David Seymour seems determined to make his referendum on Treaty principles a bottom line in the coalition talks. But do we need “Treaty principles”, much less a referendum that would seek to redefine and set them in stone? Why not just go back to Te Tiriti? Here’s Moana Maniapoto.
Silence is bliss, isn’t it?
The day after the election, David Seymour told our show (Te Ao with Moana) that if Christopher Luxon takes Act’s proposed Treaty referendum off the table, Seymour would “put it back on”. His mission? To ensure that “all citizens have the same political rights”.
Ignoring the elephant in the room that is ongoing colonisation, Seymour is calling for a “national debate” on Te Tiriti and co-governance.
Given Act MP Karen Chhour struggled to debate Te Tiriti (in an actual televised debate about Te Tiriti), and given New Zealand history was only formally introduced as a compulsory subject into the school curriculum in 2022 (thanks to Labour), and given how thick the trolls on social media are (very), the chances of having a half-decent convo, let alone a “debate”, are next to zero.
In the lead-up to the election, the Act leader set the tone. Pushing individual rights over collective rights, getting anti over anti-racism, and hinting of a Māori takeover. Ignoring the reality that, since 1840, there’s been a takeover of Māori, not by Māori, Seymour’s comments sound less like a call for a debate, and more a call to war.
The thing is, most people with a handle on Te Tiriti say context is everything. History, too.
In the 1800s, Māori were the majority — and they were incredibly generous to the migrant minority, up until some of the newcomers became hōhā and others became landsharks. Missionaries pressured the British Colonial office to control their hōhā subjects. The answer was a treaty. Although back then, New Zealand was made up of multiple iwi or hapū. And a treaty can only happen between nations.
In 1835, James Busby actively facilitated He Whakaputanga: the Declaration of Independence of the United Tribes of New Zealand. It was initially signed by Northern chiefs. Te Wherowhero, the first Māori king, was the last signatory in 1839. It recognised the independent, sovereign power of Māori nations. And it followed a decision in 1834 to adopt a national flag as a symbol of sovereignty for trade and commerce. The declaration represented Māori expectations and Crown understandings.
Then, five years later, came Te Tiriti o Waitangi. It didn’t arise out of warfare but under conditions of peace. It reaffirmed chiefly tino rangatiratanga and granted the Crown authority to govern their own people. Yes, there were English and Māori versions. Some people cite the English text and insist Māori ceded sovereignty. The Waitangi Tribunal’s recent extensive report on that history says no, that absolutely wasn’t so. Even international law dictates that, when in doubt, any interpretation must favour the party which didn’t draft it.
But back to “context”.
Records at the time suggest that the British didn’t view sovereignty as absolute, but co-existing with tino rangatiratanga held by rangatira. In his epic work The English Text of the Treaty of Waitangi, lawyer and scholar Ned Fletcher writes that such plurality was bold thinking.
Not all iwi signed Te Tiriti. Their reasoning was the same as those who did sign: to maintain tino rangatiratanga.
Hearing rumours that the New Zealand Company was circling and wanting to set up shop for private colonisation, Lieutenant-Governor Hobson simply proclaimed (and claimed) Te Waipounamu under the so-called “doctrine of discovery”. His deputy did the same over Stewart Island.
Things ticked along okay until settlers piled in, outnumbering Māori, and insisting, often violently, that they were now in charge despite Te Tiriti. It would be one rule for all. Their rules.
Oh, and they’d quite like all the land too, thank you.
Ever since, there’ve been battles, hīkoi, occupations, petitions, court cases, tribunal hearings, and delegations to kings and the UN as Māori fought to have the articles and spirit of Te Tiriti honoured. Not the kind of thing you’d do if you had willingly handed over complete power.
Over the years, a set of “Treaty principles” (first referred to in the Treaty of Waitangi Act 1975 which established the Waitangi Tribunal) were developed by the New Zealand Court of Appeal and adopted by the Crown. These vague principles included notions of partnership, protection and participation. On the one hand, they were a recognition by the Labour government that privatising resources like forests and fisheries were a blatant breach of the Treaty. On the other hand, the courts used them to maintain the status quo of Crown rule.
Many Māori reject these principles as not going far enough.
I was at Waitangi back in 1990 when Bishop Whakahuihui Vercoe told the Queen straight to her face: “We don’t need your principles. We have Te Tiriti.” Bishop got a big cheer from Māori for that.
Act believes the principles have gone too far.
In October 2022, Act’s justice spokesperson, Nicole McKee, announced the party would define the Principles of the Treaty as:
The New Zealand government has the right to govern New Zealand.
The party acknowledges that such authority to govern was limited by the exercise of te tino rangatiratanga. However, their Article Two rewrite says:
The New Zealand Government will protect all New Zealanders’ authority over their land and other property.
Ditched words. Replaced words. Twisted words. Decontextualised words. And, to quote Winston Peters: “Words matter.”
Remember that the Māori version of Article 2 uses the word “rangatiratanga” in promising to uphold the authority that tribes had always had over their whenua, their kāinga, and their taonga. It emphasises status and authority — which is way more than co-governance achieves. And way more than just English-style property rights over plots of land.
Ironically, even the English text guarantees to Māori the undisturbed possession of their properties, including their lands, forests, and fisheries, for as long as they wished to retain them — the kind of property and ownership rights Act is usually keen on when it applies to everyone else.
And as for Act’s take on the third article?
All New Zealanders are equal under the law, with the same rights and duties.
Act interpret this to focus on individual rights. Not the obligation to ensure that all who share this land under the Treaty have equal enjoyment of their respective collective rights and responsibilities.
There’s no mention of a fourth oral article about freedom of beliefs and religion.
David Seymour insists everybody else has got the Treaty wrong. He rails against the expanding use of co-governance, particularly in the public service. The party erected billboards that said” “End division by race.” He insists the Treaty doesn’t mention “race”.
Well, no one else has ever said that it does, but that hasn’t stopped him from framing any discourse around Te Tiriti as about race.
David isn’t a historian, lawyer or reo expert. When I interviewed him before the election, he refused to name any iwi leader, academic or activist who has advised him. But without a hint of irony, he takes it upon himself to define Te Tiriti. Since Nicole McKee’s 2022 revision, it appears he’s had another shot at the Treaty Principles Act.
Seymour says it’s short and decisive. It’s not. He says it’s based on the actual articles. It isn’t.
These principles, he says, would “prevail over any contradictory enactment by Parliament or finding on the matter of Treaty Principles by the Courts”:
All citizens of New Zealand have the same political rights and duties.
All political authority comes from the people by democratic means including universal suffrage, regular and free elections with a secret ballot.
New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal.
The “everybody is the same” argument is an ideological position that has nothing to do with the history, context and spirit of Te Tiriti. Nor does it reflect the principles or resemble the actual text. It’s reductive. It erases our Indigeneity and ignores the impact of racism by, well, ignoring the existence and reality of racism.
The Act petition for a referendum repeats the actions of many conservative groups around the world. It distorts Martin Luther King’s “content of our character” line from his “I Have a Dream” speech to argue against co-governance and any efforts to address institutional racism and move towards honouring Te Tiriti.
Reverting to the articles of Te Tiriti is something a lot of people might prefer over the rather anaemic Treaty principles because it would definitely get New Zealand “back on track”.
It would require a new Tiriti-centric constitutional model such as that imagined back in 1840, and which are reflected in Matike Mai and debated in classrooms, boardrooms, bars and marae since forever. Māori, Pākehā and tangata Tiriti, joining the dots to solving practical problems around housing, health, schools, water, environmental degradation . . .
And, hey, maybe even roads?
It will be a test for National and New Zealand First to see if they’ll reject Act’s bottom line. They may say no to a referendum but set about quietly unpicking all that’s been advanced in the last two terms, which will only serve to take us back.
To do something different takes imagination, courage, and critical thinking. There’s a growing movement looking for new, consensus-driven decision-making that centres our collective responsibilities to each other and to our ancestors, descendants and the planet. It’s already happening in many places.
That is real change. Just not the kind Act wants.
Moana Maniapoto (Ngāti Tūwharetoa, Te Arawa) is the host of the award-winning current affairs programme Te Ao with Moana which screens on Whakaata Māori.
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