"Treaty obligations."
They are used to justify decisions involving public assets, public funding, governance arrangements, consultation requirements and government policy.
Yet increasingly, the phrase is used without a clear explanation of exactly what legal obligation is being referred to.
The latest example is the Government's decision to transfer ownership of eleven temporary homes, originally purchased following Cyclone Gabrielle, to Ōmāhu Marae. Māori Development Minister Tama Potaka reportedly said the transfer reflected the Government's Treaty obligations.[1]
Author’s Clarification: This article is not questioning the value of community partnerships, nor does it suggest that every Treaty-related initiative is unlawful or inappropriate. Governments are entitled to make policy decisions and establish partnerships they believe are in the public interest.
The issue examined here is one of transparency and accountability: when Ministers or government agencies refer to "Treaty obligations", the public should be able to clearly distinguish between obligations created by legislation, commitments arising from Treaty settlements, and policy choices made by elected governments.
There is nothing wrong with helping communities recover from disasters. Nor is there anything unusual about marae providing important support to families in need.
The question is a different one:
Which Treaty obligation required the transfer of these homes?
That question deserves a clear answer.
Because in a parliamentary democracy there is a fundamental difference between a legal obligation and a political choice.
Governments are elected to make policy decisions. They are entitled to set priorities and pursue policies they believe will benefit New Zealand.
However, a political choice should not be presented as though it is legally unavoidable.
If Parliament has imposed a legal obligation, Ministers should identify the legislation that creates it.
If a Treaty settlement requires a particular action, Ministers should identify that settlement.
If a decision is simply Government policy, then Ministers should be willing to defend it as a policy choice.
Those distinctions matter.
The phrase "Treaty obligations" has increasingly become a broad expression used across many areas of government.
Recent examples include the transfer of Cyclone Gabrielle homes to Ōmāhu Marae; iwi partnership arrangements in water management; Mana Whakahono ā Rohe agreements under resource management legislation; Māori commissioning and procurement initiatives within the health sector; and partnership arrangements involving the Department of Conservation.[2][3][4]
The same language also appears in Public Service Treaty capability programmes, education initiatives, NZ Transport Agency partnerships with mana whenua, and various cyclone recovery programmes involving iwi and marae.[5][6][7]
Some of these arrangements are based on legislation passed by Parliament. Some arise from Treaty settlement legislation. Others are government policy decisions.
Yet they are increasingly grouped together under the broad label of "Treaty obligations", which can give the impression that all such decisions are required directly by the Treaty itself.
That is where greater precision is needed.
The Treaty of Waitangi itself does not use the phrase "Treaty obligations." The modern expression has evolved through legislation, Treaty settlements, court decisions, government policy and public sector practice over several decades.
The obligations in the Treaty of Waitangi were:
Article 1 – The chiefs cede their chiefly authority (sovereignty) to the Queen (Crown).
Article 2 – The Crown guaranteed to New Zealanders the legal ownership of their physical possessions, with Māori landowners retaining ownership of their land and the Crown holding the right of pre-emption.
Article 3 – The Crown extended the rights and protections of British subjects to Māori.
This modern evolution has created a situation where the meaning of the phrase "Treaty obligations" is not always clear.
Does it mean a legal duty created by Parliament?
Does it mean an obligation arising from a Treaty settlement?
Does it mean a requirement to consult?
Or does it simply mean that the Government has chosen to adopt a particular policy approach?
These are very different things.
In a parliamentary democracy, governments derive their authority from Parliament and from the electorate. Parliament can create legal obligations. Governments can create policies.
Confusing the two risks weakening democratic accountability.
This is not merely a debate about words. The language used by Ministers shapes public understanding.
If every significant policy decision is described as a "Treaty obligation", citizens may reasonably assume that elected governments have little freedom to make different choices.
That is not how democracy works.
Governments can make different policy decisions. Future governments can change policies. But legal obligations created by Parliament or through settlement legislation remain.
The public deserves to know which is which.
Transparency requires Ministers to explain not only what they are doing, but the authority for doing it.
Whenever a Minister says a decision is required by "Treaty obligations", every journalist should ask one simple follow-up question:
"Can you identify the specific clause in the Treaty, the Act of Parliament, or the Treaty settlement that creates that obligation?"
The latest example is the Government's decision to transfer ownership of eleven temporary homes, originally purchased following Cyclone Gabrielle, to Ōmāhu Marae. Māori Development Minister Tama Potaka reportedly said the transfer reflected the Government's Treaty obligations.[1]
Author’s Clarification: This article is not questioning the value of community partnerships, nor does it suggest that every Treaty-related initiative is unlawful or inappropriate. Governments are entitled to make policy decisions and establish partnerships they believe are in the public interest.
The issue examined here is one of transparency and accountability: when Ministers or government agencies refer to "Treaty obligations", the public should be able to clearly distinguish between obligations created by legislation, commitments arising from Treaty settlements, and policy choices made by elected governments.
There is nothing wrong with helping communities recover from disasters. Nor is there anything unusual about marae providing important support to families in need.
The question is a different one:
Which Treaty obligation required the transfer of these homes?
That question deserves a clear answer.
Because in a parliamentary democracy there is a fundamental difference between a legal obligation and a political choice.
Governments are elected to make policy decisions. They are entitled to set priorities and pursue policies they believe will benefit New Zealand.
However, a political choice should not be presented as though it is legally unavoidable.
If Parliament has imposed a legal obligation, Ministers should identify the legislation that creates it.
If a Treaty settlement requires a particular action, Ministers should identify that settlement.
If a decision is simply Government policy, then Ministers should be willing to defend it as a policy choice.
Those distinctions matter.
The phrase "Treaty obligations" has increasingly become a broad expression used across many areas of government.
Recent examples include the transfer of Cyclone Gabrielle homes to Ōmāhu Marae; iwi partnership arrangements in water management; Mana Whakahono ā Rohe agreements under resource management legislation; Māori commissioning and procurement initiatives within the health sector; and partnership arrangements involving the Department of Conservation.[2][3][4]
The same language also appears in Public Service Treaty capability programmes, education initiatives, NZ Transport Agency partnerships with mana whenua, and various cyclone recovery programmes involving iwi and marae.[5][6][7]
Some of these arrangements are based on legislation passed by Parliament. Some arise from Treaty settlement legislation. Others are government policy decisions.
Yet they are increasingly grouped together under the broad label of "Treaty obligations", which can give the impression that all such decisions are required directly by the Treaty itself.
That is where greater precision is needed.
The Treaty of Waitangi itself does not use the phrase "Treaty obligations." The modern expression has evolved through legislation, Treaty settlements, court decisions, government policy and public sector practice over several decades.
The obligations in the Treaty of Waitangi were:
Article 1 – The chiefs cede their chiefly authority (sovereignty) to the Queen (Crown).
Article 2 – The Crown guaranteed to New Zealanders the legal ownership of their physical possessions, with Māori landowners retaining ownership of their land and the Crown holding the right of pre-emption.
Article 3 – The Crown extended the rights and protections of British subjects to Māori.
This modern evolution has created a situation where the meaning of the phrase "Treaty obligations" is not always clear.
Does it mean a legal duty created by Parliament?
Does it mean an obligation arising from a Treaty settlement?
Does it mean a requirement to consult?
Or does it simply mean that the Government has chosen to adopt a particular policy approach?
These are very different things.
In a parliamentary democracy, governments derive their authority from Parliament and from the electorate. Parliament can create legal obligations. Governments can create policies.
Confusing the two risks weakening democratic accountability.
This is not merely a debate about words. The language used by Ministers shapes public understanding.
If every significant policy decision is described as a "Treaty obligation", citizens may reasonably assume that elected governments have little freedom to make different choices.
That is not how democracy works.
Governments can make different policy decisions. Future governments can change policies. But legal obligations created by Parliament or through settlement legislation remain.
The public deserves to know which is which.
Transparency requires Ministers to explain not only what they are doing, but the authority for doing it.
Whenever a Minister says a decision is required by "Treaty obligations", every journalist should ask one simple follow-up question:
"Can you identify the specific clause in the Treaty, the Act of Parliament, or the Treaty settlement that creates that obligation?"
If there is a clear legal answer, the public has every right to hear it.
If there is no identifiable legal source, then New Zealanders deserve to know that they are looking at a Government policy preference rather than a legal necessity.
That distinction is not anti-Treaty, anti-Māori or anti-government.
It is simply a matter of democratic accountability.
Two words should never be enough to avoid explaining the law.
Footnotes.
1. Ōmāhu Marae temporary homes transfer
Hawke's Bay Today reported on the transfer of eleven temporary government homes used after Cyclone Gabrielle to Ōmāhu Marae, including comments from Māori Development Minister Tama Potaka regarding Treaty obligations.
Hawke's Bay Today – Ownership of 11 temporary government homes transferred to Ōmāhu Marae
2. Mana Whakahono ā Rohe – iwi participation arrangements
Mana Whakahono ā Rohe arrangements are provided for under the Resource Management Act 1991 and establish processes for iwi authorities and councils to agree how iwi participation will occur in planning and policy processes.
Resource Management Act 1991 – New Zealand Legislation
Ministry for the Environment – Mana Whakahono ā Rohe: Iwi participation arrangements
3. Resource management and iwi partnership arrangements
The Resource Management Act contains specific provisions relating to iwi participation arrangements, illustrating the distinction between a statutory requirement created by Parliament and a broader reference to Treaty obligations.
Resource Management Act 1991 – Mana Whakahono ā Rohe provisions
4. Health sector Māori commissioning and targeted initiatives
Health agencies have developed Māori-specific commissioning and engagement approaches as part of wider government policy settings relating to Māori health outcomes and Crown-Māori relationships.
5. Public Service Treaty capability and Crown-Māori relationships
Section 14 of the Public Service Act 2020 states that the role of the public service includes supporting the Crown in its relationships with Māori under Te Tiriti o Waitangi / the Treaty of Waitangi, including developing public service capability to engage with Māori.
Public Service Act 2020 – New Zealand Legislation
6. NZ Transport Agency / Waka Kotahi partnerships
NZ Transport Agency partnership arrangements with mana whenua are part of wider infrastructure planning approaches where agencies describe engagement with Māori as supporting Crown Treaty responsibilities.
7. Department of Conservation partnerships
The Department of Conservation has numerous iwi partnership arrangements involving conservation management, engagement and Treaty settlement relationships.
8. This article relies on the English text prepared by James Busby on 4 February 1840 and read to the assembled chiefs at Waitangi on 5 February 1840. It is cited to identify the Treaty text relied upon for the wording used in this article. The Treaty exists in both English and Māori texts, and historical debate continues regarding their interpretation and legal significance.
https://sites.google.com/site/treaty4dummies/home/the-littlewood-treaty
https://www.treatyofwaitangi.net.nz/ReadtheTreaty.html
Geoff Parker is a passionate advocate for equal rights and a colour blind society.
Geoff Parker is a passionate advocate for equal rights and a colour blind society.
10 comments:
Accountability, quite right. And, as those decisions are apt to create precedents, the public are certainly entitled to know the basis with some precision.
Geoff, I think most voters if polled would say the amount of money that has gone to maori is enough. The last settlements need to be completed then its finished. NO MORE !!!! We now need to invest for everyone.
Time for the coalition govt to acknowledge and accept the wishes of the NZ public
The only "Treaty Obligation" was that the native population (a fractured non sovereign collection of waring tribal groups whose most nefarious were preoccupied with murder and enslavement of the weakest) would become "obliged" to act civilly under law and order as "equal citizens" of the crown.
Of course, the leaders of those villainous groups hated that idea while the vast majority wanted sovereign protection.
Those tyrants and successive generations of those criminals have ever since resisted only for their own personal gain.
Anyone who tells you otherwise are full of lies and deceit or sadly deluded.
Compare the Omahu situation with our community.
Those temporary houses at Omahu are just over the stopbank from the river that burst causing the flooding.
What obligations were observed for the sixty houses demolished in quick time in our community ,much farther from the river ?Cat 3 . Get out.
Government has no obligation when it suits.
Please note that these "obligations " are one sided - no requirement for Maori to behave like good British citizens.
The Treaty has expired - end of story, end of largesse to Maori based on fictional obligations.
Geoff, thank you for this article. I think you are essentially correct. I have a few suggestions which do not alter your conclusion that the unspecified referential index “Treaty obligations” is insufficient to identify a reason for a course of action by government.
1) Constitutional arrangements, such as partnerships, need a mandate of the people, either as a specific election plank or by referendum.
2) The chiefs ceded their chiefly authority to the Crown in the sense that they came under the authority of the Governor and that British law applied to them. Their rangatiratanga remained intact but it was curtailed.
3) For the Third Article of the Treaty I suggest using the authoritative Kawharu translation which reads “rights and duties” rather than “rights and protections”. There is then a balanced arrangement with obligations going both ways.
@Barrie Davis - IMHO we should not be 'using' treaty translations or interpretations, we have the Busby 4th final draft. Re Kawharu > https://sites.google.com/site/treaty4dummies/home/the-kawharu-translation
Geoff, thank you for your response. In reply:
The Treaty was an agreement between the Crown and the chiefs who mostly had no English. They therefore could not have understood a draft in English and so did not agree to it. To be accurate, we need to use the Treaty in Maori and also to identify what the chiefs understood of it, mostly from their speeches on 5 February 1840.
Drafts in English are useful to understand the context, but they are not the Treaty.
Thank you also for the link to Kawharu's translation. Were you referring to Note 10 against 'rights and duties'? It says, "Māori at Waitangi in 1840 refer to Hobson being or becoming a ‘father’ for the Māori people," which identifies the chiefs understanding of the hierarchical nature of the agreement.
Geoff makes a really valid point. The term “treaty obligations” has come to conveniently mean anything local and national govt, maori and the radical leftists want it to mean. The same goes for “treaty principles”. The msm doesn’t ask these questions. Geoff is absolutely onto it. What treaty obligations Mr Potaka? Do enlighten us. Furthermore, if it’s really a matter of policy, we voters would be delighted if National could clearly delineate their policies with regard to maori and the nature of their relationship with the iwi leaders lobby group. Last election Luxon got away with implying policy that simply has not materialised. That won’t wash this time. Co-governance, sovereignty, the treaty, maori seats, the waitangi tribunal, tikanga and the law, coastal and freshwater rights - there’s a few areas to make crystal clear for starters. Please refrain from deceitful half measures (e.g. water done well still approves co-governance, racial preference is still rife in health, RMA detail remains in question) and weasel words like “co-management”. We’ve endured enough smoke, mirrors and bovine excrement. Truth and courage would be a refreshing change.
@Barrie Davis, both the Busby final draft and the Williams translation of that draft, that the chiefs signed, were read to all assembled at Waitaingi on the 5th Feb 1840 - no doubt there were many in attendance that were fluent in both languages and nobody said there was a difference. The fact that the Maori treaty was read out in Maori and that the chiefs debated it is evidence they understood it and therefore understood the Busby final draft.
Agreed, drafts in English are not the 'Treaty', do you deny that the Treaty was first drafted in English? - and neither is your Kawharu translation the treaty.
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