Opinion: In latest months, there was an enormous quantity of dialogue of ‘the rules of The Treaty of Waitangi’. More often than not, the reference to ‘the rules’ is not only a basic reference to the concepts underpinning The Treaty/Te Tiriti, however a particular reference to a authorized and coverage assemble developed from the Nineteen Seventies and Nineteen Eighties onwards. So why will we seek advice from ‘the rules’ particularly? The place did they arrive from, what did they imply, and why are we debating them once more in 2024?
Partially one in all this sequence, I mentioned the parable of the cession of sovereignty–the concept that Māori ceded sovereignty to the Crown in 1840. Regardless of the overwhelming proof that it’s a delusion, this concept persists. Not solely that, it stays the central justification for why we want ‘the rules’. Because the argument goes, if te Tiriti (the te reo model) and the Treaty (the English model) don’t match (which is true) and we are able to’t probably know what signatories supposed (which isn’t true), we have to discover a compromise between the 2 (which is uncertain).
From a Māori perspective, there needs to be no have to compromise on one thing that’s completely clear within the first place. However, because the mid-Nineteen Seventies, ‘the rules of the Treaty’ have been used to at the very least attempt to uphold this compromised model of the doc.
Reference to ‘the rules’ was first made within the Treaty of Waitangi Act 1975, which created the Waitangi Tribunal. The Tribunal was empowered to supply for “the observance, and affirmation, of the rules of the Treaty of Waitangi”, with authority given to take a look at each the te reo and English texts. Early Tribunal experiences paved the best way for later developments regarding each te Tiriti/the Treaty itself and the rules.
The place the rules actually took maintain, nonetheless, was within the late Nineteen Eighties, largely as a consequence of a court docket case involving the New Zealand Māori Council. In 1986, the federal government handed the State-Owned Enterprises Act, which included a provision stating that “nothing on this Act shall allow the Crown to behave in a fashion that’s inconsistent with the rules of the Treaty of Waitangi”. A yr later, our highest court docket was required to find out what these rules have been.
A lot of what we all know concerning the rules nonetheless comes from that case. Amongst different issues, the court docket mentioned the rules of partnership (that te Tiriti/the Treaty was a partnership between Māori and the Crown), energetic safety (that te Tiriti/the Treaty creates an obligation on the Crown to actively shield sure Māori pursuits), and of redress (that breaches of te Tiriti/the Treaty oblige the Crown to compensate Māori). It additionally mentioned the duty on each Treaty companions to behave fairly and in good religion in direction of one another, an concept that is still central to understandings of te Tiriti/the Treaty immediately.
Treaty rules are additionally more and more included in laws. There’s a pattern in direction of provisions being extra particular, requiring the Crown to take particular actions with a purpose to uphold its Tiriti/Treaty duties. An instance is discovered throughout the Oranga Tamariki Act, which requires the company to (amongst different issues) scale back disparities between Māori and non-Māori kids, and “search to develop strategic partnerships with iwi and Māori organisations”. These provisions are sometimes a step ahead, however specificity isn’t a panacea. The Treaty provision within the Oranga Tamariki Act, for instance, was criticised by the Waitangi Tribunal for falling wanting full compliance with te Tiriti/the Treaty.
To summarise up to now: the rules have advanced over time, come from a number of sources, and for a lot of the previous 40 years have been the principle means during which lawmakers, public officers, and courts have navigated the variations between the 2 texts of te Tiriti/the Treaty.
Placing apart the parable of the cession of sovereignty, it’s maybe unsurprising the Authorities has acknowledged that additional readability can be helpful. The issue, nonetheless, is that what’s being proposed isn’t actually an try and make clear Treaty rules, however an try and erase them.
The rules that the Act Social gathering want to legislate for are contradictory and make little sense within the context of what Te Tiriti o Waitangi truly says. For instance, its proposed ‘new’ Article One refers to kāwanatanga, however the subsequent definition of that time period refers back to the authorities’s proper to control all New Zealanders. That’s merely not what kāwanatanga was supposed to imply within the unique textual content of Te Tiriti.
Much more egregiously, ACT’s model of Article Two refers to tino rangatiratanga, however states that this implies the federal government “will honour all New Zealanders within the chieftainship of their land and all their property”. That’s not a reinterpretation of Article Two, it’s a full fabrication.
ACT’s proposed new Article Three states that each one New Zealanders might be equal underneath the regulation, with the identical rights and duties. That concept may resonate with some folks, however once more–it’s by no means what te Tiriti says, irrespective of how a lot David Seymour needs in any other case.
The rules utilized by the courts and the Waitangi Tribunal is likely to be primarily based on a delusion, however they’re much more coherent than what the Act Social gathering desires to switch them with. David Seymour says he desires to create certainty, however given their inherent contradictions, his ‘new’ rules usually tend to do the other.
For my part, the modifications proposed by the Authorities are each morally incorrect and legally incoherent.
Whereas some folks on either side of the talk would state that the rules as we all know them needs to be modified, re-writing them in the best way the Authorities has prompt can be an enormous setback for our nation.
The good disgrace of those proposals is that as a nation (regardless of what David Seymour would have us imagine) we lastly appear to be able to have a mature debate about our constitutional future. That dialogue, grounded in what te Tiriti truly says, needs to be a trigger for nice hope, slightly than for the politics of concern that we now have seen so prominently recently.
That is half two of a three-part sequence by Dr Luke Fitzmaurice-Brown (Te Aupōuri) on the rules of the Treaty of Waitangi. Half one mentioned a false impression usually underpinning Treaty debates – the parable that Māori ceded sovereignty. Half three will focus on the way forward for Te Tiriti o Waitangi in modern-day Aotearoa, arguing that discussions about Te Tiriti ought to make us all hopeful, slightly than fearful, and expands on what that attainable future may seem like.