What if the intent of the Treaty was neither a partnership, nor that Māori cede sovereignty?

Professor Dominic O’Sullivan believes Te Tiriti creates a third possibility — a commonwealth, where government belongs to everybody because it is everybody.

 

Te Pāti Māori proposes removing the British monarch as the head of state so that a partnership can be realised. The ACT Party’s alternative argument is that partnership is among a body of Treaty principles that give Māori people a political advantage over others.

But neither partnership nor a homogeneous “one people” meets the possibilities for the liberal democratic citizenship that may be read into Te Tiriti.

The first article of Te Tiriti said that the British Crown could establish a government. But this isn’t the same as the right to be the government.

In 1840, government was the Queen’s job. Then, as the Crown allowed liberal democracy to develop, it made government the job of “the people”. Surely, Māori are the people as much as anybody else?

Liberal democracy can’t support the idea that government has an ethnicity of its own — a Pākehā ethnicity, that excludes Māori people and ways of thinking. It doesn’t support the idea that the Crown (or government) is only for “them”.

Yet the partnership discourse does exactly that. It puts Māori people and the Crown into an oppositional binary of “them” versus “us”.

If government really is only for “them”, then we are ignoring Te Tiriti’s third article. Article 3 granted Māori the rights and privileges of British subjects. It was a promise of personal equality to all Māori people, which means being allowed to participate in public affairs with equal tikanga (cultural practices and proper conduct). In modern human rights discourse, equal tikanga is the right to culture, which is not a special Māori right or privilege but a right that belongs to everybody in the world.

As Justice Williams has put it:

Fundamentally, there is a need for a mindset shift away from the pervasive assumption that the Crown is Pākehā, English-speaking and distinct from Māori rather than representative of them. Increasingly, in the 21st century, the Crown is also Māori. If the nation is to move forward, this reality must be grasped.

I argue that equality would be enhanced by thinking about Te Tiriti as a foundation on which to establish a commonwealth.

Te Tiriti affirmed hapū as distinctive political communities. It created a new space — kāwanatanga (government) — which Māori and non-Māori people were to share through the equal tikanga that the agreement promised.

The Crown is therefore neither adversary nor partner because it’s not the repository of Pākehā political authority alone. The state belongs to everybody because it is everybody.

Hapū and other Māori entities exercise rangatiratanga, and kāwanatanga exercises the powers and responsibilities of government, with and through the authority of Māori and non-Māori citizens alike. Tino rangatiratanga is inherent — it’s not a gift from the government that it can reclaim or constrain as it wishes.

As shareholders in government authority, Māori citizens are entitled to expect that its institutions work for them as well as they work for anybody else, and culture is a constituent of such equality.

Yet the ACT Party seems to be saying that we can’t have cultural equality in a liberal democracy, nor can we have Māori people looking after their own affairs.

The Treaty principles

As the Principles of the Treaty of Waitangi Bill goes through a parliamentary select committee hearing, with a record number of public submissions, it’s worth thinking about whether Te Tiriti o Waitangi really does undermine liberal democracy as the bill’s proponents say.

The Treaty principles have been developed by the courts and the Waitangi Tribunal over the last 50 years as interpretive guides to policy implementation.

The principles include partnership, reciprocity, mutual benefit, active protection, and redress. They are sharply critiqued from the perspective that they overshadow the substance of Te Tiriti’s articles and the promises they contain.

From other perspectives, conceptualising Te Tiriti as a partnership between Māori and the British Crown, or between the Māori and Pākehā races, creates an indispensable path to justice.

For still others, partnership weakens Māori political authority by conflating the state with a Pākehā political community, which by its size and power will inevitably dominate as the senior partner.

The ACT Party’s argument is different again. It maintains that these Treaty principles should be re-defined to ensure that Māori people enjoy no political advantage over other citizens. The party claims that “the Treaty promised every New Zealander has the same rights and duties. That is what we should be upholding.”

Its coalition agreement with the National Party explicitly gave effect to the argument against distinctive Māori influence in policy-making by, for example, proposing to repeal section 7AA of the Oranga Tamariki Act.

Section 7AA said that Oranga Tamariki must recognise the cultural backgrounds and whakapapa of Māori children and young people in its care. This requirement could be interpreted as parliament saying that it expects Oranga Tamariki to work as well for these citizens as it does for any other.

Second, the section said Oranga Tamariki must to some extent recognise the rangatiratanga of iwi and hapū by facilitating their wish to assume care and protection responsibilities for their own children.

If ACT’s goal is to improve substantive equality, instead of repealing this section, it might suggest amending all legislation to the effect that: “This Act will be applied to work equally well for Māori as for all other citizens.”

In 2022, the Māori Health Authority was established after the Waitangi Tribunal recommended that equitable Māori health outcomes would be more likely under Māori self-responsibility. This self-responsibility would occur by empowering Māori health experts to lead decision-making about the allocation of public funds for Māori primary health services.

The government abolished the authority. Like the repeal of section 7AA, this action is likely (and perhaps intended) to diminish some people’s capacity to participate fairly in decisions that affect their lives.

The effect is to diminish people’s capacity for self-determination. A further effect is to restate the colonial presumption that some people, based on their position in a racial hierarchy of human worth, ought to be constrained in their personal agency in ways that other people are not.

This is in obvious contrast with the ACT Party’s foundational principle:

“It is inherent in the nature of human beings as individuals that they are the owners of their own lives and must be free to act according to their own judgements so long as they accept and respect the like freedom of others.”

The likely intention of ACT’s Treaty principles bill is to create “one people”, where political equality appears to require Māori assimilation into a culturally homogeneous non-Māori whole.

Culture, freedom, and equality

Te Tiriti can potentially contribute to a more equal, non-colonial and liberal democracy if we view it as an instrument concerned with how power, authority, and responsibility are distributed among political communities: kāwanatanga, hapū and other Māori entities.

Liberal democracy was developed precisely because people are different, and those differences are essential elements of their freedom. A supporting liberal argument, which the Oranga Tamariki example contravenes, is that political freedom can’t occur in isolation from the cultural lens through which people reason. It’s through culture that people frame the aspirations that they want their participation in public life to secure.

Recognising culture is a prerequisite to freedom, and culture is inherently capable of liberal democratic expression. Cultural equality means that people are allowed to be themselves when they participate in public life. They are not obliged to think, reason, and speak as somebody else.

It’s also surely beyond liberal contest for any new Treaty principles to state explicitly that all legislation should work as effectively for Māori citizens as it works for others. If legislation is not intended to do so, as it appears in the Oranga Tamariki example, there can be no argument for equality.

Although liberal political theory primarily focuses on the rights of the individual, it fails to protect these rights if it is inattentive to the context of how, in specific circumstances, freedom is upheld or curtailed.

Freedom is not found in the individual’s right to do whatever one likes. Instead, it is found in personhood, which is bound to one’s association with others. In other words, if freedom is associated with whakapapa, there is a cultural influence on how people decide what policy should achieve and how it should be evaluated.

By way of contrast, the ACT Party’s notion of equality presumes and depends on cultural sameness, where the “same political rights and duties” of citizenship are available only to people who participate in public life through culturally exclusive non-Māori institutions structured to exclude Māori modes of deliberation.

So, everybody may participate, but only once they’ve set aside Māori ways of reasoning, and only if they’re willing to dismiss colonial experiences as a context for developing policy aspirations.

Equality is further interpreted as Māori people being prevented from exercising independent authority over their affairs. Equality, in this version of democracy, is defined and assured only by the government, and the government is the only political space where Māori people may deliberate. The culturally homogeneous state becomes the sole arbiter of what constitutes fair public policy and decision-making processes for Māori citizens.

Liberalism, however, and indeed ACT’s foundational philosophy, emphasises restraining the power of the state. One of the ways the state’s power over citizens is ordinarily constrained is through freedom of association. The freedom for Māori people to form an association for the provision of primary health services, as an expression of rangatiratanga, would be one example.

This means that it can only be in the name of inequality that people are required to choose between citizenship and whakapapa.

Importantly, from a liberal perspective, the state is not the source of its own power. The ACT Party’s principles admit this but don’t accept that government authority comes from all, and not just some, people participating in public life.

When the state’s authority comes from all people, political equality cannot mean sameness. If Māori are among the people on whose consent state authority rests, the argument that their participation in public life depends on subsuming themselves into a culturally homogeneous non-Māori whole may be contested in liberal democratic terms, as well as through Te Tiriti.

All people, not just some, are entitled to live and work in their own culture. The Treaty principles bill co-opts the liberal language of equality to support the illiberal objective of Māori political inequality.

The commonwealth

I’d like to return now to the proposal that Te Tiriti may be interpreted to lay the foundation for a commonwealth. This argument develops from (but is also substantively different from) Te Pāti Māori’s republican argument. It allows us to imagine New Zealand as neither a homogeneous “one people”, nor partners in a racially constructed binary order where rangatiratanga is for “us” and kāwanatanga is exclusively for “them”.

The commonwealth’s founding presumption is that there is a common good and that it’s best upheld by sharing authority. Its power is significant but always conditional on serving the common ends for which its members have agreed to give up a portion of their individual authority. For example, tertiary hospital care, roads, and national security.

Unlike colonialism, the commonwealth has no ends of its own to serve. Its continuation depends not on its power to subjugate but on its capacity to retain the people’s consent. Its service is to its shareholders — all and not just some people.

As shareholders in its authority, Māori political communities are as entitled as anybody to expect that government works in their favour. Māori citizens are therefore entitled to say that this school, hospital, or parliament should not be an exclusively Pākehā institution — because neither Te Tiriti nor liberal democracy justifies public institutions that serve some people at the exclusion of others.

Participatory parity

Whether the commonwealth is a monarchy or a republic, it can still support the republican idea of “non-domination” as the framework for thinking about government.

Participation means that decisions about how public institutions operate and the policy aspirations they pursue aren’t left to other people. Equality of participation, or participatory parity, doesn’t mean making peripheral adaptations to a foreign system that belongs to other people. It supposes that political systems develop and evolve through participation. They are not static. Nor are they beyond critique.

Justice is not, then, defined by what they do to us, but by what we do to ourselves through our presence, wherever decisions of interest and importance are made.

People cannot, however, expect fair opportunities for influence unless their preferred modes of participation may be used. This doesn’t mean that other citizens would be compelled to always use Māori deliberative means, such as hui, but they are compelled to let these means enjoy some space.

Removing the word and concept of “Crown” and replacing it with commonwealth could allow Te Tiriti to be more clearly established as an instrument concerned with who makes decisions, and how, why, where, and for whom, so that a genuine common good is upheld.

Political possibilities would no longer be framed through the always shifting and obscure lens of the Crown as sometimes partner and sometimes adversary.

It’s democratically reasonable for Māori citizens to expect the state to transform itself from a colonial adversary to the repository of all people’s power. To function as a commonwealth that sees rangatiratanga not as a threat to kāwanatanga authority, but simply as a complementary authority that belongs to hapū (and other Māori entities) as empowered spaces in a deliberative network.

By focusing on relationships, and presuming Māori leadership in decisions about how, where and by whom policy is made, we are privileging whakapapa over race as the concept that brings Māori ways of being into public life.

Fulfilling Te Tiriti becomes, not a partnership between races, but a marae-like interpretation of a meeting place where kin groups come together to negotiate and renew the tapu and mana of their relationships, as Anne Salmond has envisaged.

In this image, there is scope for a commonwealth to develop as an institution where rangatiratanga, together with citizenship, weaves people together as the rangatira’s ultimate task.

From this perspective, there are no political claims to be made by virtue of race, there are only rights that belong to political communities formed by whakapapa. These are familial rights and responsibilities to the common good of the political community and its physical environment. They exist only in definable geopolitical contexts and are not powers and responsibilities that exist over and above others.

They are not powers of domination in an unsophisticated them and us binary.

The alternative idea, that liberal democratic citizenship should evolve to presume a cultural barrier to Māori participation in the public life of the state, presumes that Te Tiriti was not a genuine and honest agreement. It also presumes that the form of government that has emerged is legitimate only by its coercive force.

Conclusion

Although Te Tiriti predates liberal democracy, it provides a foundation for democratic expression in ways that are at least intended to work equally well for everybody. It does so because its distribution of political authority and responsibility to hapū, as pre-existing political communities, and to kāwanatanga as a new political entity whose ownership is shared by Māori and non-Māori people alike, supports participatory parity in public decision-making.

Fair and democratically equal public policy is not simply a matter of how public goods are distributed. It is first a matter of how power and responsibility are distributed. One may turn to Te Tiriti as a conceptual foundation for fair government, which must always place the procedural question of how decisions are made alongside the decisions themselves.

Participatory parity is an essential precursor to equality because it requires that all people have the same opportunities for personally meaningful influence, which precludes culture, language, or colonial experience from being used as grounds for exclusion or diminished political voice.

To give participatory parity its fullest expression, I argue for commonwealth as the state’s ideal political form because it removes uncertainty about who and what is the Crown, and uncertainty about the space that Māori citizens ought to enjoy in developing and expressing public authority. It allows for the rangatiratanga of hapū and other Māori political communities to be upheld.

Ultimately, true liberal equality must be substantively experienced by Māori citizens as much as by all others. In different ways, the partnership and “one people” discourses do not support this objective.

Commonwealths are societies where people share their individual political authority for the common good. This is what Te Tiriti envisaged. They can’t be colonial because their power depends on people seeing that the system works for them as well as for anybody else. Unlike colonies, they don’t need to stop people from being themselves.

 

This is an edited version of articles that first appeared in AlterNative and OpenForum.

Dominic O’Sullivan (Te Rarawa and Ngāti Kahu) is a professor of political science at Charles Sturt University, Adjunct Professor at the Auckland University of Technology and Research, and Academic Associate at the University of Auckland. Dominic is the author of eight books, most recently Indigeneity, Culture and the UN Sustainable Development Goals. (Singapore Palgrave Macmillan, 2023)

E-Tangata, 2025