Proposals to hold a public referendum on the meaning of Te Tiriti o Waitangi “put the pen in the hand of the coloniser to rewrite what the Treaty relationship means,” says Eru Kapa-Kingi. (Photo supplied)

Preying on Pākehā fear and proposing a referendum on Te Tiriti is completely unjust, writes Eru Kapa-Kingi.


Te Tiriti is imbued with the tapu of my tūpuna, their moko on the paper encapsulating their dreams for an intercultural Aotearoa. He tapu Te Tiriti, Te Tiriti is sacred.

Despite the sacredness of Te Tiriti, Act has campaigned on proposing new law to redefine the “Principles of the Treaty”, and putting that proposed law to a public vote through a national referendum.

Tuatahi, what even is a referendum? It is a vote by the general public on a single political decision (for example, the legalise cannabis referendum which was held in 2020). Referendums can either be binding, meaning the majority decision must be implemented into law or policy by the Government which has put forward the question; or non-binding, meaning the Government must consider the result but are not obliged to make any corresponding law. It is unclear what type of referendum Act is proposing. Notwithstanding the type of referendum, it is a process that involves the general public, and is decided on a majority-rules basis, rather than consenus.

It is completely unjust to use a referendum to consider the legitimate rights of an oppressed minority people. This is like two teams playing a game where one team has 10 players and the other has 100, and only the smaller team must give up something precious if they do not win. It’s impossible for the smaller team to win, but they are forced to play, as they have everything to lose. Yet the result of the game has no real affect on the lives of those in the bigger team. Any person observing this game would surely notice the complete lack of fairness. The question would surely arise whether such a game should be played in the first place.

This referendum game also ignores the reality that the smaller team made it possible for the larger team to assemble and turn up in the first place. This nation was not born out of military conquest, it was created through an agreement. Māori have held up their side of Te Tiriti, while Pākehā have largely ignored it and instead use “the Treaty” to prop up the myth that Māori simply gave all of their power to the British.

I understand Te Tiriti as the rangatira document. It was signed and understood by most hapū, which gave the British Crown the right to govern its own subjects, who were welcomed by Māori to make their home in Aotearoa, so long as the Crown respected the political sovereignty of Māori over themselves, their lands and resources, and further provided rights to Māori equal to those provided to Pākehā.

The Treaty, on the other hand, is the coloniser document intended to be the draft for Te Tiriti, written in English. It claims hapū ceded full sovereignty to the British Crown, in exchange for undisturbed possession of land, resources and taonga. Most hapū also did not sight the coloniser document, let alone sign it, and for those that did, te reo Māori was still the dominant language in Māori communities at the time, so their fullest understanding of the agreement was still derived from the rangatira document.

The documents speak past each other, yet, the coloniser document is the mythical basis upon which the Crown has wrongfully asserted dominance over all of Aotearoa and Māori, since and to this day.

The myth persists despite the undisputed facts. Māori far outnumbered Pākehā in 1840, had their own social, political, legal and economic power structures (which cared for Pākehā and to which many Pākehā at that time owed their own survival), and had declared their own sovereignty over Aotearoa to the world only five years prior, through He Whakaputanga o te Rangatiratanga o Nu Tirene, the Declaration of Sovereignty of the United Tribes of New Zealand.

The problem is, however, most people living in Aotearoa (Māori and Pākehā) have not been exposed to this factual context. The erasure of these truths is deliberate, and has allowed the coloniser’s machine to run rampant for the last two centuries, successfully embedding itself as the primary power system on this whenua. We live behind a facade that our system is founded on morals and rightness, when it is founded on whiteness. Its inception lies in imperialist Pākehā supremacy over Māori and the deceitful assertion of colonial power.

Frustratingly, any form of Māori liberation through referral to the truth of Te Tiriti is perceived by some Pākehā as a threat to their privilege and power. This rests on the assumption that the restoration of tino rangatiratanga will equal the degradation of Pākehā life. In other words, that Māori will turn around and treat them how they have treated us for over 180 years. But that is where they are wrong – the Māori social paradigm is not based on a model of scarcity, but one of balance. We co-exist not at the cost of each other, but in a state of social and political equilibrium. This could be the basis of Aotearoa Hou, our new country.

But the Act Party has preyed on Pākehā fear, which is symptomatic of ignorance of the truth behind Te Tiriti and its history. While there’s not alot of detail about what exactly Act is proposing as a referendum question, it appears to focus on revisiting the Treaty principles.

Many Māori academics and leaders would probably broadly agree that the “principles” of the Treaty need to be checked, but for a vastly different reason. The principles, as they have come to be enacted through law, were made up by a Pākehā judge almost 40 years ago. They’ve never met the mark of tino rangatiratanga as retained in Te Tiriti (and neither does co-governance, while we’re at it!). Indeed, the Waitangi Tribunal in its latest Stage 2 report on Te Paparahi o Te Raki echoes this view in noting the opportunity to reconsider the principles in light of its previous findings: tūpuna who signed Te Tiriti in 1840 never ceded sovereignty to the British Crown.

Where Act’s referendum proposal is cunning, from a political perspective, is that it puts the pen in the hand of the coloniser to rewrite what the Treaty relationship means. No matter what the question asks, or how it is framed, it submits the rights of an equal minority partner to the tyranny of the majority.

I don’t buy into the financial cost argument against conducting such a referendum. It’s clearly problematic for Māori to rely on Pākehā prudence to avoid something so fundamentally wrong. That is desperation, not liberation. Any decision must be based on a common understanding of what is tika and pono.

Heoi anō, there is far more substance in the argument to consider the social cost. Putting rights to referendum, as if those rights are an open question, may embolden prejudicial Pākehā to incite racial violence against Māori, leading to many forms of cultural, spiritual and even physical harm (think about how Hana-Rawhiti’s home was invaded by a long-standing Pākehā National supporter – this was an emboldened racist attack). Moreover, it would further entrench Māori distrust in the imposed legal and political system, which would undo progress in Māori and Crown relations to date.

No matter where one draws the line of Crown power — whether you believe it was handed over on the spot in 1840, or acquired incrementally without the basis of sovereignty — that power did not magically drop out of the sky. In the broadest sense, it had its beginnings in a mana-mutual relationship between the British Crown and Māori.

Crown power is the source of all privilege that Pākehā who have made Aotearoa their home still enjoy today. Redefining its beginnings for political purpose  erases any legitimate basis for the nation of Aotearoa New Zealand, and the right of Pākehā to live here. If you take away the foundation, the house will fall.

Despite my kōrero here, I am not worried. The enduring tapu of Te Tiriti cannot be harmed by shallow political baiting. Te Tiriti exists and cannot be made to un-exist.

I would like to see anyone try to step over Te Tiriti and reach for our mana, which we draw from all of the land, skies and seas. We will never allow that to happen. Ka whawhai tonu taku iwi Māori, āke, ake, ake.


Eru Kapa-Kingi is a teaching fellow at the Law School of Waipapa Taumata Rau University of Auckland, with a focus on Te Tiriti, public law and intersections with tikanga Māori. He is also a graduate of Te Panekiretanga o Te Reo and teaches te reo at Te Pīnakitanga ki Tāmaki. He advocates for political change in his role as Vice-President Tāne and list candidate for Te Pāti Māori.

© E-Tangata, 2023

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