Reflections on Te Tiriti o Waitangi: Part 1 (NZ Herald)

Note: Between August 2014 and May 2017 I was a regular columnist for Mana Magazine and my writing was focused on this medium, while also managing a very hectic work schedule.  Articles during this “Interregnum” were all originally published in external sources.

The NZ Herald are running a series of opinion pieces in the lead up to the 175th anniversary of the signing of Te Tiriti o Waitangi.  Over the course of this week they are running two articles I have written providing my overview perspective.  Today’s piece is on the meaning of Te Tiriti o Waitangi and the role of the Waitangi Tribunal.

As we approach the 175th anniversary of the signing of Te Tiriti o Waitangi it is appropriate that we take the time to reflect on the lessons we have learned since 6 February 1840, and set a path for a future which honours both the Maori and the Pākehā parties to Te Tiriti.  Today, I discuss the meaning of Te Tiriti o Waitangi and the role of the Waitangi Tribunal.

There are plenty of myths surrounding Te Tiriti o Waitangi.  There are not, for example, two versions – one in English and one in Maori.  It is important to remember that those who did sign, predominately signed Te Tiriti o Waitangi – a text written entirely in Te Reo Māori.  The differences between the Māori “Te Tiriti” and the English “Treaty”, especially the difference between kawanatanga and sovereignty, have come to cause a lot of debate.  For the Rangatira at Waitangi and elsewhere who signed Te Tiriti, they were never asked to cede their sovereignty to the British.  Te Tiriti was sold to Māori as a co-governance arrangement. The British would look after their settlers, and Māori would continue to look after their hapū.  Māori did not cede sovereignty under Te Tiriti o Waitangi.  This is established.  Our desire to continue to exercise our rangatiratanga will be addressed in another article.

Te Tiriti provided three distinct set of rights:

  1. The right of the British to govern the British settlers who had taken up residence;
  2. The continued existence of rangatiratanga by Māori over their homes, lands, and resources; and
  3. The right of Māori to be treated no differently than British by the British Crown.

The Waitangi Tribunal was established in 1975 to address the grievances of Maori arising from breaches of Te Tiriti o Waitangi by the Government.  The Tribunal process, while much maligned, is an institution that we as New Zealanders can be immensely proud of.  Each report provides a rich analysis of our history and the often damaging effects of the settlement of New Zealand.  There is nothing “creative” or “novel” in the Tribunal reports.  They are grounded in 40 years of jurisprudence on the meaning of Te Tiriti and the rights that flow from it.

There is often confusion over the role of the Tribunal, and its seemingly pro-Māori stance.  The Tribunal is tasked with determining whether Crown action has been in accordance with Te Tiriti o Waitangi and, if not, what recommendations should be made to redress the situation.  The idea that the Tribunal only speaks to one of the two partners to Te Tiriti, as mentioned by Gareth Morgen last week, is nonsense.  Both Māori and the Crown actively participate in Tribunal processes, and hearings are an ongoing debate and discussion between the two parties.

Any recommendations of the Tribunal need to be debated and legislated by Parliament before they can become law and history shows that Parliament has often ignored the recommendations made by the Tribunal.  It forms one part of the debate around Crown-Māori relations and our constitutional framework, but it is by no means the only institution discussing these issues.  The Tribunal does not create “unique political rights”, it interprets how the rights guaranteed to Māori have or have not been upheld.  We live in a representative democracy and the Tribunal is one of many bodies providing recommendations to the Government on policy and constitutional issues.  Law changes continue to be enacted through Parliament and the legitimacy of all the specific rights reclaimed by Māori over the past 40 years is grounded in the legitimacy of the ruling Government.

For Māori, the Waitangi Tribunal is part of the healing process.  It provides a space for us to tell our history.  To be heard.  I have seen elders in tears after presenting evidence to the Tribunal because for them it is the ultimate way of honouring their ancestors.  I hear many pākehā speak of their desire for us to simply move on, to get over it, and for us to move forward as one country.  I long for the day when we can peacefully co-inhabit New Zealand as one, but this day will not come until Māori have had our grievances heard and addressed.

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