A Crown without principles

Cabinet is expected to consider, for the first time, a paper on the Treaty Principles Bill put forward by Act’s David Seymour on September 2.

But it’s far from the first time the Crown has tried to rewrite Te Tiriti, as Ngā Toki Whakarururanga explain.

 

Colonial history continues to repeat itself as the Crown attempts to rewrite Te Tiriti o Waitangi to maintain its own power.

The first step in this history was taken when the Crown denied the validity of the authentic Tiriti by replacing it with what Professor Margaret Mutu calls “the text of the English draft of Hobson’s that was never agreed to”.

The continuity from He Whakaputanga o te Rangatiratanga o Nu Tireni to Te Tiriti was eviscerated by Hobson’s May 1840 proclamations of British sovereignty over all of New Zealand. He declared that the Treaty was a treaty of cession and claimed authority over Te Waipounamu by right of “discovery”.

What the Crown, and the coalition of political parties that is now its government, are doing in proposing the Treaty Principles Bill perpetuates that contempt for the pact entered into by their tūpuna and ours.

Over many years, the Crown’s courts and its parliament have failed to honour even Hobson’s draft (the English language Treaty of Waitangi), making the Crown the sole judge of its own obligations, which it predictably reduced to zero.

Incremental movement over time has come only in response to Māori resistance: securing four Māori seats in the colonial parliament in 1867, the establishment of the Waitangi Tribunal in 1975 (and the subsequent expansion in 1985 of its purview back to 1840), the restoration of the name Waitangi Day in 1976 (after it had been insultingly renamed New Zealand Day in 1973), references to the principles of the Treaty, the Treaty of Waitangi and occasionally Te Tiriti o Waitangi in statutes, the courts’ recognition of historic Māori rights and obligations and tikanga Māori, the MACA (Marine and Coastal Area (Takutai Moana) Act 2011 to replace the Foreshore and Seabed Act 2004 (which reversed the Court of Appeal’s findings that traditional title endures in Ngāti Apa) — and so much more. In every instance, it was Māori mobilisation that forced action.

A reluctant Crown has created spaces for Māori within its New Zealand, but without fundamentally changing its colonial institutions and sources of power.

The concept of the “principles” was originally a Māori response to the denial of Te Tiriti itself, appealing to the mana and the wairua of Te Tiriti and the mana motuhake of hapū.

When legislation to establish the Waitangi Tribunal was before parliament in 1974, several Māori MPs referred to “principles” explicitly as a way to bypass the Crown’s refusal to recognise the Treaty itself. Significantly, the Treaty of Waitangi Act 1975 refers to both Te Tiriti and the Treaty, with the Crown’s actions to be judged against “principles” derived from both texts. Apparently, Matiu Rata, the architect of that legislation, drew the reference to the “principles” from Labour’s 1972 manifesto, which in turn drew on the earlier Ratana Party manifesto.

This was a time when few talked in the public domain about Te Tiriti, and well before talk of Māori sovereignty, let alone tino rangatiratanga, became common.

But while the Treaty “principles” were originally a Māori concept that conveyed the mana and wairua of Te Tiriti in place of the Crown’s unilateral seizure of sovereignty, they were soon co-opted by the Crown.

The Crown could live with Treaty “principles” being defined by the Waitangi Tribunal — and even its findings in the Motunui, Kaituna and Manukau Harbour inquiries that there was no cession of sovereignty — because the Tribunal’s powers were limited to recommendations on historical claims. It could be ignored.

Bigger problems came when the government put the “principles of the Treaty” into legislation. The reference in the State-owned Enterprises Act 1986 was intended as a token nod to Māori. The New Zealand Māori Council forced the courts to interpret it. Instead of recognising Te Tiriti and rangatiratanga, the Court of Appeal made up its own set of Treaty principles that had the sovereignty of the Crown at the core.

Over time, the “spirit” of the Treaty became an unequal “partnership”, where the Crown governed and protected Māori rights, as it saw them. Māori were expected to be loyal to the Queen of England/New Zealand and be reasonably cooperative. They would be consulted when the Crown needed more information to make decisions that affected them. The Waitangi Tribunal then adopted and adapted these principles, effectively abandoning its position that Māori never ceded sovereignty.

The Crown, including the courts and the parliament, seized on the “principles” as a device to maintain the status quo and to avoid the realities of Te Tiriti. In the late 1980s, the Labour government asked officials to formally devise a set of “Principles for Crown Action on the Treaty of Waitangi/Te Tiriti o Waitangi”.

These principles cynically co-opted Māori terms, so kāwanatanga meant “government” while rangatiratanga was reduced to “self-management”. The principle of “reasonable co-operation” using good faith, balance and common sense was to result in a “partnership”. “Equality” would be before the Pākeha law and “redress” on terms decided by the kāwanatanga. They bore as little relationship to Te Tiriti as Act’s principles.

Over the years, these various principles — produced by the courts, the Waitangi Tribunal, government agencies, and some academics — have been refined to the point where Te Tiriti is reduced to “four Ps”: partnership, participation, protection, prosperity. These have become embedded in the guidelines for state agencies who can then claim they are complying with the Treaty.

In sum, the “principles of the Treaty” that inform the Crown’s exercise of unitary power today are built on 25 years of manipulation and deceit. They are merely an illusion of honouring the Treaty. Yet even that wholesale watering down of Te Tiriti is not enough for Act today.

Act and New Zealand First are fuelling a racist backlash, competing for who can be the most extreme. Act’s Treaty Principles Bill aims to cement into law the most extreme rewriting of Te Tiriti so far. Act’s three “principles” distort the first three articles of Te Tiriti, and ignore the fourth, in an offensive and garbled text in te reo rangatira.

Act’s English version is not even consistent with Hobson’s draft. There is no mention of Māori; instead, it obliterates tangata whenua from Aotearoa. New Zealand First is competing for the racist vote by promising a law to remove all references to Treaty principles from legislation. That is already underway, with the removal of references to Te Tiriti in its Fast-track Approvals Bill and in other laws that are hostile to mana Māori and rangatiratanga, and kaitiakitanga over te taiao.

This shows the incremental gains made by Māori over the past decades are fragile, and they are being wound back by political opportunists competing for the racist vote.

Some Māori who bought into the Crown’s “principles” to secure some form of redress, where otherwise there was none, now face betrayal. Others have always asserted their rangatiratanga through various forms of protest and resisted the “principles” ploy. Kia Mohio Kia Marama Trust called it out during the 1980s and exposed what Labour was doing. And in 1990, at the 150th commemoration of Te Tiriti at Waitangi, Bishop Whakahuihui Vercoe laid down the wero to the Crown:

“Some of us have come here to remember what our tūpuna said on this ground: that the Treaty was a compact between two peoples. But since the signing of that treaty 150 years ago, I want to remind our partner that you have marginalised us. You have not honoured the Treaty. We have not honoured each other in the promises we made on this sacred ground. Since 1840, the partner that has been marginalised is me — the language of this land is yours, the custom is yours, the media by which we tell the world who we are, are yours.

What I have come here for is to renew the ties that made us a nation in 1840. I don’t want to debate the Treaty. I don’t want to renegotiate the Treaty. I want the Treaty to stand firmly as the unity, the means by which we are made one nation. . . . The Treaty is what we are celebrating. It is what we are trying to establish so that my tino rangatiratanga is the same as your tino rangatiratanga (absolute sovereignty).

And so I have come to Waitangi to cry for the promises that you made and for the expectations that our tūpuna made 150 years ago . . . I want to say to the government, don’t produce principles of the Treaty — the Treaty is already there.”

While extremists seek to rewrite Te Tiriti through the Crown’s Treaty principles, Māori are reasserting the mana, wairua and tapu of Te Tiriti.

Matike Mai brought together multiple forms of endurance and resistance and laid the foundations for a genuine Tiriti relationship of tino rangatiratanga to kāwanatanga. It provides options for ways to make each sphere work in contemporary Aotearoa. No talk of “Treaty principles” there.

Matike Mai’s commitment to constitutional transformation informed the recent first step in the Waitangi Tribunal’s Constitutional Kaupapa inquiry, the urgency hearing on the proposed Treaty Principles Bill and the Treaty clauses review. There has been no engagement with Māori on a draft of the bill, breaching even the Crown’s own self-serving Treaty principles.

Yet again, we have seen the Crown evade accountability by refusing to release information about the process, timeline and content. The Tribunal’s interim report was released to claimants under embargo on August 15. The same day, the Crown finally informed the Tribunal that cabinet will consider a paper on the draft bill from Act’s David Seymour on September 2.

An expedited process of bypassing the cabinet committee suggests they may plan to rush it through faster than people expect, as they have with other legislation. We wait to see whether the Crown continues to show contempt for Te Tiriti, and take advantage of the toothlessness of the Waitangi Tribunal, by introducing the bill to parliament so that the Tribunal no longer has jurisdiction to consider the bill and complete its inquiry.

The Waitangi Tribunal’s interim report recommends that the bill be abandoned, and it will keep a watching brief. National and New Zealand First made it clear at Koroneihana that they will support it to select committee. Will they really pull the plug after that?

History makes it clear that the Crown has no intention of honouring Te Tiriti o Waitangi. To recover lost ground and advance constitutional transformation, Māori need to mobilise collectively to assert the exercise of rangatiratanga and to force the kāwanatanga to honour the mana of Te Tiriti o Waitangi. Now.

  

Ngā Toki Whakarururanga is a party to the Constitutional Kaupapa Inquiry at the Waitangi Tribunal and to the urgency hearings on the proposed Treaty Principles Bill as part of that claim.

E-Tangata, 2024