In December, 12 people were arrested after members of the protest group Te Waka Houroa defaced the English version of the Treaty of Waitangi displayed at the Museum of New Zealand Te Papa Tongarewa. The group argues that the English-language version of the document, signed between Māori chiefs and a representative of the British crown in 1840, has no legal validity, a view supported by many historians and legal academics.
The protest came two weeks after a series of treaty-based policy announcements in the coalition agreement for the newly formed National-Act-New Zealand First government. Act will draft a bill calling for a binding public referendum reinterpreting the treaty and its principles, and New Zealand First has secured a review of all legislation – exempting treaty settlements – referring to the principles of the treaty. This review will replace any references to these principles “with specific words relating to the relevance and application of the treaty, or repeal the references”.
The government will also stop all work on “He Puapua”, the Ministry of Māori Development’s report on steps towards self-determination. It will legislate English as an official language and ensure that government departments are primarily identified by their English names.
Labour MP Willie Jackson warned media that Māori would “go to war” over the proposed policies, and Te Pāti Māori organised a series of nationwide protests described by co-leader Rawiri Waititi as “an activation”.
Say what you like
Does New Zealand have the most ambiguous constitutional document in the world? In 1972, the historian Ruth Ross argued that due to the contradictory and chaotic nature of the treaty and its signing, the document had come to say “whatever we want it to say”. Andrew Geddis is a professor of constitutional law at the University of Otago, and he’s reluctant to concede ours is the worst – although he admits no other contenders come to mind. This “leaves us arguing over not only the meaning of the broad and relatively ambiguous phrases used, but also which version of the document ought to be treated as ‘the right one’.”
The Treaty of Waitangi/Te Tiriti o Waitangi was written in haste over a three-day period in response to the establishment of new colonies by France and the New Zealand Company – both operating outside the jurisdiction of the British crown. The treaty is brief – fewer than 600 words – written in two different languages using terms that don’t seem to reconcile. After the initial signing, different versions again were circulated around the country for iwi and hapū who weren’t at Waitangi; the English version was lost and has been reconstructed from copies. As Geddis notes, “If you were consciously setting out to create a definitive constitutional document you would, one, put a lot more detail into it, and two, be a lot more careful to ensure that versions in different languages correlate.”
Five years after its signing, the signatories to the treaty were at war over the very issues it was supposed to resolve: who owned the land and who ruled the nation? Seven years into hostilities, the British Parliament passed the 1852 New Zealand Constitution Act, granting self-government to the colony of New Zealand to be effected through a newly created parliament. The new constitution contained no references to the treaty. Instead it loftily declared, “It may be expedient that the laws, customs and usages of the aboriginal or native inhabitants of New Zealand, so far as they are not repugnant to the general principles of humanity, should for the present be maintained for the government of themselves.”
The conflict we now refer to as the New Zealand Wars ended in 1872 with large-scale land confiscations – “punishment for rebellion” – that were breaches of the treaty under any interpretation. In a case before the Supreme Court in 1877, the Chief Justice found the Treaty of Waitangi was signed “between a civilised nation and a group of savages” and so had no legal standing. It was a “simple nullity”. In 1884, the second Māori king, Tawhiao, travelled to London to meet Queen Victoria to confirm her commitment to the treaty signed in her name. Her Majesty refused to grant an audience. By 1920, only 8% of New Zealand land remained in Māori ownership.
Test of time
By 1987, the neoliberal revolution was in full swing. The Labour government was preparing to sell many of the state’s assets – including its land, much of which had either been confiscated from Māori in breach of the treaty or gifted by Māori to the crown on the understanding it would always remain in crown ownership. The Waitangi Tribunal had been created in the mid-1970s to redress confiscation of land in violation of the treaty but it could only return state-owned land – and now huge tracts of it were about to transfer into private hands outside the tribunal’s remit.
New Zealand Māori Council v Attorney-General, referred to by generations of undergraduate law students as “the lands case”, was a landmark decision in which the Court of Appeal ruled that the principles of the treaty would be a fundamental basis of New Zealand law, prohibiting the state from acting “in a manner inconsistent with its principles”. Although the treaty was written in different languages and made no provision for how its articles could function in a modern legal system, the Court of Appeal judges decided certain principles could be derived from the dual versions of the document and they could be applied in modern legal and political contexts.
The court derived six principles, the most important of which were the crown’s right to govern, a partnership between Māori and the crown, the importance of good faith between the partners and the importance of redress when the crown has breached the treaty. But many different versions of the principles have been put forward over the years – and in all that time Parliament has declined to define them. Instead it has adopted an approach of “strategic ambiguity”: the principles are for the courts to explore, to work out on a case-by-case basis as new problems and disputes arise.
This might seem like a strange way to run a country, but Geddis points out there have been 50 years of Waitangi Tribunal developments on the principles and 38 years of judicial development. “So it’s not as if treaty principles are just whatever you, or an individual judge, want them to be – they have been given a particular content and shape.”
He also notes that our laws are rich with ambiguous terms. “Consider the term ‘reasonable’. It appears some 248 times in the Search and Surveillance Act 2012 in relation to when the powers in that legislation can be used. But what does it actually mean?”
Ambiguity is often deliberate, Geddis says. “Because we recognise that there are lots of areas where you simply can’t, in advance, specify exactly what must happen in every situation. Rather we have guiding principles or general factors to shape the decisions in this area in light of the specific circumstances of the case.” Both National and Labour have long supported this approach, routinely voting for legislation that references the principles without defining them. But it has its critics – and one of the principles’ longest, bitterest foes is Winston Peters, the present deputy prime minister.
In 2005, New Zealand First introduced a bill intended to “remove all references to the undefined and divisive term ‘the principles of the Treaty of Waitangi’ from legislation”. It had torn at the social fabric of the nation, Peters charged, and the lack of any definition for the principles “has created legal chaos as activist judges, bureaucratic meddlers and treaty lawyers have taken advantage of this void”. The bill was voted down on its second reading but in the new government’s coalition agreement, Peters has been promised a “comprehensive review” of all mentions of treaty principles in legislation.
Most criticism of the coalition has focused on Act’s call for a referendum but Peters’ review could overturn 40 years of treaty jurisprudence. His office did not respond to requests for comment.
Strange bedfellows
NZ First has unlikely allies in its campaign against the treaty principles: historians, legal scholars, left-wing intellectuals and activists have also taken up arms against them. The principles are a compromise between the two translations of the treaty. Lightly referencing the land rights-defending lawyer in the Aussie comedy The Castle, Geddis describes them as “the vibe of the thing”.
They argue that most interpretations of common and international law find the te reo version – Te Tiriti o Waitangi – as the valid form of the agreement. There shouldn’t be any compromise, or any principles – ambiguous or otherwise: the English document is simply irrelevant.
In 1975, historian Sir Hugh Kawharu provided an English translation of the te reo version of the treaty. His translation pointed to 11 key textual differences, the most important of which were the substitution of the term “sovereignty” in the English version for “government” in the te reo translation, and the crown’s commitment to protect “the unqualified exercise of their chieftainship”. The rangatira would have seen “government” as the right to pass laws governing British settlers, while sovereignty – the undisputed and undivided rulership of the land – remained in their possession. The crown cites the treaty as a justification of its legitimacy to govern – a legitimacy that the te reo translation explicitly denies.
2040 will mark the bicentenary of the signing of the treaty. In 2019, Labour’s minister of Māori development Nania Mahuta, in response to the UN Declaration on the Rights of Indigenous Peoples, commissioned a working group to envision what a government focused on Māori self-determination could look like. The group comprised officials and prominent Māori academics and their report came to be known as He Puapua – “the breaking of the wave”. (It was signed off by the Cabinet Māori-crown relations committee and in 2019, both Peters and his deputy, Shane Jones, were members of that committee. Peters now claims he was tricked by Labour.)
The report was heavily influenced by the doctrine of iwi and hapū sovereignty. Its recommendations were broad, spanning culture, land reform, legal reform and – most controversially – political reform. It endorsed a model of “constitutional transformation” in which the current parliamentary democratic government of New Zealand is replaced by separate spheres of authority: a rangatiratanga sphere of Māori governance, a kāwanatanga sphere of crown governance – in which Māori also participate – and a joint sphere in which Māori and the crown negotiate areas of mutual concern. This would be accompanied by the large-scale transfer of crown lands and waters, including coasts, foreshore and seabed rights, back to Māori ownership.
The government buried the report, regarding its vision for 2040 as an academic fantasy. Te Pāti Māori co-leader Debbie Ngarewa-Packer notes that her party has set its sights on the creation of a Māori Parliament, a transformation she feels is inevitable due to demographic shifts. “70% of our Māori population are 40 years old or younger and by 2040, a third of children will be Māori.”
Stop-go governance
In 2010, the National government reached a treaty settlement with Waikato-Tainui. The formation of the Waikato River Authority was part of the agreement: the new entity would protect and manage the river and its resources. Its board was made up of a combination of iwi and local government representatives. This model was known as “co-management” and its introduction passed by largely unnoticed, as did the other co-management arrangements negotiated by the Key government and its treaty minister Christopher Finlayson.
By the time the second term of the Ardern Labour government came around, co-management had been rebranded as “co-governance”, and instead of confining it to local environmental assets, Labour planned to use it to run the new mega-entities that would manage water infrastructure across the country. This term was also applied to Te Aka Whai Ora –the Māori Health Authority, a newly created body that would work alongside the Ministry of Health and Te Whatu Ora and set health policy for the nation.
In a Listener column a year ago, Finlayson enumerated the many political failures that contributed to the bitter and divisive nature of the co-governance debate. It was simply co-management, he explained – a model that had been working well for years – but “co-governance” sounded an awful lot like “co-government”, which rang alarm bells.
And although Labour attacked any criticism of its co-governance model as race-baiting, it hadn’t bothered to explain what it was or why it was doing it. Finlayson – a classical liberal who favoured the model because he believed in devolving decision-making to local communities – was appalled to see Labour using it to justify the creation of vast new centralised bureaucracies.
In the midst of the co-governance debate He Puapua was leaked to National and Act. Labour insiders now regard the report as a major strategic blunder. It allowed the government’s critics to say everything they wanted to say: the report proved co-governance was a prelude to co-government and that Labour had a secret separatist agenda. Many of the government’s policies, from Three Waters to the new history curriculum, could now be cast as elements of a left-wing conspiracy to hand the country over to Māori control. National, Act and New Zealand First would continue to use co-governance and He Puapua to campaign against the government’s treaty policies.
Suddenly Seymour
Of all the coalition’s treaty policies, Act’s proposed referendum on its principles has attracted the fiercest criticism. Ngarewa-Packer has promised the Māori response to it will “bring the government to its knees”.
“Our purpose,” says Act leader David Seymour, “is to close the loop on the Parliament having said that principles exist. In our view, Parliament now must define what they are because over the last 40 years it’s been everyone but Parliament that had a say on that.
“Normally, the constitutional underpinnings in the future of a country are something that are subject to open debate. And I think if you were to go to most people in New Zealand and say, ‘Do you know the thrust of government policy over the past six years or so is that some people are tangata whenua and have different status in everything from public administration to consultation on resource management and some people are tangata tiriti and have secondary status?’ I think most people would say, ‘Good God, that’s really offensive.’ And I don’t think that’s an unfair summary of what policymaking has been for the past six years.”
The new Minister for Children, Act MP Karen Chhour, is of Māori descent and spent time in foster care as a child. In 2022, she attacked Oranga Tamariki – the Ministry for Children – for its policy of ensuring Māori children were raised in a “culturally appropriate environment”. This policy had led the agency to identify a young girl removed from an abusive family environment as living with a culturally inappropriate foster family because the girl was Māori and the parents were Pākehā. She’d lived with them for two years. After the agency indicated they’d lose the child, the parents researched their family tree and established that one of them had distant Māori heritage. On that basis they were allowed to retain custody.
For Seymour, this is the direction of travel on the current interpretation of the principles of the treaty: something as fundamental as having the state remove your child will be based solely on ethnicity.
Act’s bill would call for a binding referendum on the definition of the principles of the treaty. His provisional principles are: one, all citizens have the same political rights and duties; two, all political authority comes from the people by democratic means including universal suffrage and regular and free elections with a secret ballot; and three, New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal. But he’s open to changing them during the select committee process.
His is a radical departure from any other reading of the treaty. One of the vexations of the document is its extreme brevity: it doesn’t give any guidelines on how a liberal democracy should function. Seymour’s move is to pretend that it does and that the treaty merely endorses modern liberal democratic values.
If the courts can derive principles of partnership and consultation from a document that makes no reference to them – and which politicians refuse to debate or define – why can’t Act derive its own principles and have a public debate about them?
Christopher Luxon has referred to Seymour’s proposed referendum as “divisive and unhelpful”. Under the coalition agreement National will support it through its first reading and Luxon has broadly hinted that it will die in select committee. There’s been speculation about a citizens-initiated referendum but Seymour does not seem enthusiastic about this. He’d have to gather 300,000 signatures – and Parliament has ignored the results of every citizens referendum since they were introduced in 1993.
Why now?
For the last 50 years, progress on treaty issues has enjoyed bipartisan consensus between the nation’s major political parties, National and Labour. The consensus broke down during Don Brash’s 2003-06 tenure as National leader. Is the current discord another temporary break? Or a more permanent rupture?
Lara Greaves (Ngāpuhi), an associate professor of political science at Victoria University of Wellington, believes this is our version of populism. “We’ve seen populism hit the majority of Western democracies. In other states around the world, populist politicians have generally targeted immigrant communities. But in New Zealand ‚the most visible minority group are Māori. But we have this intellectually interesting aspect of Māori leading it.”
The new cabinet is 35% Māori – the largest proportion in history. There’s been a longstanding stereotype that Māori politics is left-wing and Greaves points out the average Māori voter is more left-wing than the average Pākehā voter. “But there has always been a pocket of Māori who vote for National and New Zealand First over the years.”
There’s a conservative tendency in Māori politics that is asserting itself and those people are naturally interested in exploring alternatives to the left-wing model of treaty partnership that was mapped out under Labour. Greaves suggests National’s social investment model as the most likely vehicle for this. “The plans to devolve services to local communities and give them the money to solve their own problems are a natural fit.”
This isn’t an original idea, she points out. In 1992, the “Ka Awatea” report advanced a similar approach and more Māori self-determination, triggering a conservative backlash identical in tone to the uproar around He Puapua. The backlash was condemned by the minister of Māori development who co-authored the report, the then-National MP for Tauranga, Winston Peters.
The historians cannot save us
The treaty exists as a legal and a political entity, and in these domains it is subject to the depredations of lawyers and politicians as they decipher and reinterpret it to their own ends. But there is also an actual treaty – a real agreement that was signed; parties that drafted it and agreed to it. Can’t the historians tell us what happened and why, what the document really means and how we should interpret it today?
In 2023, legal scholar Ned Fletcher published The English Text of the Treaty of Waitangi, a detailed reconstruction of the lost English version of the text and the motives and intentions of the officials who drafted it. Fletcher’s book has been widely praised, celebrated as one of the most significant published works of scholarship on the Treaty of Waitangi and won the Ockham Book Awards non-fiction prize.
It concludes that the English and te reo versions reconcile and the original intention of the treaty’s architects was to guarantee Māori government and ownership of their lands. “Sovereignty” in the English draft merely meant sovereignty over British settlers. There was no confusion or bad faith behind the nation’s founding document but, Fletcher argues, the treaty’s meaning was then deliberately reinterpreted after the signing, both by settlers and the Colonial Office. The crown is not an absolute sovereign, in his understanding.
“The idea of one law for all runs contrary to our history and to the treaty.”
Fletcher’s perspective has been embraced by advocates for co-governance and the promotion of Māori sovereignty. But historian Bain Attwood – a professor of history at Monash University in Melbourne and a specialist on the history of colonisation – disputes that Fletcher’s interpretation is a historical fact. It is, Attwood claims, nothing of the kind.
Attwood argues that the crown had a far more self-serving attitude towards the topic of sovereignty, citing the directions delivered from the British Colonial Secretary to then-consul William Hobson on the formulation of the treaty:
“I have already stated that we acknowledge New Zealand as a sovereign and independent state so far at least as is possible to make that acknowledgement in favour of a people composed of numerous dispersed and petty tribes, who possess few political relations to each other, and are incompetent to act or even deliberate in concert … [T]heir own welfare would … be best promoted by the surrender to Her Majesty of a right [ie, sovereignty] now so precarious and little more than nominal, and … the benefits of British protection and laws administered by British judges [will] far more than compensate for the sacrifice by the natives of a national independence which they are no longer able to maintain.”
We can make arguments about the merits of co-governance today, Attwood warns, but we cannot cite the crown’s original intentions as a treaty partner in support of such measures.
The debate remains trapped in the labyrinths of politics and law.