Alasdair Thompson: Lawmakers' plans to ignore Treaty require explanation

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Opinion

Maori have the right to be elected to reserved seats on the new Auckland council under the terms of the Treaty of Waitangi.

The Treaty is a fact of New Zealand life that cannot be put aside by opinion polls, personal belief, discrimination, ignorance or just because a political party has the votes in Parliament.

We cannot ignore it even though it has never been ratified as part of New Zealand law.

Since there are two versions of the Treaty, in Maori and in English, and a modern translation by the late Sir Hugh Kawharu, there is ample room for differences of opinion on how it should be interpreted.

Life has changed hugely too since 1840 when it was signed, with a plethora of challenges on how it should be interpreted, and in 1975 the Treaty of Waitangi Act gave the Waitangi Tribunal "the exclusive authority to determine the meaning and effect of the Treaty as it is embodied in both Maori and English texts".

Its decisions do not bind the Crown.

The Treaty has just three articles and a preamble.

There is also a letter from the British Crown setting out its intent, which makes clear that Maori were expected to know what they were agreeing to.

The letter said the Treaty's main purpose was to establish British governance over the rapidly increasing Pakeha population, many of whom were acting lawlessly.

To establish British law in New Zealand the Crown sought permission from Maori to govern everyone in the country by rule of law under which Maori would come to enjoy the same benefits enjoyed by all other citizens, but they would also retain their existing authorities and rights as exercised by Maori and no one else. Article 1 of the Treaty to Maori meant that Maori ceded their governance right to the Queen in return for protection, while retaining the authority they always had to manage their own affairs.

Article 2 uses the word rangatiratanga in the Crown's promise to uphold the authority that tribes always had over their lands and taonga; the things they treasure.

Article 3 promised Maori they would enjoy the same full protection as for all other citizens, and it's one all New Zealanders are happy to uphold.

Articles 1 and 2 in today's context means that, so far as governance (local or central) is concerned, Maori retain authority to manage their own affairs, lands, forests, fisheries, and the things they treasure.

On these grounds Maori should have a seat at the governance table of the Auckland council for these purposes.

The Treaty said Maori retained sole authority to make decisions on matters over which the Treaty gave them authority.

In practice, for example at Environment Bay of Plenty where Maori have reserved seats, they have tended to limit themselves to issues over which the Treaty gave them authority.

Maori usually share this authority with others on such governance bodies though strictly speaking they probably don't have to.

Other governance bodies where Maori have a seat give considerable weight to the Maori view in matters over which the Treaty gave them authority.

Parliament may be an exception as it has often moved into areas where Maori had reserved authority.

In fact, the reason for the reserved parliamentary Maori seats is to ensure Maori are at the central governance table, though they may often be democratically overruled on general matters.

But in Parliament Maori are sometimes overruled on matters over which the Treaty gave them authority, which is pretty poor if you believe in honouring contracts.

For representation on the Auckland council, Act seems unwilling to uphold Articles 1 and 2 of the Treaty.

National is not comfortable with this either, as it apparently does not want Maori to exercise their authority under the Treaty to manage their own affairs, land, forests, fisheries, and the things they treasure (e.g. language, waahi tapu, pounamu and so on) in this forum.

For Maori to be given authority over these things means more than just being consulted, and it means more than just giving advice about things over which Maori have authority.

Maori need to be at the governance table to exercise their authority.

Some may say Maori need to be at the governance table solely to exercise their authority over things Maori, and non-Maori should not be able to overrule them on these things.

If they were to be appointed to a council by mana whenua their say would be limited to matters over which they have authority.

But for Maori to have a say on matters over and above those where they have authority, they need to be elected as our Maori MPs are.

When our lawmakers, as trusted legislators, are going to ignore the Treaty, as they are for the Auckland council, they need to acknowledge that's what they are doing, and explain the reasons.

* Alasdair Thompson, a Pakeha, is a former mayor of the Thames Coromandel District who had a close working relationship with iwi.