Te Tiriti o Waitangi
As New Zealand’s Treaty Principles Bill goes to a parliamentary select committee hearing it’s worth thinking about whether te Tiriti o Waitangi really does undermine liberal democracy as the Bill’s proponents say.
On the other hand, Te Pāti Māori says that the British Crown and rangatira (chiefs) signed the agreement in 1840 to create a ‘fulfilling’ partnership.
The ACT party says partnership is one of several treaty principles that the Courts and the Waitangi Tribunal have developed but shouldn’t have done. It says treaty principles are for parliament to define.
Some of the other principles, like good faith, reciprocity, active protection, good government, equity, and redress, quite obviously support democracy.
Te Tiriti and the Partnership Principle
Te Tiriti has three short but important articles.
Its second article says that hapu would retain authority over their own affairs, and that the Crown wouldn’t interfere.
The first article said that that the British Crown could establish government. But this isn’t the same as the right to be government.
In 1840 government was the Queen’s job. But as it allowed liberal democracy to develop, the Crown made government ‘the people’s’ job. Surely, Maori people as much as anybody else?
Yet the partnership discourse puts Maori people and the Crown into an oppositional binary of ‘them’ versus ‘us’.
The Crown is sometimes friend, but usually foe, and never reflects ‘us’ in the way that Justice Williams proposed:
Fundamentally, there is a need for a mindset shift away from the pervasive assumption that the Crown is Pākehā (Anglo-Celtic), 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.
Liberal democracy can’t support the idea that the Crown (or government) is only for ‘them’. It can’t support the idea that government has an ethnicity of its own; a Pakeha ethnicity, that excludes Maori people and ways of thinking.
Partnership means we don’t need Te Tiriti’s Third Article
Conversely if government really is only for ‘them’, we are ignoring te Tiriti’s third article.
Article three granted Maori people the rights and privileges of British subjects. In 2024 this promise continues to evolve as New Zealand citizenship. It was a promise of personal equality to all Maori people, and it was to come with ‘equal tikanga’. In modern human rights discourse this is the right to culture, so it’s not a special Maori right or privilege, it’s a right that belongs to everybody in the world.
Referring to te Tiriti, Professor Sir Hugh Kawharu said:
Citizenship isn’t static and equality means that Maori people have the same right and duty to contribute to citizenships evolution as anybody else. Yet the ACT party seems to be saying that we can’t have cultural equality if we are going to have liberal democracy. Nor can we have Maori people looking after their own affairs.
Equality might include a principle that says all legislation should include a clause that says something like ‘This Act will be interpreted and implemented to work as well for Maori citizens as for all others’.
There would be no doubt – democracy is supposed to work for everybody.
Beyond Crown and partnership – Government that works for everybody because it is everybody
The Crown is large and powerful. Partners are allowed to say what they think, but not take a share in its decision-making. They are stakeholders in somebody else’s project, not shareholders in government in the way that citizenship usually demands.
This raises the question, who actually ‘owns’ the Crown? In practical terms, who owns the system, institutions and processes of government?
My article in the journal AlterNative, shows that beyond partnership, we can open up new spaces for thinking about how government might really belong equally to everybody.
Maori citizens and their hapu could belong, not as partners or adversaries, but as members of a commonwealth.
Commonwealths are societies where people share their individual political authority for the common good. This is what te Tiriti envisaged.
Commonwealths should work for everybody because they are everybody. This is also how hapu work.
Commonwealths 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 being themselves.
In a book This Land Is Our Land: the Struggle For a New Commonwealth Jedediah Purdy argued that commonwealths are distinctive because they imagine ‘flourishing that is shared and open to all’. They are political communities, not abstract and distant like ‘Crown’, and ‘no one and gets their living by denigrating someone else’.
‘My flourishing’, which Aristotle said is the purpose of politics, is the ‘condition of your flourishing, and yours reciprocally of mine’. Political arrangements should be made to assume ‘deep reciprocity as well as deep equality’.
Seymour is right, partnership doesn’t help, but nor does his Treaty Principles Bill. And as former Chief Justice Elias said, quoting an English legal historian, Crown doesn’t help as a word for government because ‘the Crown lives in the Tower of London’.
Dominic O’Sullivan is Professor of Political Science at Charles Sturt University and Adjunct Professor in the Centre for Maori Health Research at the University of Auckland University of Technology. His recent publications include ‘We Are All Here to Stay’: citizenship, sovereignty and the UN Declaration on the Rights of Indigenous Peoples and Sharing the Sovereign: Recognition, Treaties and the State.
