Sunday, February 3, 2013

Elizabeth Rata: The treaty is not New Zealand’s founding document

I was surprised to read in Deborah Coddington’s recent Herald column that the Treaty of Waitangi is New Zealand’s founding document. Of course some New Zealanders mistakenly believe that is the case. Where the belief becomes a problem is when a member of the government appointed and funded Constitutional Advisory Panel such as Deborah Coddington states that this is so. In describing the treaty as our founding document she has jumped the gun somewhat in anticipating the Panel’s recommendations about the status of the treaty. And she is certainly premature in gauging New Zealanders’ opinions on the subject.

Attempts by successive governments since the 1987 treaty re-interpretation as a ‘partnership’, including the expensive 2006 Treaty Roadshow, seemed to have been based on the misguided assumption that if New Zealanders knew about the treaty then they would accept its increasing inclusion in the nation’s political system. Deborah Coddington appears to think along similar lines.

However the rejection of treaty politics by many is not from ignorance but from being only too aware of the profoundly undemocratic nature of political arrangements proposed by Treaty activists within all levels of government. This rejection of treaty politics has been the case for some time, despite the Road Show and an education system dedicated to promoting a treaty-based biculturalism. Following two decades of biculturalism a 1999 survey of attitudes to the treaty and the Waitangi Tribunal found that the treaty ‘is a major point of division within the country’. Only 5 percent of those surveyed ‘think that the Treaty should be strengthened and given the full force of law’. ‘About 34 percent want the Treaty abolished’. Ten years later, and despite considerable promotion, the Human Rights Commission’s annual progress report on treaty issues for 2009 found declining numbers who agree that the treaty is the country’s founding document. Since 2009, claims for public resources such as the foreshore and seabed and fresh water, along with claims for political control over those resources, has fuelled this widespread disquiet.

The entrenchment of attitudes opposing the inclusion of the treaty in our governing arrangements is not based on a Maori non-Maori division.  There are Maori and non-Maori of various ethnic backgrounds and cultural affiliations who are troubled by the implications of treaty politics for democracy. I consider it more accurate to put the dividing line between those who can be loosely grouped under the term ‘biculturalists’ and those who maintain that ‘we are New Zealanders’. For the latter New Zealand citizenship comes before ethnicity, cultural affiliation or religious belonging, although commitment to those identities may still be considered important. What guarantees a person’s political and legal status is what matters and that guarantee comes from being a New Zealand citizen, not from being a member of an ethnic group.

Biculturalists have morphed from the inclusive biculturalism of the early 1980s with its idealistic commitment to difference in unity to a separatist iwi politics. The first stage of iwi politics began in the late 1980s with the re-interpretation of the Treaty as a so-called ‘partnership’. This saw the insertion of partnership principles into almost all New Zealand legislation. We are currently in the second stage – one that is hotting up with proposals before the Hauraki Gulf Forum for ‘co-goverance’ of the Gulf. This will cement in the so-called treaty partnership and justify a place for the treaty within a New Zealand Constitution.

Those who object to this, and I am one of these, do so for two strong reasons. Co-governance establishes a political system where the power and authority of one party, iwi, is unchallengeable. That party is not appointed by the people and is not therefore accountable to the people. The undemocratic nature of co-governance is made worse by the criteria for belonging to the treaty partner. Membership of iwi is fixed in genetic ancestry. Unlike democracy which allows for all comers, a group whose membership is fixed in the past has  no room for newcomers. 

The treaty partnership model of co-governance will subvert the fundamental principles of democracy.  Democracy is a political system of equality no matter what your heritage, and a system of accountability no matter what your race or religion. As equal citizens each of us can call our political leaders to account. If iwi as treaty partner was co-governor we could not do so.

This makes the matter of the Treaty’s status of great importance to us all. To simply assert that the Treaty is our founding document, as Deborah Coddington has done, is not good enough. Not only are there other contenders for the status of founding document (if we want one); the 1852 Constitutional Act springs to mind, but the strategic use of the Treaty in iwi politics to undermine democracy at all levels of our political system means that the treaty is tainted as a symbol of national unity.

Dr Elizabeth Rata is an Associate Professor of Education and a member of the Independent Constitution Review Panel. This article was first published in the Herald in December.


Hone said...

The idea that a maori can get representation in the maori side of politics, or even benefit from the treaty gravy train, is a myth, only some in priveledge situations can. My mother in law is part maori, and we have investigated if she can participate in her tibal payments. She needs to visit the marae, suck up to the elders,get accepted for her history, before she would even be accepted by the tribe. Without any birth certificate, no one knows her history, so that is the end of that!

Anonymous said...

1835 Declaration of Independence, the real founding document that will be avoided at all costs.

Kiwiwit said...

The real founding of New Zealand was Hobson's declaration of sovereignty on 21 May 1840 that established New Zealand as a Crown Colony. Prior to that, there was no New Zealand in any legal sense. Even the 1835 declaration was only signed by 34 (eventually 52) northern chiefs so can hardly be said to be a founding document for the country as a whole.

The Treaty signing on 6 February 1840 (by 43 chiefs) was simply a precursor to Hobson's declaration and a means of legitimizing it (not that that was required in any international legal sense).

Anonymous said...

"1835 Declaration of Independence, the real founding document" my bum!

In 1834 James Busby, the official British Resident in New Zealand, drafted a document known as the Declaration of the Independence of the United Tribes of New Zealand which he and 34 northern Māori chiefs signed at Waitangi on 28 October 1835.

By 1839, this had been endorsed by 52chiefs, all residing north of the Firth of Thames. Since upwards of 500 chiefs signed the Treaty of Waitangi (and a substantial minority did not), this is not even even remotely evidence of a pre-Treaty Maori nation state.

The relative handful of chiefs who the Declaration pledged to meet annually at Waitangi each year to frame laws, and invited the southern tribes of New Zealand to "lay aside their private animosities" and join them.

Neither of these fine objectives were achieved. Inter-tribal feuds and jealousies meant not only that non-signatories remained determinedly aloof, but the signatory chiefs never met once, nor framed a single law.

The Declaration has been rightly described as "a paper pellet to be brandished at the French" and was coined by Busby primarily to forestall what was feared at the time to be an impending French takeover.

It has more recently been revived by Ngapuhi wankers as lame attempt to get out of obeying the laws of the land relating to the payment of property rates and dog taxes, poach commercial quantities of wet fish and paua, and issue their own passports and residency permits to gullible foreigners etc etc.

Advocates of the primacy of this document, or indeed anyone wanting to attach any weight to it at all, will have to do a whole lot better than that!

Anonymous said...

I believe that the Treaty Document is valid. The large question is not the validity of the document, rather when the Descendants of the Signatories are going to stand and hold to its tenets: ie when are they going to start "keeping the law" as the treaty states "if the law is the same for all people regardless of race..". All we hear is one sided. The outcome/s of the Waitangi Corporation rulings is payouts for the select few 'privileged' Maori, and beggar all for the majority.
NZ, the country as your politicians want it.

Ray S said...

Unfortunately things wont change until either the white majority or the disenfranchised lower echelons of maori stand up and say enough.
I suspect the white majority will meekly cede everything maori want and it wont be until all those calling themselves maori realise what is happening will there be any action against the maori elite.
It used to be called tribalism.

Polly Martin said...

I don't believe that iwi leadership is unchallengeable. My understanding is that if an iwi leader is perceived by those led as not upholding their collective mana - that their right to lead is severely undermined and often ignored. There is nothing more shameful to be in that situation. I do wonder whether Maori are aware both of their right to question and challenge but also how to go about it effectively. Hone: Developing relationships, connecting and contributing to ones marae is often the most effective way to be able to participate in any collective processes. And I would consider that to be a privilege as well as a responsibility. Unfortunately - those who cannot whakapapa due to a number of reasons are vulnerable to being ignored and your mother is one of many in that situation. And then there is the ugly reality of 'brown crown' that exists in a number of iwi where some maori oppress others or keep them ignorant as a way of maintaining power. However that type of behaviour is just as present in a democracy as it is in tribalism.