason to pay attention.

The upcoming legislation promoted by the Act Party to redefine the principles of the Treaty of Waitangi will be one of these occasions. It stems from a fundamental misunderstanding evident in the constitution of the Act Party.

That constitution describes the Treaty of Waitangi as: an agreement which should be viewed as intended to set an honourable course for the future interaction of individual Māori with individual non-Māori.

The same sentiment has arisen across the political spectrum. For example in a 2019 speech by former Prime Minister, Dame Jacinda Ardern, where she referred to a Treaty of Waitangi partnership between Māori and Pākehā New Zealanders.

But te Tiriti is not a compact between individual New Zealanders and Māori – Māori are New Zealanders after all. Te Tiriti is an agreement between the Crown and iwi/hapū Māori.

A failure to acknowledge this fundamental tenet leads to some odd results, and perpetuates the confused state of understanding of who is responsible for what, which we currently have.

In Act’s case, this confusion underpins one of their core election campaign pillars: that New Zealanders do not have equal rights, and that guarantees made to the assembled chiefs and formalised by te Tiriti are really available to everyone.

It appears as though the Act Party sees the development of ideas such as te Tiriti being a partnership as a radical concept introduction to our political and legal landscape, and which must now be reversed.

But what is true radicalism?

Continuing carefully and in good faith with a 40-year-old incremental approach that has allowed Aotearoa to try to turn the page on some difficult history? Or upending it in favour of the unknown to solve a misdiagnosed problem?

A straightforward jurisprudence

Recent history is, actually, remarkably straightforward.

Just prior to the 1975 General Election, the Rowling Labour Government passed legislation establishing the Waitangi Tribunal to make recommendations on claims relating to the practical application of the principles of the Treaty. The word ‘principles’ was not defined in the legislation.

In 1986, the Lange Labour Government passed legislation creating state-owned enterprises. Included in that legislation was the following clause:

Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.

The clause was included because many of the businesses destined to become state-owned enterprises owned significant amounts of land. The transfer of that land into private ownership would have meant it was unlikely to be available for return to Māori through future settlements. Injunctions were sought. Discussions were had between the Crown and iwi leaders. The clause was one of the results.

Parliament again did not define what ‘principles’ meant. Leaving the definition open meant it was left to the courts, beginning in the now famous 1987 Lands case. That jurisprudence now forms part of New Zealand law. As President Cooke explained in that case:

The differences between the texts and the shades of meaning do not matter for the purposes of this case. What matters is the spirit. This approach accords with the oral nature of Māori tradition and culture. It is necessary also because the relatively sophisticated society for whose needs the State-Owned Enterprises Act has been devised could not possibly have been foreseen by those who participated in the making of the 1840 Treaty.

To absolve the Crown of its duty?

So with what spirit should we seek to understand the Treaty Principles Bill? Well, we must first understand the logic from which it was born, and it is at this first step the exercise is utterly futile.

To describe te Tiriti as an agreement that sets an honourable course for interaction not only diminishes the mana with which te Tiriti was signed, but is incongruent in modern day.

This contextualisation presumes that rather than us – in the words of President Cooke – all being of a ‘relatively sophisticated society’ that collectively values freedom, community, justice, respect and responsibility, those with whakapapa Māori need their personal relationships with non-Māori to be underpinned by te Tiriti.

Put simply, this incoherence suggests that my (wahine Māori) interactions with my Māmā (non-Māori) need be managed differently to that with my Pāpā (tāne Māori). It is not hard to see why this is, quite frankly, absurd. I am reminded of the 1877 repugnance of Chief Justice Sir James Prendergast.

Further, I would go as far to say that this kind of interpretation seeks to absolve the Crown of its duty to uphold te Tiriti. When we return te Tiriti to what it is – an agreement between hapū/iwi and the Crown, ratified by the signing of te Tiriti – it makes it very simple to understand the duties between the two parties, akin to a partnership.

Efforts to say te Tiriti is not a partnership have led to a trajectory towards ‘separate rights for two separate peoples’. (This is yet another failure of interpretation caused by its reliance on the Treaty as a compact between Pakehā and Māori rather than the Crown and Māori).

As a result we see an increase in confusion and individuals unnecessarily co-opting the Crown’s guilt. Successive governments over the past 184 years have breached te Tiriti, and these breaches are the responsibility of the Crown to rectify.

The ultimate irony is that even if the Bill itself were to clear the multiple hurdles in its way, the one thing that probably wouldn’t change would be the nature of the Crown-Māori relationship itself. Every hapū and iwi across the motu is entitled to its own unique and enduring relationship with the Crown.

This means that while Parliament can redefine Treaty principles, doing so does not dictate the approach the Crown, iwi Māori and hapū Māori might follow. Treaty principles clauses affect the legislation in which they sit, not government generally.

It is fair to say that the Treaty Principles Bill is a marred solution aimed at a misdiagnosed problem, and relying on an inherently flawed interpretation of te Tiriti. Expensive, divisive and ultimately pointless. The sooner it is out of the way, the better.