June 2013 Māori Law Review
Duran Moy's paper to the Māori Law Review symposium on the Treaty of Waitangi and the constitution.
12 June 2013
How should we change the way we do business with one another?
I will be speaking on the future of the Crown-Māori relationship in the post-settlement environment.
I will make 3 points:
- First, the winding up of the historical claims process requires us to consider how the relationship between the Crown and Māori ought to develop from here on in.
- Second, the future basis of this relationship ought not to be restricted to a discussion of Treaty principles or legal legitimacy, but rather political legitimacy.
- Third, I will offer some brief ideas as to possible ways forward.
1. Winding up of the historical claims process
The government aims to have the majority of historical claims settled within the next few years. Much has been accomplished since the establishment of the Waitangi Tribunal, and there is still more to be done.
The process has been instrumental in healing the past and helping to build a future. To an extent it has defined the relationship between Aotearoa’s Treaty partners. For example, one need only read Tribunal reports to discover how Treaty principles have guided this relationship, and how legal concepts from te ao Māori can be practically implemented in te ao Pakeha. Moreover, this process has been the vehicle through which Māori have had their strongest voice. That voice has been powerful, resonant, and effective.
But as the Constitutional Advisory Panel reminds us, the Treaty of Waitangi is about much more than historical claims. Indeed, the Māori voice is about much more than calling for the settlement of past grievances. In essence Te Tiriti is about the underlying constitutional relationship between Māori and the Crown. And just because the historical settlement process ends, it does not follow that the development and dynamism of the Treaty relationship should also end. The Attorney-General Chris Finlayson was on point in remarking that, “I loathe the expression ‘a settlement done and dusted’” – because it’s not done and dusted. What we’re trying to do in this work is recognise the past – not ignore it – and change the way we go about doing business with one another.
This begs the very question – how should we change the way we do business (and I use this term in an expansive way) with one another?
2. Future basis of the relationship
The future basis of the Treaty relationship cannot be merely about incorporating Treaty principles into law. The judiciary and the Waitangi Tribunal have extensively explained and analysed these principles. They have been indispensable in getting us this far. But they have their origins in a constitutional framework that belongs to the Crown. The principles reflect a spirit of compromise in which tino rangatiratanga is able to fit underneath Crown sovereignty. The principles enable Māori rights to be protected within the Crown’s sovereign constitutional framework.
If we are serious about a meaningful and constructive constitutional kōrero, then what we need to discuss is the political legitimacy of the Crown’s sovereignty. I don’t mean challenging the legal legitimacy of Crown sovereignty, that legitimacy is readily accepted by most people (… I think). What I mean by political legitimacy is the extent to which the Crown’s subjects accept the way the Crown expresses its legal sovereignty.
Traditionally, this has been a top-down expression of power. The advent of constitutional democracy and more recently the development of Treaty principles have spread that power out to the Crown’s subjects and Māori.
I argue that the starting point for a discussion should be how the Crown can use its legal power to recognise Māori as an equal sovereign partner, rather than an aggrieved Crown subject. This is not a radical or new perspective. It was envisaged by our forebears over 170 years ago in 1840.
One thing is clear, whether we look to the Māori text or the English text of the Treaty: in either case a significant shifting and sharing of constitutional power was envisaged.
Another thing is clear when we look at today's arrangements: there has been a significant shift in constitutional power from sovereign tangata whenua to the sovereign Crown, but no significant sharing. We cannot justify this status quo on the basis of acquiescence with the passage of time. The status quo gains legitimacy from acquiescence only in the context of subjugation
Our constitutional kōrero should therefore figure out how we can right that balance.
3. Ways to right the balance…
To that end, turning to my final point, I’d like to briefly put some ideas out there as to what the right balance might look like:
- We could elevate the Treaty in some form into entrenched law alongside other pieces of legislation such as the New Zealand Bill of Rights Act;
- We could allow the Waitangi Tribunal to screen bills for consistency with the Treaty and issue binding directives in that regard; or more generally, we could provide the Tribunal with the power to issue binding advice in respect of modern claims;
- We could develop power sharing arrangements where the Crown’s statutory delegates, such as local government authorities, share the exercise of power with local iwi;
- We could entrench Māori seats in Parliament;
- We could guarantee Māori representation, and power, in resource management decisions;
- We could do any number of things and come up with any number of ideas, to protect matauranga Māori and rebalance the Crown-Māori relationship.
And if all of that is just tinkering with the existing arrangements, then we should strive for a big and audacious vision. In the words of His Honour Justice Joe Williams, “after all, this is Aotearoa, built on a Treaty partnership that we may yet perfect.”