Should the Treaty of Waitangi dictate how NZ is governed today?

In 1877, the Supreme Court of New Zealand declared the Treaty of Waitangi to be a "simple nullity" and said it had no force in law. Today, the Treaty, which was signed in 1840, is regarded as the founding document of New Zealand and it increasingly has the status of inviolable constitutional law. It has achieved this status only since 1975 when the Treaty of Waitangi Act established the Waitangi Tribunal to make recommendations on Maori claims for breach of the Treaty. That and subsequent acts have enshrined in law the concept of a "Treaty partnership" between the Crown (i.e. the New Zealand Government through its head of state, Queen Elizabeth II) and Maori tribes.

The Treaty is a simple document consisting of three articles. In the first article, Maori ceded sovereignty or "kawanatanga katoa" (most often translated as "governance") over their lands to the Crown. The second article guaranteed Maori "exclusive and undisturbed possession" or "tino rangatiratanga" over their property. The third article gave Maori the protection and all rights accorded to British subjects. The Treaty does not say anything explicitly about a governing partnership.

In any event, the Treaty of Waitangi was just that - a treaty, not a constitution - and it was never intended to be a detailed prescription for governing New Zealand. If proof of this is required, consider the many laws and proclamations that followed the signing of the Treaty, which provided the actual constitutional framework for New Zealand as a separate state with its own government:

• The New Zealand Government Act, passed by the Parliament of the United Kingdom in August 1840, providing for the establishment of a colonial administration in New Zealand separate from that of New South Wales.

• The royal charter of November 1840 that allowed for the establishment of the New Zealand as a colony in its own right and the establishment of the Legislative Council and Provincial Councils.

• The declaration on 3rd May 1841 of New Zealand as a Crown colony with William Hobson as its first Governor.

• The New Zealand Constitution Act 1846, passed by UK Parliament, empowering the government in New Zealand.

• The New Zealand Constitution Act 1852, which repealed the earlier Constitution Act.

• The royal proclamation in September 1907 of New Zealand as a Dominion.

• The 1931 Statute of Westminster Act and 1947 Statute of Westminster Adoption Act that made New Zealand an independent nation.

One interesting aside is that the reason there was two New Zealand Constitution Acts is that the first one was suspended for six years because Governor George Grey opposed provisions that established separate Maori and European districts - so clearly consideration of separate Maori political structures is not a new thing.

New Zealanders of all stripes have been very accepting of the need to redress historical wrongs perpetrated towards Maori. For the most part, these wrongs have been redressed by way of monetary and property settlements to the present-day Maori tribal authorities. But New Zealanders have become concerned as these claims have become more outlandish, encouraged in part by poorly-drafted legislation that has become the enabler for spurious claims for possession of everything from water resources to the entire coastline of New Zealand. But even these claims pale against the agenda that was outlined in a document that the current New Zealand Government tried to keep secret - the report known as He Puapua [PDF download].

He Puapua proposes that ultimately New Zealand will be split into three spheres of governance:

• Rangitiratanga - in which Maori exclusively govern "people and places"

• Kawanatanga - the sphere of Crown governance

• Joint - in which Maori and the Crown share governance over matters of joint concern.

The document suggests that the effect of this will be three parliaments - one for Maori, one for non-Maori and a joint one. In effect, the 16% of the population with some Maori ancestry will be on constitutional parity with non-Maori, i.e. the Maori suffrage will be worth six times the non-Maori vote. This is already reflected in the Ardern Government's health reforms - with a Maori and non-Maori health funding agency and the right of veto of one over the decisions of other - and in the Three Waters reforms. Of course, no one is proposing that Maori pay half of the taxes to fund these ambitions.

I believe that individual human beings are sovereign and that, in Thomas Jefferson's inimitable words, governments derive their just powers from the consent of the governed. Consistent with this belief is the principle that any group of people, whether defined by geography, ethnicity, language, religion or some other factor of importance to themselves, has the right to self-determination. Therefore I believe that if people of Maori descent (or of a particular tribe) want to govern themselves, they are entitled to do so, but by the same token, people should not be forced to be subject to a polity to which they have no means of consenting. There is also a practical problem of having different legal jurisdictions in the same territory, which He Puapua recognises when it says, "self-determination...require[s] spaces and places for Māori to exercise authority, decision-making and choice within New Zealand’s territories."

I can imagine a future where Maori tribes govern their distinct territories within the Realm of New Zealand, in a similar arrangement to Tokelau. Northland tribes, for example, might decide to reconstitute the Confederation of United Tribes that signed the 1835 Declaration of Independence, and Tuhoe are likely to want to implement the self-governance that was envisaged (but never implemented) under the 1896 Urewera District Native Reserves Act. People in those territories would still be New Zealanders but they could determine their own laws within a constitutional framework that reserves some powers and responsibilities, such as foreign policy and defence, to the national government. Populations that did not wish to be part of the self-governing territory, for example predominantly non-Maori towns and cities, could opt not to join it.

It is up to the people of this country today to determine how they should be governed. Our form of government was not, and should not be, prescribed by a treaty between Queen Victoria and Maori chiefs nearly two centuries ago. The Treaty of Waitangi is an important founding document of New Zealand but it should not be used to abrogate the rights of modern day New Zealanders. Debating what the actual words of the Treaty were intended to mean is of limited value in informing how New Zealand should be governed today. More important than the principles of the Treaty of Waitangi are the fundamental principles on which modern, liberal democracies are based - the rights to life, liberty and the pursuit of happiness, the rule of law, equality before the law, secure property rights and the right of due process. We should honour the Treaty of Waitangi to the extent that it is consistent with these fundamental principles, not as an alternative to them.

One of the problems with much of the debate about the Treaty and proposals for Maori self-determination is that those involved seem to regard the Crown as a separate entity to the people of New Zealand. This is a false assumption - the Crown's legitimacy today is solely through the consent of the people of New Zealand and if sufficient New Zealanders so decided, we could abolish the Crown in New Zealand and become a republic, as Barbados has just done. The debate about Maori self-determination needs to involve all of the people of New Zealand, not just some government ministers and officials in back rooms who claim to represent the Crown. The people of New Zealand must consent to any constitutional changes, unless those proposing them are thinking they can impose them by force (unfortunately it appears that this is the case, given the arrogant and dictatorial approach that is already apparent in the current Government's approach to these reforms).

I believe most New Zealanders want to accommodate Maori aspirations for self-determination, but few will be prepared to accept the imposition of new constitutional arrangements that have the effect of making non-Maori second-class citizens in their own country. A government that sets itself against the will of its people cannot last - or at least, not as a democratic government. We need a genuinely open debate on how New Zealand is to be governed in future without anyone who expresses a contrary view being labeled racist. I have always thought the most important clause in the Treaty of Waitangi was Article 3, which envisaged that we would all be British subjects - in modern parlance, equal citizens. That is the aspiration that should drive all consideration of how New Zealand is to be governed in future.