Professor Carwyn Jones warns that the debate over Te Tiriti goes “to the heart of Aotearoa’s constitutional future”. He is right about one thing: this is a constitutional debate. But that makes the question of who gets to determine that future extremely important.
The problem is that Jones presents a particular modern interpretation of Te Tiriti as though it provides an established constitutional framework for New Zealand today. It does not.
Te Tiriti was signed in 1840. It was not a modern constitution, nor did it establish a bicultural state, co-governance, separate systems of political authority, or a permanent Māori political veto over government.
The ‘Official’ English text of Article 1 is explicit: the rangatira ceded to the Crown “all the rights and powers of Sovereignty”. Article 2 guaranteed Māori “full exclusive and undisturbed possession” of their lands, estates, forests, fisheries and other properties. Article 3 extended to Māori the Queen’s protection and the rights and privileges of British subjects.
There are legitimate historical arguments over the differences between the English and Māori texts, particularly over kāwanatanga and tino rangatiratanga. But acknowledging those differences does not magically transform the Treaty into a constitutional document establishing permanently shared sovereignty between Māori and the Crown.
Nor can modern Treaty “principles” simply be treated as though they were written into the 1840 agreement. Many of the principles now invoked by courts, government departments and public institutions are later judicial and political developments, particularly following the Treaty of Waitangi Act 1975 and the landmark 1987 Lands case.
That distinction matters enormously.
Jones describes Te Tiriti as an enduring “framework” or “blueprint” for contemporary government. But who wrote the blueprint? The signatories in 1840 — or generations of lawyers, academics, tribunals, politicians and judges interpreting the document long after the fact?
That is the constitutional question being avoided.
New Zealand is a representative democracy, where citizens elect Parliament to make the laws by which the country is governed. If fundamental constitutional changes are proposed — including changes to the distribution of political authority between citizens, iwi and the Crown — they should not emerge incrementally through judicial interpretation, administrative practice or increasingly expansive readings of Treaty principles.
They should be openly debated and democratically authorised.
There is also a fundamental difference between recognising Māori history, protecting property rights, addressing genuine historical wrongs and accepting the proposition that ethnicity should determine political authority today.
Those are not the same thing.
A country can acknowledge the Treaty, honour legitimate settlements and recognise Māori culture while still maintaining one Parliament, one law, equal citizenship and democratic accountability to every New Zealander.
Indeed, that is precisely why the current debate matters.
Calling opposition to expanded Treaty-based constitutional arrangements an attack on Te Tiriti does not settle the argument. Nor does describing tino rangatiratanga as an enduring constitutional authority answer the obvious question: what are its legal limits, who exercises it, over whom, and where does it sit in relation to the sovereignty of Parliament?
Those questions cannot be answered by slogans.
If New Zealand is genuinely contemplating a new constitutional settlement, then let us have the courage to put the entire proposition before the public — clearly, honestly and without pretending that a contested modern interpretation was somehow embedded wholesale in the Treaty of 1840.
The constitutional future of New Zealand belongs to all New Zealanders. It should be decided by New Zealanders — not quietly constructed for them.
Geoff Parker is a passionate advocate for equal rights and a colour blind society.
The ‘Official’ English text of Article 1 is explicit: the rangatira ceded to the Crown “all the rights and powers of Sovereignty”. Article 2 guaranteed Māori “full exclusive and undisturbed possession” of their lands, estates, forests, fisheries and other properties. Article 3 extended to Māori the Queen’s protection and the rights and privileges of British subjects.
There are legitimate historical arguments over the differences between the English and Māori texts, particularly over kāwanatanga and tino rangatiratanga. But acknowledging those differences does not magically transform the Treaty into a constitutional document establishing permanently shared sovereignty between Māori and the Crown.
Nor can modern Treaty “principles” simply be treated as though they were written into the 1840 agreement. Many of the principles now invoked by courts, government departments and public institutions are later judicial and political developments, particularly following the Treaty of Waitangi Act 1975 and the landmark 1987 Lands case.
That distinction matters enormously.
Jones describes Te Tiriti as an enduring “framework” or “blueprint” for contemporary government. But who wrote the blueprint? The signatories in 1840 — or generations of lawyers, academics, tribunals, politicians and judges interpreting the document long after the fact?
That is the constitutional question being avoided.
New Zealand is a representative democracy, where citizens elect Parliament to make the laws by which the country is governed. If fundamental constitutional changes are proposed — including changes to the distribution of political authority between citizens, iwi and the Crown — they should not emerge incrementally through judicial interpretation, administrative practice or increasingly expansive readings of Treaty principles.
They should be openly debated and democratically authorised.
There is also a fundamental difference between recognising Māori history, protecting property rights, addressing genuine historical wrongs and accepting the proposition that ethnicity should determine political authority today.
Those are not the same thing.
A country can acknowledge the Treaty, honour legitimate settlements and recognise Māori culture while still maintaining one Parliament, one law, equal citizenship and democratic accountability to every New Zealander.
Indeed, that is precisely why the current debate matters.
Calling opposition to expanded Treaty-based constitutional arrangements an attack on Te Tiriti does not settle the argument. Nor does describing tino rangatiratanga as an enduring constitutional authority answer the obvious question: what are its legal limits, who exercises it, over whom, and where does it sit in relation to the sovereignty of Parliament?
Those questions cannot be answered by slogans.
If New Zealand is genuinely contemplating a new constitutional settlement, then let us have the courage to put the entire proposition before the public — clearly, honestly and without pretending that a contested modern interpretation was somehow embedded wholesale in the Treaty of 1840.
The constitutional future of New Zealand belongs to all New Zealanders. It should be decided by New Zealanders — not quietly constructed for them.
Geoff Parker is a passionate advocate for equal rights and a colour blind society.
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