The future of the Treaty of Waitangi - Gareth Morgan & Susan Guthrie

The future of the
   Treaty of Waitangi

Gareth Morgan & Susan Guthrie

Are we
  there yet?
    The future of the
   Treaty of Waitangi

Gareth Morgan & Susan Guthrie

Are we
  there yet?
    The future of the
   Treaty of Waitangi

Gareth Morgan & Susan Guthrie

Acknowledgements
The prospect of investigating what is happening in New Zealand in relation to
the Treaty of Waitangi was daunting. It was clear we were going to need to talk
about the issues with a large number of people. Before we could ask anyone a
sensible question, we needed to familiarise ourselves with New Zealand’s history
and in particular the circumstances around the signing of the Treaty of Waitangi.
New Zealand is very fortunate in her historians. Scholars like Claudia Orange,
Dame Anne Salmond, Professor Richard Hill, James Belich and the late Michael
King have produced a wealth of accessible material which brings New Zealand’s
past alive. We would like to make special thanks to Professor Richard Hill who
provided welcome insights and feedback.

Surveys and statistics have played a significant role in this project. Two surveys
we found especially valuable were the Survey of New Zealand Values, a research
project led by Dr Paul Perry from Massey University, and the New Zealand
General Social Survey (NZGSS) produced by Statistics New Zealand. Dr Perry,
and Philip Walker and Scott Ussher from the Statistics New Zealand NZGSS
team, gave generously of their time and helped us to navigate this important
data. If there are any errors in the analysis we present, they are, of course,
entirely our own.

Researchers like us, who operate outside the university system, would be able
to investigate very little were it not for the openness and accessibility of New
Zealand’s academic community. We were fortunate to have opportunities to
talk law with legal experts; ideas about culture with anthropologists, sociologists
and psychologists; constitutional issues with lawyers and political scientists;
education with education researchers; community health with public health
experts; Mäori and Pasifika aspirations with specialists in those fields.

There are too many people to thank individually but we would like to
acknowledge the huge depth of knowledge present within New Zealand’s
universities, something which we think is not acknowledged often enough.
While our views were informed by these discussions and the material we were
directed towards, we accept full responsibility for the views we express here.

To everyone who has contributed to this project, thank you for helping us on
this journey to understand our country better.

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First published in 2014 by The Public Interest Publishing Company Ltd (PiP).

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Copyright © 2014 by The Morgan Foundation.
All rights reserved; no part of the contents of this book may be
reproduced in any form without the permission of the publisher.

ISBN 978-0-9876666-8-0

Contents
Introduction                                                      9
Chapter 1:                                                       19
    Progress
Chapter 2:                                                       35
    Ethnicity
Chapter 3:                                                       57
    Evidence about the importance of ethnicity
Chapter 4:                                                       81
    New Zealand’s ethnic groups
Chapter 5:                                                      103
    Governing society
Chapter 6:                                                      139
    Governing arrangements in New Zealand
Chapter 7:                                                      161
    The Treaty of Waitangi
Appendix to Chapter 7:                                          193
   The Waitangi Tribunal, Parliament and the Office of Treaty
   Settlements

Chapter 8:                                                      205
    The development principle
Chapter 9:                                                      221
    The consultation principle
Appendix to Chapter 9:                                          243
   Unique Māori rights with respect to natural resources and
   cultural treasures

Chapter 10:                                                     249
    Socio-economic disadvantage
Chapter 11:                                                     279
    Family and community life, and education
Chapter 12:                                                     309
    Reflections and new directions

(Endnotes)                                                      339

Index                                                           394

Introduction

    It has been a long time coming, but New Zealanders and
their political leaders are getting to grips with the harm done
to Mäori culture and Mäori communities by 19th century British
settlement. Other countries with a history of colonisation have
been grappling with their own version of this issue too. The
process of exploring the impact of colonisation, and trying to put
things right, is an international one. It began in the late 1970s
and continues to this day. It is not too much of a stretch to call
this a process of reconciliation.
    No one can have a complete understanding of the past, but
it is possible to learn a great deal from history. History shows,
for example, that a great deal of harm is done when ideas, values
and practices from one culture within society are overlooked or
actively suppressed by others. Individuals within these cultures
can lose their sense of self, they can falter and lose their direction
and strength. People from small cultural communities living
alongside a large majority are especially vulnerable. The effects
can continue across generations.
    Cultural loss or suppression due to colonisation is not the
only factor causing harm to indigenous communities. Although
it is rarely acknowledged in New Zealand, being culturally and
socially disconnected from the wider society is damaging for
individuals too. International empirical evidence has shown
time and again that identifying with and being connected to
both one’s own culture and the wider society is the best option
for those from minority groups.

10   Are we there yet? The future of the Treaty of Waitangi

         History also shows us that Mäori culture, like many
     indigenous cultures, is centred on place. Having an ongoing
     relationship with the physical landscape is important to Mäori.
         With the value of hindsight then, it is no wonder that
     Mäori communities were torn asunder by colonisation. Within
     one generation, Mäori communities were surrounded and
     outnumbered by foreign settlers who successfully implanted
     their ideas, knowledge and political processes throughout the
     country. Settlers also acquired exclusive rights across much of the
     landscape, severing Mäori connections with place. Urbanisation
     from the 1950s added further pressure, while falling behind in
     education and in the job stakes disconnected many Mäori from
     the economy.
         Colonisation began over 170 years ago in New Zealand but
     the effects can still be seen today in the over-representation
     of Mäori among those with poor health and low incomes, for
     example, and among those in prison.
         The challenge facing New Zealand in the 1970s was how to
     go about the reconciliation process. An obvious answer was to
     begin by acknowledging the Treaty of Waitangi signed in 1840.
     This document did, after all, kick-start the whole colonisation
     process. It was an agreement between British and Mäori to live
     together in this place. Mäori had always seen the Treaty as central
     to their relationship with the rest of New Zealand. It took time,
     but eventually the rest of New Zealand came to agree.
         New Zealand’s political leaders decided in 1975 to put the
     Treaty at the centre of the reconciliation process. The issue then
     became how best to use the Treaty. The decision was made to
     treat the written clauses in the Treaty as benchmarks against
     which to judge what happened subsequent to 1840. Mäori
     grievances thus became couched in language relating to the
     Treaty, and arguments were anchored around the wording used
     in the Treaty’s clauses (the three ‘Articles’). Waitangi Tribunal

Introduction   11

findings and court rulings have been invariably expressed in
language relating to the Treaty.
    There is a very important point about the Treaty’s role in
the reconciliation process that is often overlooked. The Treaty
is not a legal obligation imposed on either Mäori or non-Mäori.
It is tool that is being used to help the reconciliation process.
The Treaty has been successful as a tool because it has great
symbolic power. The Treaty is used by the Waitangi Tribunal,
the Courts, lawyers, government departments and Mäori to
arrive at decisions they believe will receive widespread support
eventually, if not immediately. These decisions are about how
resources and political power are to be distributed between
Mäori and non-Mäori. These decisions are often subsequently
translated into legislation, which is legally binding, but the
Treaty itself has no legal power. In its current role the Treaty
simply acknowledges there is a political relationship between
Mäori and non-Mäori and it is the job of the Tribunal, the Courts,
Parliament and government departments to work out how that
relationship plays out in practice every day.
    In the early days of reconciliation, many of the grievances
related to land that was once in the exclusive possession of
particular tribes and was culturally important to them. The loss
of cultural ideas and knowledge – such as the Mäori language –
often lay at the heart of grievances too.
    Grievances relating to events that happened in the past are
known as ‘historical claims’. Reconciliation of historical claims
has been achieved by settlements, which include an official
apology and typically some combination of financial settlement,
acknowledgement of unique roles (akin to compromised property
rights) for Mäori tribes with respect to land remaining in public
ownership, and direct land transfers to Mäori tribes.
    Where the grievance has been largely about land and
cultural assets the approach of using the Treaty to bring about

12   Are we there yet? The future of the Treaty of Waitangi

     reconciliation has generally worked smoothly. The importance
     of land and cultural assets is now well understood and widely
     accepted and the wording used in the Treaty – in Article 2 –
     sends a strong message about the intent of the Treaty signatories.
     It was their intent that Mäori retain their lands and ‘treasures’.
     Thus we see that grievances relating to lands and treasures that
     were lost have generally been understood and accepted by non-
     Mäori. It is a fact that well over $1 billion in land and other
     assets has been transferred to tribes with no disruption or even
     significant disagreement from non-Mäori.
         Not all Mäori grievances relate to land and cultural assets
     though. Mäori also have political aspirations. Mäori have long
     sought authority to make decisions about public policies and
     programmes that affect Mäori. Sometimes this translates to a
     demand for more community self-autonomy – Mäori leaders
     having a larger role in Mäori communities – and sometimes it
     translates to demands for more political power – Mäori leaders
     having a greater say in policies that affect all New Zealanders.
     Mäori have also sought economic assistance because without
     resources all the self-autonomy and political power in the
     world won’t deliver a higher level of well-being to struggling
     communities. These political aspirations are not unique to Mäori
     – they are demands made by indigenous groups around the
     world, irrespective of whether or not a Treaty was ever signed.
         Mäori have chosen to use the Treaty claims process to pursue
     these political aspirations. Mäori typically blend these three
     goals – autonomy, power and economic assistance – into one
     aspiration summed up by the Mäori word ‘rangatiratanga’, which
     can be roughly translated as chieftainship. Article 2 of the Treaty
     promised Mäori rangatiratanga over their lands and treasures.
     Rather than focusing on the lands and treasures aspect of Article
     2, when presenting their political grievances/aspirations Mäori
     emphasise the rangatiratanga aspect of Article 2. Mäori have

Introduction   13

been supported in this by the Waitangi Tribunal, which has
spent considerable time discussing claims to rangatiratanga,
often finding in favour of Mäori.
    However, this aspect of the reconciliation process is risky
for New Zealand. Using the Treaty to couch a claim for more
power over policies that affect all New Zealanders is particularly
problematic. Article 3 of the Treaty states explicitly that everyone
– Mäori and non-Mäori – is a citizen with the same rights. That
precludes Mäori or anyone else having more political power
than anyone else. So the Treaty cannot be used to support Mäori
aspirations for unique political rights. The Treaty has been a
great tool to reconcile grievances relating to land and cultural
treasures but it can’t credibly be asked to support granting more
political power to Mäori than is available to anyone else. A new
approach is needed to discuss that aspiration.
    A second problem relates to the wisdom of the request. The
adage ‘be careful what you wish for’ resonates here. Around
the world much thought has gone into the best way to govern
countries made up of different ethnic groups. While the is
much the experts don’t agree on, they all acknowledge that
giving groups defined by descent unique political powers risks
creating social divisions over time that would not be there
otherwise. Governing arrangements in which a select group has
unique political rights have the potential to create ever-greater
social divisions.
    This is not because the rest of the population feels aggrieved
and grumpy – they may, but the argument against group
political rights is more sophisticated than that. When unique
political power for some groups is created, the leaders of those
groups are incentivised to accentuate the difference between
their group and the rest of society. They fear any awareness
and acknowledgement of common ground between the group
and the wider society because that may lead to the questioning

14   Are we there yet? The future of the Treaty of Waitangi

     and ultimately loss of the unique rights held by the group. So,
     political arrangements that create unique group rights can trigger
     a dynamic parting of the ways within society that is artificial but
     no less powerful for that.
         The Tribunal has found in favour of Mäori grievances relating
     to rangatiratanga. The Tribunal has supported Mäori calls for
     more autonomy, more power and more economic assistance.
     However, in its analysis the Tribunal did not discuss the limits
     Article 3 may pose on Mäori aspirations for more political power,
     nor did it report what is known internationally about the risks of
     political systems that recognise unique group rights. Failure to
     assess the arguments for and against Mäori grievances related to
     rangatiratanga in a balanced way is such a significant gaffe by the
     Waitangi Tribunal that its objectivity can fairly be questioned.
     It is pretty clear that this institution is ill-equipped to deal
     reasonably with Mäori political aspirations (which are typically
     couched as ‘contemporary claims’). The 2013 Constitutional
     Advisory Panel, which simply endorsed rather than critically
     assessed the Tribunal’s view, also failed to provide the balanced
     assessment New Zealand needs.
         Mäori aspirations to have more autonomy, more power
     and more assistance must be taken seriously and debated on
     their merits. However, it is foolhardy to try to progress these
     aspirations using the Treaty and ignoring the international
     literature on constitutional design. The goodwill of the rest of
     New Zealand will be sorely tested. It is stretching the Treaty
     too far and risks undermining its status among non-Mäori.
     An endless and ultimately unresolved dispute lies ahead of us
     if Mäori continue along this course. It would be far better for
     Mäori to table their political grievances directly – as aspirations
     for autonomy, power and economic assistance – and debate each
     aspiration on its merits.

Introduction    15

    On the issue of Mäori autonomy it is clear that devolution
of authority to communities – not just Mäori communities,
but any community – has the potential but not the promise to
improve wellbeing, so it is something everyone should be open
to. However, it needs to be done carefully, and communities
need to be resourced appropriately. To date, New Zealand has
devolved authority in education and made a poor job of it. Mäori
may value these opportunities more than most, so this policy
failing is especially harmful to Mäori. In sum, autonomy can be
a good idea, and if devolution is done well, it has the potential
to increase well-being for anyone. Delivering on this Mäori
aspiration has the potential to benefit everyone, so it is a win-
win option.
    On the issue of political power, unique political rights for
Mäori risk creating significant artificial social divisions. There
are other risks too. These risks may be worth it if – and it is
very big if – Mäori are permanently excluded from political
life. In other words, if Mäori views would never otherwise be
reflected in the decisions made by Parliament or by government
officials, then it might make sense to have unique roles for Mäori
within Parliament and within the bureaucracy (as we currently
have with the Mäori electoral seats and reserved positions on
Departmental advisory boards, for example). But this is a very
high bar. It is possible that more devolution might deliver the
authority Mäori seek, making the aspiration to have more
political power redundant.
    On the issue of economic assistance, it is clear that not only
Mäori but Pasifika too, and large numbers of Päkehä (settler
descendants), endure economic and social poverty. By all means
the New Zealand Government should direct economic assistance
to those in need, but this is not a Treaty issue; it is a human rights
one. New Zealand is signatory to the United Nations Declaration
of Human Rights, which protects the most vulnerable in society.

16   Are we there yet? The future of the Treaty of Waitangi

     Treating disadvantage as a Treaty issue risks overlooking the
     very real needs of non-Mäori.
         Of the three aspirations, Mäori seem to have made most
     ground on that relating to political power. We still have the
     Mäori electoral seats, and increasingly government departments
     are creating reserved positions for Mäori within their decision-
     making processes. Government officials are creating group rights
     on an ad hoc basis. Meanwhile little is done to extend and make
     better devolution, which could reduce Mäori demands for risk-
     laden accommodation at the heart of New Zealand’s political life.
         Discussing the merits of group rights is long overdue.
     However, New Zealand currently has no credible forum in
     which to have this debate. The Tribunal has shown it cannot be
     relied upon to be objective. We suggest that a new institution be
     created to hear Mäori contemporary claims, and moreover that
     any group can take what are in effect claims for constitutional
     reform to this forum.
         We also call for New Zealand’s twenty-year experiment
     with devolution to be assessed thoroughly and objectively. That
     means doing hard-headed assessments of how well communities
     implement policies designed to help those who are mentally
     or physically ill, illiterate or unskilled in other ways, trying to
     rehabilitate after a time in prison or in other ways disadvantaged.
     Giving communities more authority over policies designed to
     help those who struggle is no guarantee these interventions will
     work. Devolution itself is not sufficient. It also means looking
     at examples that work well and thinking how devolution can
     be extended into new areas. We think there are plenty of
     opportunities to do better here.
         To get the maximum benefits from devolution and to be
     effective at addressing disadvantage we need healthy relationships
     between central government and communities, and between
     Mäori and non-Mäori. That requires two-way respect and trust,

Introduction   17

which, despite three decades of reconciliation, still appear as
elusive as ever. So underpinning everything should be a search
for creative ways to connect New Zealanders to each other and to
their governing institutions. We think radical changes in welfare
and tax policy can make a useful contribution here.
    The organisation of this book traces our two-year journey
exploring the course New Zealand is taking with the Treaty of
Waitangi. In Chapters 1 to 6 we set up our framework for thinking
about the Treaty. Chapter 1 looks at the idea of progress. What
is it and how can we make some? We find out that progress is
about becoming a society where people live the lives they value
and have the freedom to choose the lives they live. Chapter 2
looks at the importance to people of groups, and explores why
ethnic groups in particular matter so much. In Chapter 3 we
look at what the evidence says about the relationship between
ethnic group membership and wellbeing, and the effectiveness
of tailoring social policies to ethnic groups. In Chapter 4 we look
at the ethnic groups present in New Zealand.
    In Chapter 5 we look at the debate among political theorists
about the best governing arrangements for diverse societies.
Chapter 6 is about New Zealand’s governing arrangements.
    In Chapters 7 to 9 we look in detail at how the Treaty of
Waitangi has been applied in New Zealand, focusing on some of
the most recent interpretations. Chapters 10 and 11 examine the
problem of socio-economic disadvantage and the particularly
disturbing fact that Mäori and Pasifika are more likely than most
to have to endure it. In Chapter 12 we reflect on what we have
discovered and offer suggestions for change.
    In no way do we claim that this is the final say on the value
of what is occurring in New Zealand in the name of the Treaty,
and that others should sign up to our conclusions without
question. We have had to grapple with the academic disciplines
of psychology, philosophy, law, political science, history and

18   Are we there yet? The future of the Treaty of Waitangi

     others to get this far. Through necessity we selected a sample
     from the wealth of material available and inevitably this will have
     influenced what we found. Ultimately what we wanted was to
     start a conversation about where New Zealand is heading, with
     everyone in the room – not just the lawyers and the politicians –
     having the same essential information.