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NEW ZEALAND’S TREATY PRINCIPLES: CO-GOVERNANCE OR RACE-BASED POLICY?





Luca Viscapi & Connor Donaldson -

 

The Treaty of Waitangi, or Te Tiriti, is New Zealand’s founding document, a contract of trust between the British and indigenous Māori people. This constitutional text recently has risen back to the surface of NZ politics with renewed divisions as to its interpretation. The Pacific Post has enjoyed an exclusive interview with Te Tiriti expert Sharelle Govignon-Sweet.

Signed in 1840, it contains three articles recognising British governance, Māori ownership of their land and the full rights of Māori as British subjects. However, translation issues plagued the agreement, making it an opaque and unequal treaty. Nevertheless, Te Tiriti has since become a banner for Māori rights activists nation-wide leading the NZ Parliament to recognise its principles in 1975. A full history is available on our website.

Treaty issues are once again becoming a prominent issue in NZ politics as both the left and the right become increasingly dissatisfied with the current arrangement. 

David Seymour, leader of the right-wing libertarian party ACT, encapsulates the feelings of many on the right through his campaign to overhaul the interpretation of Treaty principles recognised by the NZ Parliament. Seymour describes Parliament’s interpretation of Te Tiriti as discriminatory, perpetuating a right-wing thought initiated in 2004 by Don Brash, leader at the time of National, the main  right wing party in NZ. Brash described the Treaty as affording Māori “special privileges”, and some on the fringes of the right have gone so far as to compare the perceived disparity in rights between racial groups to Nazi Germany.

Many on the left, on the other hand, do not consider the interpretation of Te Tiriti as currently inscribed  in the law to go far enough. This stream of thought generally advocates co-governance, a model in which attributes of sovereignty would be shared between state organs such as Parliament and traditional indigenous governance structures such as iwi (tribes). Implementation of certain aspects of co-governance is a very popular policy idea with many groups on the left. In fact, the left-wing government in power prior to the current government took many steps in this direction. More radical proponents of co-governance, such as Dr. Moana Jackson, a prominent NZ constitutional lawyer, even advocated the application of separate legal systems for Māori and non-Māori. Jackson promotes this due to inherent differences in Western and Māori views on rehabilitation, which necessitate a “one justice for all” rather than “one law for all” system.

Moreover, while right-wing groups advocate for the wrapping-up of the settlement process for Treaty grievances, certain iwi and hapū, such as Govignon-Sweet’s iwi, Te Pakakohi, continue to fight for redress due to disagreements over their inclusion in other groups’ settlements. Govignon-Sweet theorises these disputes to occur because the government wishes for expediency in the settlement process, demonstrating the feelings of contempt that permeate this aspect of Treaty issues. The unsettled nature of these questions contributes to the continued prominence of Treaty issues in NZ politics.

 

Right-wing groups’ policy proposals to deal with Treaty issues primarily revolve around Brash’s idea of “one rule for all”, and the removal of any consideration of race in New Zealand law. Seymour’s recently proposed Treaty Principles Bill does just that, replacing the Treaty principles currently recognised in NZ law, which afford iwi rights, stakes, and roles in the governance process. The Bill instead proposes three principles affording all individuals the same rights regardless of race, vesting all power solely in the nation’s Western democratic institutions, and making “discrimination” based on ethnicity, including affirmative action, illegal. Statistics show Māori remain a heavily marginalised group, facing disproportionately bad outcomes across the board. Even while constituting only 16% of the population, Māori are more than half of the prison population, for example. When considered in addition to Māori’s ongoing struggle for the preservation of their culture, this has led many to assert that the Bill’s removal of official Crown protection could be “catastrophic”, as Govignon-Sweet puts it. 

 

Left-wing groups, on the other hand, generally propose reinforcing the role traditional Māori governance structures play in the governance process to achieve “co-governance”. The left-wing government in power prior to the 2023 election instituted many policies to this effect, such as the creation of Māori seats on local councils, the inclusion of iwi representatives in local resource gestion authorities, and the establishment of Te Aka Whai Ora (the Māori Health Authority), an independent body managing Māori health services. The appointment of Māori representatives many feel were not selected democratically to such positions of authority has contributed to feelings among many non-Māori and even certain Māori that the Treaty has gone too far, exacerbating tensions.

 

Treaty issues and the associated tensions are becoming an increasingly prominent issue in the NZ political sphere. Left-wing groups’ ideological moves towards co-governance and policy actions during their last stint in power have led many non-Māori to feel alienated, whereas the current right-wing coalition government's actions have resulted in feelings of fear and apprehension among Māori.

 

The Treaty Principles Bill has not been an isolated facet of coalition government policy. The current government has already implemented other closely related policies disproportionately impacting Māori. These included the disestablishment of Te Aka Whai Ora, while scrapping anti-smoking legislation, and reducing use of te reo Māori (Māori language) in the public sector. On the issue of the Māori Health Authority, Govignon-Sweet remarked:

‘I can't help but feel like it's a blatant attack on Māori. Because if you're intelligent enough to look at the data you can't deny that Māori need extra support.’

Cultural differences and demographic challenges are a major determinant of health outcomes in NZ, especially for Māori. Shortly after the policies’ announcement thousands of protestors took to the streets of Wellington, contending policies that they argued would set Māori rights back by decades.

Senior Labour MP Willie Jackson warned that if the Treaty Principles Bill were to be put to referendum, the likely final step in its implementation, political divisions could lead to unprecedented civil unrest with demonstrations of hundreds of thousands. Jackson stated Māori would “go to war” over the Treaty.

Recognising the challenges faced by the Bill, PM Christopher Luxon announced National would not support it past an initial reading in Parliament. NZ press has generally declared the Bill now ‘dead in the water’, as without a second change in heart from National it lacks sufficient support to clear the legislature. Although, turns of the table are not unheard of in NZ politics and Govignon-Sweet does not overlook ACT’s strategy to win back National when the Bill will go under committee review:

‘I don't think anything is given, to be honest. I don't think we're politically savvy in New Zealand…we are really isolated [as a country] and not often challenged in our opinions. [Like] they managed to do with Brexit, [it could be easy for prominent politicians] to convince people that this is the best thing for us. So that is my concern.’


The Pacific Post’s full, exclusive interview with Sharelle Govignon-Sweet will be made available online.


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