Prime Minister Christopher Luxon at Waitangi. (Photo: Mark Papalii/ RNZ)
At Waitangi this year, the prime minister structured his speech around the three articles of Te Tiriti, and explained what each article says and means.
The problem is that he was just plain wrong, writes legal scholar Carwyn Jones.
When the prime minister, Christopher Luxon, spoke at Waitangi last week, he set out a terribly distorted view of the country’s founding document, Te Tiriti o Waitangi. Here are some of the things he got wrong.
Article 1: Kāwanatanga
Article 1 granted the Crown the authority to establish a government to exercise some authority and regulation over the settler population here in Aotearoa. It did not grant the Crown any authority over Māori. Apart from anything else, that would have been inconsistent with the ongoing Māori authority guaranteed in Article 2.
Nevertheless, the grant of kāwanatanga was a significant concession by Māori. Less than five years earlier, in He Whakaputanga o te Rangatiratanga o Nu Tireni (the Declaration of Independence of New Zealand, 1835), Māori leaders had made it clear that there was no other legal, political, or constitutional authority in Aotearoa, apart from their own.
So, the prime minister was fundamentally incorrect when he described Article 1 as follows:
“It is the agreement that there is a Sovereign, and one government elected by and responsible for all New Zealanders.”
Māori agreed to no such thing. The Waitangi Tribunal has been explicit on this point:
“Our view is that, on the basis of what they were told, the signatories were led to believe that Hobson would be a rangatira for the Pākehā and they would retain authority within their own autonomous hapū . . .
Our essential conclusion, therefore, is that the rangatira did not cede their sovereignty in February 1840; that is, they did not cede their authority to make and enforce law over their people and within their territories. Rather, they agreed to share power and authority with the Governor.”
For the prime minister to claim that Māori agreed that one government should be responsible for everyone is pure invention.
Article 2: Tino rangatiratanga
The central concept in Article 2 is tino rangatiratanga. This is the fullest expression of independence and self-determination. It is a continuation of the existing Māori authority that had been recognised in He Whakaputanga.
In Article 2, the Crown guarantees that this authority will be maintained in relation to all those things that are highly valued. This is a guarantee of legal, constitutional, and political authority, not merely a protection of property rights.
It is a guarantee made by the Crown to iwi and hapū. It creates obligations on the Crown towards iwi and hapū, not the other way around.
It is, therefore, difficult to understand how the prime minister came to describe Article 2 as:
“The authority of iwi and hapū to fulfil their own obligations as partners to the Treaty . . .
It is a recognition not only of property rights, but of responsibility . . .
It is why iwi and hapū have a significant contribution to make to the protection of our natural environment.”
This is a markedly different meaning from that expressed in the Crown’s own Cabinet Office Circular on Te Tiriti o Waitangi / Treaty of Waitangi Guidance, which states:
“Put simply, by Article Two the Crown promises that Māori will have the right to make decisions over resources and taonga which they wish to retain.”
And “taonga”, we should remember, refers to all those things that are highly valued, not merely to physical property.
Consequently, the rights protected by Article 2 are hardly limited to “making a contribution” to protecting the natural environment, but instead provide real decision-making authority in all areas of public policy that affect Māori.
Article 3: Rights of citizenship
Article 3 is often referred to as the “equality” or “citizenship” provision. It includes aspects of both concepts.
It provides that Māori are entitled to the same rights as the settler population. As with Article 2, this is a guarantee made by the Crown to Māori. It doesn’t say anything about the rights of other New Zealanders.
Yet in his speech, the prime minister said this article refers to “that promise that we are all equal in the eyes of the state.”
Here, he again moved away from the language of the cabinet circular, which states:
“Put simply, by Article Three the Crown promises that its obligations to New Zealand citizens are owed equally to Māori.”
This is not at all the same as “we are all equal in the eyes of the state”. Rather, Article 3 is a promise that Māori would enjoy “all the rights and privileges of British subjects”, in addition to, not instead of, the promise of tino rangatiratanga.
The prime minister went further off track in discussing Article 3 by suggesting that a person’s ethnicity should not be relevant to healthcare decisions, among other examples.
Yet public health experts have shown that delivering effective and efficient healthcare in Aotearoa today must take ethnicity into account.
And the Waitangi Tribunal has explained why Te Tiriti and Māori rights are necessary considerations for achieving equitable health outcomes.
Moving beyond misinformation
The prime minister wrapped up his speech at Waitangi by saying: “Some people will take a different view of the Treaty to me. That’s fine.”
It’s true that people will have different views on the role of Te Tiriti in public life. They may disagree about whether the Crown ought to fulfil the promises it has entered into, and how it ought to do so. That’s fine.
However, none of that changes the text or meaning of Te Tiriti o Waitangi.
There are many important matters here that we ought to discuss and debate as a country, but a constructive and mature conversation can’t take place if the discussion is built on misinformation.
Dr Carwyn Jones. (Photo supplied)
Dr Carwyn Jones (Ngāti Kahungunu) is Pūkenga Matua (Lead Academic) of Ahunga Tikanga (Māori Laws and Philosophy) at Te Wānanga o Raukawa, and Honorary Adjunct Professor, Te Kawa a Māui (School of Māori Studies) at Te Herenga Waka Victoria University of Wellington.
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On another subject, C Luxon saying that ethnicity shouldn’t be relevant in health care decisions is a concern. To get health outcomes for all you must understand and practice health equity. In the health sector we take ethnicity into account. We may be quicker to diagnose or run tests for an individual if we take into account their culture and the prevalence of ill health in that population.
For example, Māori and Pacific Islanders present with bowel cancer 10 years earlier than other populations. To have the same health outcomes as other populations, we test for bowel cancer 10 years earlier than non-Polynesian populations. Catching health issues such as cancer early means less death, less specialist intervention, and less hospital admissions, meaning less ill health and strain on the economy. Luxon’s equality statement will mean more inoperable cancers appearing in these populations.
Another population have a prevalence for heart disease from a younger age than all other populations. Therefore, it makes sense from a medical perspective to rule out heart disease earlier than other populations.
We need to listen to our unbiased health professionals, not our ill-informed Govt.
The frontline health workers rely on Public Health to support them, but it seems like they have no teeth, leaving them open to say anything they want.
Yes, but we’re talking about someone who thinks that what’s happening in Gaza is okay, so lying about what a Tiriti and Treaty says is okay if you are a person who does not see a problem with the murder and genocide of hundreds of thousands of innocent people.
Luxon blatantly chooses to reinterpret the parts of Te Tiriti that suit his narrative. Democracy allows for discussion and policy changes in the context of agreed rules and to keep to the spirit of the law.
Carwyn Jones and the comment on his article by Fischer are correct. So this article and comment needs to be shared and understood by New Zealanders so that informed discussion on Te Tiriti/Treaty can be had. In an election year, the PM was re-casting the Tiriti/Treaty – presumably to influence people. But as PM it was unwise indeed to do so, as his authority as PM lends weight to his words, despite the fact that they are misleading.
The prime minister wrapped up his speech at Waitangi by saying: “Some people will take a different view of the Treaty to me. That’s fine.”
It is “fine” for us to have different opinions on all sorts of issues. We can disagree on whether colonialism or rangatiratanga is a better form of government for our people. But it is not so fine for us to take a “different view” on the laws of physics or mathematics or the text of the Treaty of Waitangi. If the Prime Minister wants to take “a different view” on the Treaty as a legal instrument he needs to have some pretty good reasons to back up his view. Yet he has none. He seems to think that he has the right to assert a view which is in plain contradiction to the facts.
It is nonsense to say that the Treaty provided for “one government elected by … all New Zealanders”. No such government existed in 1840. There were no elections, no parliament, and no universal suffrage. All these things arrived many decades later. In 1840, Victoria had no intention of allowing an election “by … all New Zealanders”. Instead she appointed a governor, in the first case Governor Hobson.
Maori of course continued to regard themselves as having sovereign authority because “rangatiratanga” denotes supreme authority and “kawanatanga” denotes a subordinate authority entasked with day-to-day administration. (Ruka 3:1).
“The authority of iwi and hapū to fulfil their own obligations as partners to the Treaty . . .” is not sovereignty. In fact it is no authority whatsoever. No one needs authority to obey. No one needs authority in order to “fulfill .. obligations”. Maori fulfill their obligations simply because that is what any honorable person does. The Crown has not fulfilled its obligations, for reasons that the Crown has never been able to properly explain. And Mr Luxon appears to endorse this failure to fulfill obligations saying “People … may disagree about whether the Crown ought to fulfil the promises it has entered into..That’s fine”. It is not fine at all, Mr Luxon. It is evidence of the total lack of integrity that has characterized colonialist administrations from 1840 to the present day.
Greetings to you, Geoff Fischer. Your comments are excellent. There’s a crying need in this country and in much of the world to step out of politicians’ fantasy worlds & return to the FACTS.