Last year I posted “democracy or partnership” and asked what do we want. Since then, the partnership and co-governance concepts, have gained legs with the Three Waters proposals and the twin health authorities. In addition, at local government level in the same vein, we have seen non-elected appointees given voting rights on council committees.
PM Ardern uses the partnership term frequently, and in a TVNZ interview with Jack Tame, National Leader Christopher also equated the Treaty with partnership.
When starting a journey, it is useful to know where it will end, otherwise one can end up in an uncomfortable zone, where retreat is difficult. Somehow, I suspect few political leaders, other than the Maori Party and ACT, have really thought through the partnership concept, and we are heading for a rough time, unless there is a course correction.
Since writing last year’s post I have read the famous 1987 Lands case where the Court of Appeal, then headed by Sir Robin Cooke, opined the Treaty created an enduring relationship between the Crown and iwi that was “akin to a partnership”. This followed legislative changes prior to 1987, to move from the Treaty texts, to the “principles” of the Treaty. The principles were not defined in statute, but given to the Waitangi Tribunal to define.
What does the Treaty partnership mean?
When writing last year, I assumed the term meant the two parties – Crown and iwi – were equals and should be governing the country together. In other words, that the Crown itself was a partnership. However, after reading the Court decision and further reflection, I believe what the Court had in mind was something much less expansive, that did not radically undermine democracy, and would be less divisive than what we have today.
I don’t believe it decreed, or even had the view that the Crown-iwi itself, was a partnership, as two lawyers might form. I think what the Court meant was the Crown had an on-going obligation to iwi, to honour the Treaty as best it could, having regard for current realities. One such reality is that Maori do not live under tribal leaders, and all are tribally and ethnically mixed, including with “ngati-pakeha”.
I am comfortable with this interpretation, which is liberal but not radical. I recognise some Maori leaders and others prefer the expanded version, which is clearly not consistent with a credible democracy.
Legal definition of Maori – some practical issues
As most know the legal definition of a “Maori”, is any descendant of a Maori, which means over time the proportion of Maori in the community with a whakapapa connection will increase, without necessarily a concomitant connection to Maori community or culture. I accept the legal definition, even though for some, it fails the common-sense test. To me those with predominantly non-Maori ancestors are New Zealanders or kiwis, just as I am not English or European, even though my ancestors back several generations, came from the Northern Hemisphere. Another way of putting it is that over time Maori and Pakeha have become different ends of the same biological and cultural spectrum.
The texts of the Treaty are precise, but because of translation issues, are not entirely consistent with each other, and so we now have the “Treaty principles” courtesy of the Waitangi Tribunal. However, the problem is they are infinitely elastic . In the eyes of many they provide the scope to relate all sorts of public policies to the “principles”. This road is a guaranteed formula for endless inward looking, often unpleasant and very unproductive debates. A country pre-occupied with looking at itself, is not heading to a good place. There are many world-wide experiences we can draw from, showing the dangers of separatist policies.
The good news is that within our democratic system there is ample scope to tailor services for Maori, other ethnicities and social groups. The vaccine roll-out showed the limitations of one system working for all. The same goes for education and social services etc. Pacific Islanders are outside the Treaty coverage but they too sometimes require tailored services. Curiously the large Asian grouping, with several ethnicities, seems to adapt well to mainstream policies.
Of course, in 1840 when the Treaty was signed, few if any could have thought about state provision of education, health and social welfare services, to say nothing of the allocation of spectrum frequencies, which is why these matters should be treated on a social equity basis and not some tenuous link back to the Treaty.
We have monumental challenges with school attendance levels and slipping education standards, housing affordability, obesity, productivity, and now inflation. This Government is over reaching itself on several fronts. It needs to take a breather and deal in a practical manner with the real problems it can solve, instead of creating new ones around an expanded version of the Treaty. It would be a real tragedy if Labours’ major legacy was a diminution of our quality democracy.
All political leaders should set out clearly how they see the partnership concepts fits with democracy. The same goes for the media, which has been astonishingly silent on the single most important issue facing the country. ACT and the Maori Party are clear, but for the rest their collective silence is deafening.