Since ACT is sponsoring the Treaty Principles Bill, it is understandable that David Seymour should be catching most of the flak being generated by the Bill. National, by contrast, is offering soothing reassurances that the Bill will be allowed to progress only so far, and no further. Yet looking at the Bill through that lens obscures the fact that National, ACT and New Zealand First all share a common hostility to the view that Te Tiriti ō Waitangi ever created a partnership between equals.

In reality, National, ACT and New Zealand First share a common lineage on race relations, and Don Brash is their shared ancestor. Brash is a former leader of both National and ACT, and it was his “one rule for all” speech on race relations at Orewa in 2004 that brought National back from the political wilderness to within a whisker of winning the 2005 election. Brash went on to peddle his toxic views on race relations within the Hobson’s Pledge movement, of which the current New Zealand First Cabinet Minister Casey Costello was one of the founding trustees.

Given that National and ACT share so much common ground on Treaty issues, it would be a mistake to regard Christopher Luxon as being at odds with Seymour over the Bill. Their common aim is to shift public perceptions – and public policy – away from regarding Te Tiriti as a partnership between independent equals. To that end, National will be using the legislative process i.e. the series of debates and media coverage of the Bill’s introduction to the House, the select committee scrutiny and the publicity around its eventual defeat – as a vehicle to promote the positions shared by all three centre-right parties. According to the centre-right, Māori gave away their sovereignty lock, stock and barrel in 1840. By this voluntary act of submission, Māori have allegedly embraced the policies of assimilation (“one rule for all”) that are part and parcel of the colonisation process.

To that common end, National, ACT, and New Zealand First have demonised the very idea of bi-culturalism and co-governance. The Māori Health Authority, which had just begun a process of health delivery to Māori by Māori, has been abolished. The centre-right parties are also in the process of scrapping (a) any forms of affirmative action to address past wrongs done to Māori, and (b) any attempts to address the current socio-economic disadvantages resulting from the colonial legacy.

If they feel they can get away with it politically, the coalition parties aim to abolish the foundation promise of Te Tiriti – that through it, the Treaty partners would respect in perpetuity, each other’s independence and inter-dependence, such that when conflicts arose, these would be settled by negotiation carried out between equals. They would not be resolved by subjecting Māori to “one rule for all” procedures devised and dominated by only one of the Treaty signatories.

Missing Moana Jackson ( 1945-2022)

A friend recently expressed regret that the death of Moana Jackson in 2022 has deprived us of his response to the current attempts to rewrite the sense and sensibility of Te Tiriti ō Waitangi. For decades, Jackson had brought his expertise in constitutional law, Te Tiriti ō Waitangi and the challenges facing indigenous peoples to bear on the conduct of race relations in this country. Fortunately, his writing, lectures and media interviews are still widely available online. In this column, I’ve focussed on highlights from this long He Tohu interview, in which he is typically incisive and informative. It goes without saying that the whole interview is worth watching or reading in full.

Jackson would have made short work of David Seymour’s recent attempt to deny that a Treaty partnership ever existed. Under the guise of “fairness” and “equality” ACT is attempting to recycle the old 19th century goals of subjugation and assimilation. As Jackson explained in 2016, it is illogical to think that Māori would have ever signed away their sovereignty in the way imagined by Seymour, Casey Costello and their Cabinet colleagues. As Jackson said:

“I don’t know of any independent country, any state, if you like, that has done or would do what the Crown has maintained since 1840 that hapū did; that is, that where we had jealously guarded and stated our independence for hundreds of years, that according to the Crown suddenly on the 6th February [1840] every Māori in the country woke up and said, “We don’t want to be independent anymore. We’ll give it away to this lady in London that we’ve never even met.”

That notion, Jackson continued, requires “a profound suspension of disbelief”:

“I’m not aware, for example, of any stage in French history, where the Emperor or President of France woke up and said, “I don’t want to exercise sovereignty in France anymore. I’ll ask the Tsar of Russia to do it.” And I certainly don’t know of any instance in Britain, where the king or queen of Britain woke up one morning and said, “I don’t want to exercise sovereignty in Britain anymore. I’ll go and ask the Kaiser in Germany to do it.’

That is just historically not a fact of political and constitutional inter-relationships. And to assume that that is what our people did, flies in the face of that very human history, let alone the very Māori human history, where the notion of giving away the authority to make independent decisions is not just culturally inconceivable; it was politically impossible. And that has remained a consistent thread in the Māori discussion ever since 1840.”

Bi-culturalism. Partnership. Co-governance. All these are part of the Treaty’s meaning - which entails recognising and respecting the independence of the signing parties, and their promise to work inter-dependently into the future. Te Tiriti was an agreement between the Crown and Māori about how the Crown’s people would be expected to behave, and how the indigenous inhabitants would behave towards them, and their descendants. As Jackson indicated, the Māori signatories were definitely not agreeing to capitulate to the will of the parliamentary majority of the day, whatever form that might take in future. Te Tiriti envisaged both less than that, and far more than that:

“Well, it seems to me that if a Treaty relationship is to have any meaning, then people have to work to understand what that meaning is, and then be prepared to give effect to it. For over a hundred years that has been impossible, because the forces of colonisation that demanded there only be one site of power, there only be one supreme sovereign, has dominated.

And many with the Crown House, if you like, still believe that should be the position. So that when the Waitangi Tribunal in the Paparahiō Te Raki claim stated for the first time in a Tribunal hearing that iwi and hapū did not cede sovereignty, that rather what the Treaty envisaged was different spheres of influence, a kawanatanga sphere of influence, and a rangatiratanga sphere of influence; and the challenge was how we build a bridge between those two, and define what those spheres are.

The immediate response from one Cabinet Minister was to say, “Well, that’s irrelevant, because we’re in charge.” Well, to say, “that’s irrelevant, because we’re in charge,” is not an argument. It’s not even a valid talking point; it’s a retreat from truth, it’s a denial of historical promise.”

For several reasons however, Jackson remained optimistic. Partly because:

“...I actually have a sense that there are enough Pākehā people in this country who would not accept that view, who see in the Treaty the aspiration for something better than one party perpetually dominating another, that promises made in a document signed by their ancestors must have some credibility, and that credibility must rely, in a sense of what I call “rightness.”

Meaning?

“The Treaty to me has never been about Treaty rights, it’s always been about the rightness that comes from people accepting their obligations to each other. And that was a profound, and I think, visionary base upon which to build a country. And it’s certainly my belief that Māori will never let go of that promise, and the challenge is always how well the Crown will respond.”

Footnote One: In the course of the same interview, Jackson provided a personal account of how the procedures for signing/not signing Te Tiriti played out across regional New Zealand in 1840. Jackson’s own very large Ngāti Kahungunu iwi, he said, contained dozens upon dozens of independent hapū. These would come together to discuss matters of common concern, and to explore the areas of advantage and disadvantage available to particular hapū. Such an occasion arose when news began to spread that the Crown wished to conduct a treaty.

“Our little hapū, one of the hapū that I belong to, Ngāti Poporo, decided for our own reasons - we were a tiny landlocked hapū - that we would treat; that there might be advantages in forming a relationship with these new people who are part of this other identity called the Crown.”

Most of the other hapū within Ngāti Kahungunu, he added, decided not to treat:

“And the reasons were very clear, because our research shows that in 1840, in the whole of Ngāti Kahungunu, there were less than a dozen Pākehā people. And so Pākehā were, if not irrelevant, they were not of pressing importance. And so our people saw, in 1840, no need to treat. What we did see was a need, if you like, to lay down the rules of any possible engagement. And those rules were that, this is our land, we are independent, but we’re willing to have a relationship at an appropriate time.”

What happened to the hapū that had agreed to sign was fascinating. They had gathered on the banks of the Tukituki River between Napier and Hastings. Once the Crown officials got down to business, they asked who was going to sign on behalf of the hapū. In Jackson’s hapū the person with the mana to sign such a commitment was a woman. However, in Western society in 1840, women could not validly sign treaties or contracts, or make a will, or vote, or run for office. Constitutionally speaking, women did not exist.

“Our people were then confronted with a dilemma; do we do what our independent authority demanded, that the person who had the mana to sign would sign, or do we do what this new Crown entity wanted, and scramble round and find a man? And to my everlasting pride, our hapū said, if she can’t sign, we’ll go home.”

Which they then did:

“And so our little hapū never signed the Treaty of Waitangi. The reasons we never signed were deeply steeped in our tikanga and our understanding of our independence. Had we rushed around to find a man, it would’ve been like Queen Victoria demanding that the King of France find a suitable person other than himself to sign the Treaty.”

Ironically, the Crown’s own ultimate authority figure also happened to be a woman: Queen Victoria. As Jackson noted :

“And yet we were being told that nevertheless a Māori woman can’t treat with her, and that was simply unacceptable.”

Footnote Two: Jackson had little time for the historians who have claimed that the Māori chiefs didn’t really know what they were signing at Waitangi. The making of treaties, Jackson contended, had been commonplace in pre-European Māori society.

As Jackson also explained in detail, the hapū was the key level at which important decisions were made: to go to war, to make peace, and to make treaties. This was recognised, he said, in the te reo wording of He Whakaputanga (better known as the Declaration of Independence) signed in 1835, largely by a group of northern chiefs and ratified by the Crown in 1838. The primacy of hapū was also asserted in Te Tiriti ō Waitangi in 1840.

When the possibility of treatying with the Crown came along five years later....that political reality had not changed; it was still in place that iwi and hapū were independent, but were willing to seek inter-dependent relationships with other political bodies, including the Crown.... He Whakaputanga was a statement also of the awareness by our old people that there was a big wide world out there, and that to meet the challenges of that new world there is perhaps a need to find other ways of exercising that independence.”

Arguably, He Whakaputanga deserves to be better known. In key respects, the earlier document was a useful forerunner of what was signed at Waitangi only five years later.

Footnote Three: The argument that the bi-cultural bedrock of Te Tiriti ō Waitangi has been invalidated by the subsequent waves of immigration to this country does not hold water. The Treaty commitments are not invalidated by immigration, Jackson reasoned, any more than Magna Carta has been undermined by Britain’s influx of migrants since 1215. Similarly, the US Constitution has endured, despite the cultural melting pot that the US became in the late 19th and early 20th centuries. If goodwill exists, bi-culturalism can still hold its special place within a multi-cultural society.

In Canada, the rights of First Nations peoples and of other indigenous groups (e.g. the Inuit, and the mixed ancestry Metis peoples) were formally recognised in 1982, within section 35 of the Canadian Constitution.

Ultimately though, if the “one rule for all” position being advocated by centre-right parties in New Zealand ever became law, this would extinguish Māori customary rights. It would also probably outlaw any affirmative action attempts by future governments to address the socio-economic disadvantages experienced by Māori.

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