Mike Butler: Implications of treaty in constitution

What are the implications of the view that most people think the Treaty of Waitangi must have constitutional status, and why would the Maori Party have a goal of goal of ensuring that the current constitutional review gives effect to the treaty? Aside from the legal arguments whether the treaty is or should be in or out of the New Zealand constitution a significant body of race-based affirmative action has grown around the Waitangi Tribunal’s interpretation of the treaty, and the government’s response.

So how does the Waitangi Tribunal interpret the treaty? The tribunal says the use of the word “kawanatanga” in Article 1 of the treaty was an inadequate translation of the word “sovereignty”, and this led Maori to believe they “ceded to the Queen a right of governance in return for the promise of protection, while retaining the authority they always had to manage their own affairs”.

The Article 2 use of the word “rangatiratanga” was a promise to uphold the authority that tribes had always had over their lands and “taonga”, and by reading this article in conjunction with Colonial Office instructions to Governor Hobson, the tribunal concluded that the treaty intended “to ensure that each tribe retained sufficient land for its own purposes and needs”. The tribunal interprets Article 3 to mean: “the Crown promised to Maori the benefits of royal protection and full citizenship. This text emphasises equality.”

The tribunal has put itself in the bizarre position of saying the chiefs both ceded and retained sovereignty, which is nonsense. Since the tribunal has the exclusive right to interpret the texts, its version has become state orthodoxy and beyond scrutiny, while other views are merely opinions.

The tribunal’s view is at odds with what the chiefs said. During the Waitara war in 1860, Governor Thomas Gore Browne convened at Kohimarama a conference of chiefs excluding those fighting against the colonial government at that time. Gore Browne made 16 points. Point No. 4 said: “the chiefs who signed the Treaty of Waitangi ceded for them selves and their people to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of sovereignty that they collectively or individually possessed.” The chiefs spoke, and their comments were recorded. Two thirds of those chiefs explicitly agreed with the way Gore Browne described the treaty.

In short, the Waitangi Tribunal’s interpretation of the treaty is a message from fantasyland.

But it gets worse. On top of the tribunal’s bizarre state orthodoxy, just described, there are the treaty principles that came out of the imagination of a former Court of Appeal president. Justice Robin Cooke provided the first summary of the principles of the Treaty of Waitangi in the decision of that court in New Zealand Maori Council v Attorney-General in 1987. Cooke said that there were six principles:

(a) [T]he Queen was to govern and the Maoris were to be her subjects; in return their chieftainship and possessions were to be protected, but . . . sales of land to the Crown could be negotiated.’

(b) Because there was some inevitable potential conflict between those principles, both parties had a duty ‘to act reasonably and with the utmost good faith’ towards one another.

(c) The principles of the Treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy.’

(d) The Crown assumed a duty of protection towards Maori: ‘the duty is not passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable.

(e) The Crown has a duty to remedy past breaches: ‘the Crown should grant at least some form of redress, unless there are good grounds justifying a reasonable Treaty partner in withholding it – which would only be in very special circumstances, if ever.’

(f) The Crown had an obligation to consult with Maori in the exercise of kawanatanga. Justice Cooke was guarded, however, as to the practical extent of that obligation.

The Lange Labour government thought the politically correct thing to do was to create a formal statement of treaty policy. In 1989, the Justice Department issued a 15-page booklet titled “The Principles for Crown Action on the Treaty of Waitangi”. Included was an introductory statement by Prime Minister David Lange and the official English and Maori texts of the Treaty of Waitangi without preamble or postscript. The five principles are:

1. The Kawanatanga Principle -- The Principle of Government
The first article of the treaty gives expression to the right of the Crown to make laws and its obligation to govern in accordance with constitutional process. This sovereignty is qualified by the promise to accord the Maori interests specified in the second article an appropriate priority.

2. The Rangatiratanga Principle -- The Principle of Self-Management
The second article of the treaty guarantees to Maori the control and enjoyment of those resources and taonga which it is their wish to retain. The preservation of a resource base, the restoration of iwi self-management, and the active protection of taonga, both material and cultural, are necessary elements of the Crown’s policy of recognizing rangatiratanga.

3. The Principle of Equality
The third article of the treaty constitutes a guarantee of legal equality between Maori and other citizens of New Zealand. This means that all New Zealand citizens are equal before the law. Furthermore, the common law system is selected by the treaty as the basis for that equality although human rights accepted under international law are incorporated also.

The third article also has an important social significance in the implicit assurance that social rights would be enjoyed equally by Maori with all New Zealand citizens of whatever origin. Special measures to attain that equal enjoyment of social benefits are allowed by international law.

4. The Principle of Cooperation
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 and unity implies common purpose and community. The relationship between community and distinctive development is governed by the requirement for cooperation which is an obligation placed on both parties to 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.

5. The Principle of Redress
The Crown accepts a responsibility to provide a process for the resolution of grievances arising from the treaty. This process may involve courts, the Waitangi Tribunal, or direct negotiation. The provision of redress, where entitlement is established, must take account of its practical impact and of the need to avoid fresh injustice. If the Crown demonstrates commitment to this process of redress then it will expect reconciliation to result.

In the absence of official confirmation or denial, it seems that this has pretty much been the blueprint for government policy since 1989. Sir Geoffrey Palmer introduced these five principles to an AULSA conference on July 7, 1989, at a time when he was deputy Prime Minister, Minister of Justice and Attorney General.

So, what exactly is wrong with this treaty policy? I noted that the preamble and postscript to the treaty was missing from the booklet. By ignoring these, Palmer removed the treaty from its 1840 context and obscured its intent. The treaty came to be viewed as a set of commandments that could be applied to any situation at any time. His kawanatanga principle watered down sovereignty by linking it to a requirement to give priority to Maori interests. The rangatiratanga principle puts an obligation on the government to preserve for Maori a resource base and actively protect “taonga”, whatever they are.

Where did race-based affirmative action, such as special places for Maori at universities, scholarships for being Maori and so on, come from? I suggest that it came by way of Palmer’s principle of equality, introduced to redress what was perceived as serious imbalances in health education and housing, but which could be used in any situation where disadvantage was linked to race. There was “closing the gaps” under the Clark government, a policy that was howled down but which quietly continued.

His principle of cooperation imposes on the government the requirement to consult with Maori. His principle of redress imposes on the government the responsibility of setting up a process for resolving grievances to bring about reconciliation.

My point is that once the treaty officially becomes superior law, everything that has grown around it – the permanent Waitangi Tribunal, the tribunal’s separatist interpretation of the treaty, Cooke’s treaty principles, Palmer’s Crown action principles, and permanent race-based affirmative action -- is with us forever.

Who wants that?

Maybe Sir Geoffrey Palmer and some luminary from the Waitangi Tribunal would care to write a rebuttal.