DON BRASH: WHAT DID THE TREATY REALLY SAY?

Earlier today, I was sent a statement which read:

“On 9 July, an FTA [Free Trade Agreement] between Aotearoa and the European Union was signed. As part of our mandate, we prepared a Te Tiriti o Waitangi assessment of the FTA. We found that:

‘The Crown continues to exceed its authority as kawanatanga in the negotiation of trade agreements and deny Maori the right to exercise our rangatiratanga in the process, the content and the implementation of this FTA. Despite some improvements over previous agreements, the NZ EU FTA does not promote and protect the rights, interests, duties and responsibilities of Maori in a Te Tiriti-compliant manner and offers minimal, if any, concrete economic benefits to Maori business and workers.’

“Co-convenor Pita Tipene welcomed moves by the Crown, and trade officials, to start taking their obligations to Maori more seriously. ‘But we found they still have a long way to go to ensure the trade and trade related policy space delivers what was promised in Te Tiriti.’ "

The statement was issued by Nga Toki Whakarururanga which, the statement explained, is “mandated to conduct Tiriti o Waitangi assessments of free trade agreements under the Mediation Agreement between Maori claimants and the Crown in the Waitangi Tribunal Inquiry on the TPPA (Wai 2522). Despite this, the Crown has chosen to commission its own ‘independent’ assessment of the impacts for Maori’.”

I suppose I should not have been shocked because I’ve seen other statements which are based on a radically different understanding of what the Treaty of Waitangi actually intended.

The conventional understanding of the Treaty was that in Article I, Maori chiefs agreed to cede sovereignty to the Queen of England and her descendants forever; that in Article II, the Queen undertook to respect the property rights of Maori chiefs and all New Zealanders; and that in Article III, all New Zealanders would have the same rights and privileges as other British subjects.

And notes made about the many speeches made by Maori chiefs on 5 February, 1840, show that the chiefs understood that they were ceding authority to a higher authority, with several objecting that they were opposed to signing the Treaty because it gave the Queen (and Governor Hobson on her behalf) the power of life and death over them. The same understanding was reflected in the many speeches made by the chiefs assembled at Kohimarama in 1860. And again in later speeches, such as that by Sir Apirana Ngata a century later.

In a speech marking the centenary of the signing of the Treaty, Sir Apirana stated that

“Clause 1 of the Treaty handed over the mana and the sovereignty of New Zealand to Queen Victoria and her descendants forever. That is the outstanding fact today. That but for the shield of the sovereignty handed over to Her Majesty and her descendants I doubt that there would be a free Maori race in New Zealand today.”

Moreover, for most of our history since 1840 the overwhelming majority of New Zealanders have behaved as if the Crown had sovereignty over all New Zealanders, irrespective of who their ancestors were – employed as teachers, nurses and Police officers, serving in the armed forces, serving in the judiciary and as Members of Parliament, travelling on New Zealand passports, accepting social welfare and health benefits from the state, and so on.

But in recent years, history has been rewritten. Nga Toki Whakarururanga is a classic example of it. In the document summarizing their objection to the FTA with the EU, they describe their interpretation of the Treaty:

“Article 1: Government exercises authority over its own and any authority positively delegated by Maori, subject to the obligation to recognize rangatiratanga and ensure the protection of Maori rights, interests, duties and responsibilities.

“Article 2: Rangatira have unfettered ongoing power and responsibility to ensure the exercise of Maori authority collectively over their own affairs and resources in a manner consistent with tikanga Maori.

“Article 3: Maori and the Crown’s people have parity and equity in rights and outcomes, meaning equal rights to define and pursue aspirations according to a people’s fundamental principles, laws and beliefs.

“4th Article: guarantees the active protection of philosophies, beliefs, faiths and laws.”

This is a radically different Treaty than the one signed by the chiefs in 1840. It is more consistent with the He Puapua report which the Labour/New Zealand First Government commissioned in 2019, though held under wraps until after the 2020 election and apparently not shared with the New Zealand First part of the coalition.

It envisages two quite separate groups of people living in New Zealand – one group has some Maori ancestry and the other group has none. And the two groups will, it seems to be envisaged, lead a kind of parallel existence. Reference in Article 3 of this version of the Treaty is to “parity and equity in rights and outcomes”, and it is this interpretation which may lie behind the recent assertion that the Treaty somehow guaranteed that Maori life expectancy would be the same as that of other New Zealanders, irrespective of dietary habits, smoking habits, and housing arrangements.

But as David Lange said in a 2000 speech,

“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.”

At a time when Maori representation in Parliament has never been higher, it seems strange in the extreme that we still have anybody, let alone a semi-official body like Nga Toki Whakarururanga, complaining that they could find “no Maori role in any decision-making [related to the FTA], and minority presence in ‘civil society’ and stakeholder bodies”.

This is a fundamental constitutional issue. Yes, the cost of living is a very serious issue, as is the state of the health system, the serious degradation of our schools, and the increasing prevalence of crime. But if after the election we don’t sort out whether we are one country with people of many different backgrounds and ethnicities, all with equal rights, or alternatively a country permanently divided between those with a Maori ancestor and those without, we have absolutely no future.

Don Brash

12 July 2023