Gary Judd KC: Treaty is a bald agreement, anchored in its time and place

What [democratic government] cannot do is acknowledge the existence of a separate sovereignty. As soon as it does that, it isn’t a democracy. We can have a democratic form of government or we can have indigenous sovereignty. They can’t coexist and we can’t have them both….

The treaty itself contains no principles which can usefully guide government or courts.

The Helen Clark government took office 10 November 1999 with Clark as Prime Minister and Michael Cullen as Minister of Finance.

A little over a year later, on 18 November 2000, Labour Prime Minister from 1984 to 1989, David Lange, delivered The Bruce Jesson Foundation’s 2000 Bruce Jesson Memorial Lecture. See David Lange 2000.

The last part of the speech, reproduced below and containing the above extracts, is required reading for today’s Labour politicians whose reckless and unprincipled actions and words whilst they were in government (the words continue in lockstep with the Greens and Te Pati Māori) added fuel to a fire lit in earlier years.

Here I come back to the government’s aim of closing the gaps between rich and poor, and the way in which it was overtaken in public understanding by the subsidiary goal of closing the gaps between Maori and the rest. I don’t describe the second goal as lesser than the first out of any wish to minimise the effect of growing inequality on Maori people. What I mean is that from the point of view of a democratic government, the first goal can encompass the second, but the second can’t encompass the first. If the government’s goal is to reduce inequality, it follows that it will do whatever it can to improve the position of Maori.

How goals like this are achieved is the whole business of politics. It is not particularly easy politics, because the racial element always makes politics difficult, however you handle it. In this country there is the history of dispossession and displacement. There is the growing number of people who identify as Maori. There is the growing number of those who wish to wield political power as, and on behalf, of Maori, and increasingly have the means to do so. These are challenges to the political process, but they are not insurmountable.

Democratic government can accommodate Maori political aspiration in many ways. It can allocate resources in ways which reflect the particular interests of Maori people. It can delegate authority, and allow the exercise of degrees of Maori autonomy. What it cannot do is acknowledge the existence of a separate sovereignty. As soon as it does that, it isn’t a democracy. We can have a democratic form of government or we can have indigenous sovereignty. They can’t coexist and we can’t have them both.

This brings me to the preoccupation of successive governments with the Treaty of Waitangi.

It is with no disrespect for Maori feeling for the treaty that I have to say it means nothing to me. It can mean nothing to me because it has nothing to say to me. When I was in office I understood that the government had succeeded to certain legal and moral obligations of the government which signed the treaty, and that in so far as those obligations had not been met it was our responsibility to honour them. But that is the extent of it.

The treaty cannot be any kind of founding document, as it is sometimes said to be. It does not resolve the question of sovereignty, if only because one version of it claims one form of sovereignty and the other version claims the opposite. The court of appeal once, absurdly, described it as a partnership between races, but it obviously is not. The signatories are, on one side, a distinctive group of people, and on the other, a government which established itself in New Zealand and whose successors represent all of us, whether we are descendants of the signatories or not. The treaty cannot even resolve the argument among Maori themselves in which one side maintains that you’re a Maori if you identify as such, and the other claims that it’s your links to traditional forms of association which define you as Maori. [A repeated “that” after “maintains” has been omitted.]

As our increasingly dismal national day continues to show, the treaty is no basis for nationhood. It doesn’t express the fundamental rights and responsibilities of citizenship, and it doesn’t have any unifying concept. The importance it has for Maori people is a constant reminder that governments in a democracy should meet their legal and moral obligations, but for the country taken as a whole, that is, and must be, the limit of its significance.

Here I come to the dangers posed by the increasing entrenchment of the treaty in statute. The treaty itself contains no principles which can usefully guide government or courts. It is a bald agreement, anchored in its time and place, and the public interest in it is the same as the public interest in enforcing any properly-made agreement. To go further than that is to acknowledge the existence of undemocratic forms of rights, entitlements, or sovereignty.

The treaty is a wonderful stick for activists to beat the rest of us with, but it could never have assumed the importance it has without the complicity of others. It came to prominence in liberal thought in the seventies, when many who were concerned about the abuse of the democratic process by the government of the day began to see the treaty as a potential source of alternative authority. It’s been the basis of a self-perpetuating industry in academic and legal circles. Many on the left of politics who sympathise with Maori aspiration have identified with the cause of the treaty, either not knowing or not caring that its implications are profoundly undemocratic.

I don’t think it any coincidence that the cause gained momentum in the eighties and nineties, when the government retreated from active engagement in economy and society and in doing so weakened the identification between government and governed which is essential to the functioning of a democracy. It isn’t in the least surprising that undemocratic ideas flourish when democracy itself seems to be failing.

I think that in practice the present government will find it difficult to draw back from its public commitment to the treaty, and that this will almost certainly rob it of its chance to build a more cohesive society and a more productive economy. It has, in the public mind if nowhere else, adopted a goal whose pursuit is inevitably divisive, and it is spending its political capital on it almost by the hour. The result, if the worst comes to the worst, will be a fractured society in which political power will be contested in ways beyond the limits of our democratic experience.

This is the sum of it. In practical terms the government has done very little to change what it says it rejects about the last fifteen years, and very little to equip itself with the tools it needs to build an alternative. What it has done may be the groundwork for greater change in the future, or it may be tinkering. It’s impossible to be sure. The government is diffident in its language and has not yet succeeded in associating itself with any unifying idea. On the contrary, it has become too clearly associated with an undemocratic and divisive goal which is likely to deny it more than one term in office. The conclusion which then must be drawn is that the last election has changed very little, and that democratic values are still at risk here.

The evidence does not support everything Lange said, but his general theme was correct. “It is a bald agreement, anchored in its time and place, and the public interest in it is the same as the public interest in enforcing any properly-made agreement. To go further than that is to acknowledge the existence of undemocratic forms of rights, entitlements, or sovereignty.”

The Treaty may not “resolve” sovereignty (subsequent proclamations and the establishment of a legal system with courts to determine disputes did that), but it undoubtedly recorded consent to the British assuming governance of the country. It is a simple agreement by which the chiefs acknowledged the British government’s right to govern New Zealand (i.e., to be sovereign) in return for that government’s protection of the chiefs, the tribes and the people—in their property, and by conferring on them the rights and privileges of British subjects.

“The treaty itself contains no principles which can usefully guide government or courts,” Lange accurately stated.

In the real world, there are no principles of the Treaty. They exist only in a fantasy world created by the 1972-1975 Labour government’s Treaty of Waitangi Act. The magical possibilities of this fantasy world have expanded since then to the point where ordinary New Zealanders feel threatened by those who would claim on the basis solely of their identity, or who they identify with, that they have a superior place, and that democracy must be relegated to a subordinate position.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.