Gareth Morgan: One-sided tribunal process recipe for ongoing tension

It is up to all New Zealanders to decide on constitutional change, not just those involved in the Waitangi Tribunal process. Picture / Mark Mitchell

The second in a four-part series of articles by Gareth Morgan about the future of the Treaty of Waitangi

Yesterday we saw how progress has been made on matters where both language versions of the Treaty say the same thing. Those areas are predominantly natural resources and cultural treasures.

However, an impasse arises over constitutional issues where either the two language versions of the Treaty conflict, or there's no consensus on any modern reinterpretation.

The main sticking point is the word rangatiratanga from the te reo version. In modern times, this word comprises three aspirations - greater self-determination, more political power and eradication of social and economic disadvantage. These aspirations are quite different to what's in Article 2 of the English version.

Thankfully this debate over who meant what, and what was and was not agreed in 1840, is irrelevant. The UN Declaration on the Rights of Indigenous Peoples, which we have signed up to, demands progress on these aspirations for all colonised indigenous peoples - Treaty or no Treaty.

We have a lot to learn from other countries about how to fulfil the aspirations of indigenous peoples. It's a no-brainer that the discussion on each of these aspirations must be held in a very open way, and must be understood by everyone if the solutions are to endure.

The Waitangi Tribunal process, with its cloister of academics, lawyers, and long and impenetrable reports, is certainly not the place.

The Treaty is a partnership, not a 50/50, a 60/40 or any fraction. It is a relationship and the tribunal is more and more playing the role of marriage counsellor. Trouble is, the counsellor only talks to one of the partners. Because of this, the creative interpretations of rangatiratanga emanating of late from the tribunal have raised resentment among non-Maori. How can those in the Treaty industry guide enduring solutions if they don't take non-Maori with them?

Of particular concern are recommendations granting Maori unique political rights. Granting any group unique political power is only legitimate if there is general agreement for those powers to be granted. It is not up to a bunch of lawyers immersed in the Treaty process. Constitutional change requires the consent of all New Zealanders. However, it's being conducted by stealth, far from the minds of the general public and most certainly without its consent.

The rights of citizenship are protected for all in Aotearoa New Zealand, and that includes equal political rights. Not only is this clear in Article 3 of both versions of the Treaty, it's also covered in Article 46 of the UN Declaration, and is implicit in the natural justice of a democracy. It's incongruous, then, that some within the Treaty industry think that it is fine to usurp people's rights to equal citizenship in order to "honour" the Treaty. It is not fine, it is an assault on civil rights and is sowing the seeds of discontent.

One example of this is the Local Body Act that enables councils to create Maori Wards and Maori Statutory Bodies with power over matters far broader than those covered in Article 2 - matters that affect all citizens. How can that be compatible with equal citizenship?

While Article 2 states Maori have special rights with respect to natural resources and cultural treasures, local councils deal with a lot more than this (eg setting bus fares, library fees). Why should Maori have more power than others over these matters? If there's an issue of the Maori voice never being heard and being thrown to the mercy of the majority, there needs to be evidence. The tribunal certainly hasn't produced it.

The co-governance model, which does confer unique rights upon Maori, is entirely appropriate for resources when granted as part of Treaty settlements. But extending this model beyond those areas carved out by Article 2 (such as local government or Parliament's Maori seats), is an important constitutional change and, frankly, illegitimate without widespread citizens' consent.

Further, granting unique political powers creates an incentive for Maori leaders to exaggerate differences between Maori and non-Maori. If they can't demonstrate what sets Maori apart, those political advantages might be taken away again. Such a situation weakens the connections Maori and non-Maori have with one another.

These connections matter. International evidence shows overwhelmingly that while ethnicity is important for individual wellbeing, it is no more important than the cross-societal connections a person has. Over-emphasising either at the expense of the other thwarts social and economic progress, for both the individual and society as a whole.

The process of constitutional reform demands the engagement of all New Zealanders, not just those inside the Treaty processes.

The series

Yesterday:
• Achievements of the Treaty process
Today:
• Limits of the Treaty process
To come:
• Better ways to deliver rangatiratanga for Maori
• One country, two peoples - practical policies