Last week the Waitangi Tribunal released its findings from the first stage of its hearing into claims from the Far North tribes. The claim is known as ‘Wai 1040’ and the Tribunal’s report highlights everything that is wrong with the way the Treaty is now being applied in New Zealand. In a nutshell, the Treaty is being used to try and resolve contests over New Zealand’s constitution but it simply doesn’t lend itself to that job. We need a forum to debate Maori constitutional aspirations but the Tribunal isn’t it.
The Tribunal’s job is to build a morally compelling case
The Tribunal is an advisory body. Bar one exception relating to SOE land, the courts’ decisions are binding on government. The Tribunal has nothing in common with the courts bar superficial similarities relating to appointments and process. The Tribunal was set up to help negotiations between Maori and non-Maori over resources and political power. The Tribunal’s contribution is to facilitate the development of a moral case for change that is compelling enough to get widespread support. To date it has largely done a reasonable job of it and that is because the negotiations have been primarily about resources, not political power.
Resource-related grievances have nearly all been settled but there is no sign the Tribunal is shutting up shop. Instead the negotiations are now focusing on political power. The Wai 1040 claim isn’t the first example of this but it is an important one not least of all because it relates to New Zealand’s largest iwi, Nga Puhi.
Negotiations are needed…
Why are there Treaty negotiations at all? While the English language version of the Treaty had very clear things to say, meanings were arguably lost in translation to Maori. The English language version of the Treaty says there is one supreme authority (the Queen at that time, Parliament now), everyone is an equal citizen and property rights – including and especially the rights of Maori in the vast natural estate – were to be respected. Maori property rights weren’t respected despite the Treaty and Maori from up North in particular have long said the chiefs did not understand they were giving up supreme authority or ‘sovereignty’.
In the resource-related claims it was largely possible in hindsight to find the ‘truth’ about a dispute. However negotiations were warranted because no successive government was prepared to restore all the resources that were lost to Maori and nor were Maori demanding that. Some middle ground had to be found. Negotiations, aided by the findings of the Tribunal, were used to reach a compromise on resource-related disputes.
…but the Tribunal can’t help when it comes to political power
Disputes about political power are a very different beast. Despite everybody’s best efforts it is impossible in hindsight to establish the ‘truth’ about what was agreed by the chiefs. We can only ever argue about what individual chiefs may or may not have understood. It is not simply a case of a naïve isolated people being exploited – many of the chiefs were well-travelled and understood the colonisation process well.
The usual process of tabling vast amounts of historical evidene simply can’t get us any closer to a morally-compelling case here. This limits the contribution the Tribunal can make on the disputes about political power. But the problem is greater than that too.
Article 3 is a check on constitutional reform
The Treaty’s Article 3 stated clearly that everyone in New Zealand – Maori and non-Maori alike – had the same rights as British subjects. It seems to have been generally accepted by the Tribunals and the courts that Maori and non-Maori signatories to the Treaty had a common understanding of the meaning of that clause. In 21st century terms Article 3 means we are equal citizens. Any reasonable interpretation of that in the modern world amounts to political equality or democracy – i.e. we all have the same opportunities to influence decisions that affect everyone.
Article 3 operates as a limit on what can be negotiated about political power. Even if, as the Tribunal has tentatively concluded, supreme authority did not transfer from the chiefs to the Crown under the Treaty, the Treaty nevertheless upheld equal political rights for all.
Article 3 acts as an effective check on any changes that can be made with respect to political rights. In particular, Article 3 doesn’t support changes which would give Maori more opportunities than other New Zealanders to influence decisions that affect everyone. It limits the constitutional changes the Tribunal can credibly support.
That doesn’t mean we haven’t had changes that have deviated from political equality. The decision by successive governments to retain the Maori seats under MMP is a breach of Article 3 for example because no other ethnic group is permitted to form an electorate and thus be guaranteed a seat in Parliament. Creating Maori wards for local council elections is a similar deviation. And nor has it stopped some Tribunals from supporting unique political rights for Maori, which raises concerns about Tribunal neutrality. The Tribunal which heard ‘Wai 262’ in 2011 (the flora and fauna claim) said:
“…unless Māori culture and identity are valued in everything government says and does; and unless they are welcomed into the very centre of the way we do things in this country, nothing will change. Māori will continue to be perceived, and know they are perceived, as an alien and resented minority..”
The wider implications of Maori aspirations need to be considered
There is another problem too. To date Tribunal members appear to have shown negligible interest in the wider implications of Maori aspirations that underpin disputes about political power. This failing doesn’t matter much when it comes to land claims, because the implications of the aspirations are obvious – a simple transfer of economically and culturally valuable resources to Maori. But aspirations to constitutional reform – which underpin disputes over political power – are quite another matter.
Constitutional design has a huge impact
Constitutional design is hugely important for the ongoing social and economic success of a country. The pros and cons of different constitutional arrangements are well-established in the international literature. This literature points to any move away from individual political equality being fraught with problems. Not least, under certain conditions, it incentivises leaders of groups to create artificial social divisions, and to amplify differences between groups. This undermines the cross-cultural connectedness that empirical evidence shows time and again is an essential ingredient in individual wellbeing.
New Zealand has a lot to learn from this literature but we rarely discuss constitutional matters. Discounting the poorly conceived Constitutional Review, the only forum for those debates is the Tribunal and that is unhelpfully Treaty of Waitangi-centric.
Where then does it leave us with Wai 1040 and the Far North?
Given the difficulties in applying the Treaty to the issue of political power, it should come as no surprise that successive Tribunals have disagreed with each other. The Tribunal per se has been unable to form any sort of consensus among its own members, let alone the public, on disputes over political power. The Treaty simply doesn’t lend itself to this issue. Wai 1040 has played an important role in giving a stage to the tribes long-held grievances, but the Tribunal’s findings should not become the basis for constitutional reform.
We’re not saying Maori aspirations should not be debated and constitutional reforms shouldn’t take place. But we are saying those aspirations need to be debated on their own merits without reference to the Treaty. To what extent do Maori seek greater devolution rather than unique political rights? Is it possible to meet Maori aspirations without compromising on political equality? It surely has to be, otherwise we are moving away from democracy with all that implies for individual wellbeing and social stability. There are productive conversations to have on these issues, but we’re not going about them in any sensible way. The Treaty and the Tribunal can’t help us. We need a new approach.
And if you’re thinking there is nothing to be done that will both appeal to the Far Northern tribes as well as have the support of the rest of New Zealand, think again. There is plenty of potential yet to be explored with devolution – which delivers self-determination to Maori but requires no compromise on individual political equality.