Monday, April 20, 2009

Treaty of Waitangi in law

The Treaty of Waitangi and equality before the law

John Robinson

Our common culture celebrates the concept of equality before the laws as a fundamental principle. Differences based on inheritance, class, ethnicity, gender, sexual orientation have been fought against, and overthrown. We should celebrate and protect that progress and improvement on our civil rights.

Although the Treaty of Waitangi and its modern rewrite, the Principles of the Treaty, both state that desire for equality, they claim a special and different legal status for Maori. This is self-contradictory and poor law, which enshrines legal difference based on race. Such law, largely formed not by elected parliamentarians but by courts, has not been open to adequate scrutiny.

These points have been made in a Private Member's Bill, Principles of the Treaty of Waitangi Deletion Bill (a copy of which is appended here), which argues that all reference to the Treaty be removed from legislation and that all legislation be informed and directed to the desire for equality that has been so hard fought for. This is a powerful principle, worthy of respect. It is central to my culture.

The concept of equality

Some centuries of struggles and the several revolutions in the United Kingdom, the United States of America and France form part of our considerable cultural inheritance. People had to fight with their lives to establish the central principle of equality at birth, replacing privilege of birth, replacing differentiation before the law based on class, race, gender or sexual preference.

The challenge to absolutism and the inherited privileges was symbolised by Beaumarchais in his dazzling 1781 play, The Marriage of Figaro, in which Figaro the barber turns on Count Almaviva and issues his famous challenge:

Because you are a grand seigneur you believe yourself to be a genius … Nobility, wealth, rank, offices! All that makes you great and mighty. And what have you done to deserve so much? Just the trouble of getting born and no more: and for the rest you're just an ordinary man.

Here is the crux of the matter. Privilege based on Just the trouble of getting born and no more was overturned. The new idea of equality was gaining widespread support through the 18th century, as in the USA Declaration of Independence.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

There is no mucking about here - that all men are created equal is basic, held to be a self-evident truth.

Note too That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it. Here is a clear recognition that future generations are free to order their own lives – and such actions have steadily improved that original framework.

For that claim to set up a government based on equality was manifestly untrue. It took a bloody civil war and a civil rights movement (in which, again lives were lost) to rid the country of slavery and racism, and further struggles for gender and sexual orientation equality had to be fought before we reached the current situation where at last those glorious words ring true.

I have lived within that process. As a student in Boston and a lecturer in Rhode Island I traveled to Washington to join in a massive civil rights demonstration and was advised not to travel south with northern number plates. I have lived too in England and France, learning something of their cultures and our shared histories. Back in New Zealand I joined in the struggle for equal pay for women. Mine were all small-scale efforts, but this is the history of my times.

There has been much progress during my lifetime - the racist regime of apartheid in South Africa is gone and race is no longer a barrier to the presidency of the USA. In neither the USA nor South Africa is there any desire to return to the imperfections of the past, which have been improved by so much effort. Those advances should be celebrated, not undone.

Here in New Zealand we should similarly build on advances towards equality and improved social organization. The changes of 1840 saw an end to marauding war parties, slavery and cannibalism. We should celebrate those positives and refuse to focus only on negatives. We should then move ahead, refusing any backward step towards inequality based on accident of birth.

The past - guide or commandment?

We share a rich culture, drawn from many centuries and many different places. It is important to take guidance from that past, to learn from past struggles and to reflect on the advances that have improved our lives.

At the same time, we must recognize that we are masters in our own house, that decisions for today are ours to make, and that we are not bound tightly by decisions of past generations. Thomas Paine expressed this simply and clearly in Rights of man (1791).

Those who have quitted the world, and those who are not yet arrived at it, are as remote from each other as the utmost stretch of mortal imagination can conceive. What possible obligation, then, can exist between them; what rule or principle can be laid down that of two non-entities, the one out of existence and the other not in, and who never can meet in this world, the one should control the other to the end of time?

The circumstances of the world are continually changing, and the opinions of men change also; and as Government is for the living, and not for the dead, it is the living only that has any right in it. That which may be thought right and found convenient in one age may be thought wrong and found inconvenient in another. In such cases, who is to decide, the living, or the dead?

We need accept no tyranny of the past. A 169-year old document, written and agreed by representatives of the societies of that day is a part of our history but not a straightjacket on our deliberations.

The making of law

A law is written as guidance for the behavior of citizens, who must act according to the set rules, and as directions to the various public authorities who must administer those rules. It must make sense, be clear and easy to follow.

These guidelines were not followed in the case of Treaty legislation. Indeed the legislators decided quite deliberately to pass unclear law which was then to be interpreted and defined by the courts. This is described clearly by former Minister in Charge of Treaty Negotiations, Doug Graham, in his book Trick or Treaty.

In the 1970s and thereafter, Parliament included a reference to the Treaty or the "principles of the Treaty” in various statutes. This was no accident or inadvertence on the part of Parliament. It had decided to leave the interpretation of the principles to the courts quite deliberately.

The meaning of the legislation is only known when the “principles” are defined. Parliament thus abrogated its responsibilities; the courts are not the proper place for the creation of law.

Meaning of the Treaty

Since there are no principles explicitly set down in the Treaty, government decided to formulate a set. That was no easy task, and around 25 versions of principles drawn from the Treaty were considered – indeed I recall one version prepared by a Treaty expert that was eminently reasonable but which would be considered quite unacceptable today.

This is the world of Lewis Carroll’s Through the looking glass.

“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”

Since the Treaty is not a clear document, government chose to write its own ideas into legislation. What they produced was contradictory - not even self-consistent.

The "Principles for Crown Action on the Treaty of Waitangi” adopted by the Labour Government in 1989 include a statement of equality.

Article 3 constitutes a guarantee of legal equality between Māori and other citizens of New Zealand. This means that all New Zealand citizens are equal before the law.

Other principles set down a different, and unequal, treatment of Maori before the law.

Article 2 guarantees to Māori hapu (tribes) the control and enjoyment of those resources and taonga that it is their wish to retain. The preservation of a resource base, restoration of tribal self-management, and the active protection of taonga, both material and cultural, are necessary elements of the Crown’s policy of recognising rangatiratanga. The Government also recognised the Court of Appeal’s description of active protection, but identified the key concept of this principle as a right for iwi to organise as iwi and, under the law, to control the resources they own.

There is a great problem here, since the extent of “resources and taonga” is not clear. This has been interpreted by some to include Maori control of the commons – of those parts of the environment such as waters, foreshore and sea that have always been considered in the public consciousness to belong to us all. If Maori have that control, then non-Maori do not.

A division of the population is directly expressed.

The Treaty is regarded by the Crown as establishing a fair basis for two peoples in one country. Duality and unity are both significant. Duality implies distinctive cultural development while unity implies common purpose and community. The relationship between community and distinctive development is governed by the requirement of cooperation, which is an obligation placed on both parties by the Treaty. Reasonable cooperation can only take place if there is consultation on major issues of common concern and if good faith, balance, and common sense are shown on all sides. The outcome of reasonable cooperation will be partnership.

The mind boggles at the various interpretations of all this. If the Maori are separate from the Crown, can a Maori be the representative of the Crown - Prime Minister or Governor General? Who stands up as “Maori” to assert the power in this partnership? And do those people also belong on the other side of the partnership? If there is a move to separate legal systems (as seriously proposed now) what happens when a Maori steals from Pakeha?

Law should work in practice and should not be patently silly.

The Treaty in practice

Who represents Maori in any practical sense? Reference to a Treaty signed in 1840 fixes the definition firmly, and for all time, in the situation existing at that specific time.

Once Ngati Tawa and Ngati Ira lived in Wellington. Then in the 1820s two raiding parties attacked, killing, capturing and driving out the inhabitants by 1830. Consequently Te Ati Awa (and the Tenths Trust) and Ngati Toa claim that they are tangata whenua of the land and coasts. This is position based on bloody conquest and on one particular date in a fluid time. There is no place for the descendents of the defeated and former slaves.

Like Paine I cannot accept the uncivilised principle of Governments founded in conquest. Where there have been wrongs due to settler and British use of force, these are being put right through the Treaty settlements process. It is unacceptable that wrongs derived from Maori actions should be ignored or even celebrated; today’s position and privilege should not be based on past killing.

Here we have the triple wrong of position before the law based on choice of birth (ancestors of 169 years ago), on race, and on past bloody attacks on peaceful tribes.

This does matter. Local government is required to consult specifically with Maori, additionally to the processes open to the rest of us. The Maori concerned are the few leaders of the recognized iwi. A few individuals, by right of birth and position, are given a special place in reaching decisions on the common good. In my limited experience I have noted this process in considering a sewage system for Wellington, building on the coast at Te Raekaihau Point, setting up the Taputeranga Marine Reserve and use of the Wellington Town Belt.

A grievance industry

I once appeared before the Waitangi Tribunal. My comments were based on an analysis of land losses and general health measures among northern South Island Maori in the nineteenth century. Two features of that experience stand out.

The figures indicated that Maori health improved and population started to increase at the end of the eighteenth century – at a time that land losses were greatest. The message that poor Maori health was not largely a consequence of land loss was not accepted by the funder and I was required to rewrite my report draft and to add extraneous material. One consequence was that the major conclusion (that the main reason for the drop in Maori population was to be found elsewhere, such as in the disastrous social disruption of the savage inter-Maori fighting of the 1820s) was hidden. This was my direct experience with the grievance industry where studies are funded that emphasise, and exaggerate, the damage of colonization.

The hearing itself was packed with Maori litigants and their lawyers, whose questions to me were designed to improve their case against the Crown. The Crown was represented by a couple of young lawyers who were isolated and overwhelmed by their situation. They asked no clarifying questions.

This was no neutral or fair fact-finding exercise, and a very poor means to develop a full understanding of our history. Yet that Tribunal is a major player in the process of interpreting the law.

Well-being of Maori

I have researched and written on the Maori social experience over some 20 years. Much of that work involved the bringing together of statistical information, from early estimates of pre-colonisation Maori numbers to a comprehensive contemporary overview of a full range of statistics.

One could see two periods when the Maori situation improved: around the end of the nineteenth century when the population began its recovery, and after the second world war when many Maori moved into cities and shared the facilities and incomes of other New Zealanders. However, while improvements continued thereafter, these were slow and ethnic inequality was persistent.

The situation was considerably worsened by the ‘reforms’ of the post-1984 period. When unemployment went to 10% for the whole population, it was over 20% for Maori, and over 40% for young Maori men. The increase in inequality of the times was particularly harmful to Maori, and an underclass appeared.

I have been shocked by those developments, but my employment was cut short when decisions on contestable research funds were increasingly dictated by the adage “by Maori for Maori”. The research had shown that many measures such as Maori health and education have improved with increased non-Maori involvement, and I believe that we should all pitch in to help the underprivileged of all races.

The time of increasing economic hardship, which has been so hard on many Maori, is also the time when the Treaty drum has been beaten ever more vigorously. Attention has been misplaced, misdirected from a common effort to overcome social ills to a divisive push for separate development. The continuing focus on Treaty issues pulls Maori attention elsewhere and blocks interracial initiative


These are my thoughts. They sit outside the mainstream of comment I find in the media, and differ considerable from the attitudes of many experts on Treaty matters. They are not, however, unique. The following text of a Private Members Bill presents many of the same arguments that I make.

We as a people have taken our collective eye off the ball. The move to separate development is contrary to the major advances of our times, which have seen an end to apartheid in South Africa and an end to racial discrimination in the USA. It is a move away from the ideal of equality that should be central to our society. And it leaves poverty and misery unaddressed.

Principles of the Treaty of Waitangi Deletion Bill
Member's Bill
Explanatory Note

This Bill eliminates all references to the expressions “the principles of the Treaty”, “the principles of the Treaty of Waitangi”, and the “Treaty of Waitangi and its principles” from all New Zealand Statutes including all Preambles, interpretations, schedules, regulations and other provisos included in or arising from each and every such statute.

The Bill seeks to correct an anomaly which has harmed race relations in New Zealand since 1986 when the vague term “the principles of the Treaty of Waitangi” was included in legislation.

As this anomaly was created by Parliament through the legislative process, Parliament must address the damage and harm these “principles” have inflicted on both Maori and non-Maori. The first step must therefore be to remove all reference to these insidious principles from all legislation. This Bill achieves this.

We note the following in relation to these principles:

Firstly, they were inserted by the Fourth Labour Government, not at the request of Maori, but by paternalistic and interfering Ministers.

Secondly, while Parliament inserted them in legislation, Parliament never actually defined them. This task has fallen to Judges, who have taken an increasingly activist, liberal, and broad licence in providing a form of definition. However, despite nearly two decades of existence, these principles remain largely undefined and ambiguous.

Thirdly, these principles have become a source of ongoing litigation regarding their relevance and meaning. While this has substantially benefited those associated with the legal process, there has been no tangible benefit for Maori as a consequence of their existence. Indeed, the focus on and cost of the associated legal processes has not only needlessly diverted large amounts of money away from more pertinent issues, it has also surreptitiously created unrealistic expectations among Maori in relation to their entitlements from society.

Fourthly, these principles have become a diversion away from the true pathway to success for both Maori and non-Maori: a strong education system, reliable healthcare, employment and housing and a spirit of entrepreneurship and vision. The principles have allowed some Maori to continue to portray themselves as victims constantly in grievance mode, a mentality which leads down a dead-end path from which no true progress can come. It also anchors Maori (and tries to do the same to non-Maori) to the past, limiting their prospects for the future.

Finally, these principles are a divisive mechanism which has set one group of New Zealanders against another. The world watched with horror last century as South Africa went down a destructive path of separate development and it would be tragic indeed for New Zealand to follow such an ideology.