June 2013 Māori Law Review
Julia Whaipooti's paper to the Māori Law Review symposium on the Treaty of Waitangi and the constitution.
12 June 2013
Te Tiriti is the founding document that gave birth to Aotearoa New Zealand
“Thinking of the future, what role do you think the Treaty of Waitangi could have in our constitution?” This is the question posed to all New Zealanders to consider by the Constitutional Advisory Panel.
Now I have to preface my korero by acknowledging that there are significant material differences between Te Tiriti o Waitangi and the Treaty of Waitangi. How this question is phrased, implicitly dismisses this korero. Our Māori tupuna who signed both versions of the Treaty, believed they were offering a seat at the table as opposed to the whole table and chairs that were taken away. But this is not something I feel necessary to address in this space. For the purposes of this korero I will refer to te Tiriti and the Treaty with the common thread which binds both in mind, that is a relationship, and arguably a partnership between Māori and the Crown.
So, do I think the Treaty should have a role in New Zealand’s Constitution? Kāo, no I do not. For the word “role” denotes a limitation, that the Treaty form only a “part” or “section” of the Constitution. Te Tiriti is the founding document that gave birth to Aotearoa New Zealand. To borrow from Sir Robin Cooke, “a nation cannot cast adrift from its foundations”. So no, I do not think the Treaty should play a role in the Constitution. I think it should form the basis from which our Constitution is built.
It is through the signing of the Treaty that the Crown gained its legitimacy to govern in this country. Given the Crown is represented through the Government of the day, it should go without saying that Te Tiriti should be at the heart of any constitution in this Country.
Could Te Tiriti be at the heart of any constitution?
But the realist in me asks if that is even possible. Since I live in a country where I’m in a privileged minority, along with, I’m assuming, most, if not all of you in this room. We are privileged because we know what a constitution is and that New Zealand already has a constitution. But more importantly, because we have a substantive understanding of the Treaty and Te Tiriti.
How then, can we ask everyday New Zealanders where they think the Treaty should fit? When the word “Treaty” alone evokes so many negative emotions and an ignorant understanding that polarises our country.
No the Treaty is not a document that gives Maori special privileges, rights and millions of dollars. Because there is no privilege in being the party to a broken contract and seeing the negative consequences of that perpetuated in the cycle that follows generation after generation and is then blamed on your own culture.
But yes, it is a tool that allows Māori to engage with the Crown and vice versa to start the healing process of past harms via Treaty settlements. We are moving towards a post Treaty settlement phase and the healing is continuing.
So the realist in me says the Treaty fits nowhere at this point in time, because there is no substantive understanding by the people and in its simplest form, a constitution empowers the people in our relationship with those that govern us.
Any good constitution must empower our most vulnerable people in their relationship with the state. For reasons that stem back to a multitude of State breaches of the social contract that is Te Tiriti, Māori are disproportionately represented in many of Aotearoa’s most vulnerable groups of people. It is the Treaty that provides the most tangible protection for Māori groups to kōrero with the Crown.
I acknowledge we have a bicultural foundation, but now we live in a rich and diverse multi-cultural state. But the values that derive from the Treaty, I believe are beneficial for all New Zealanders.
The beloved, undefined, principles from te Tiriti, are values that, if you take away the word Treaty, could underpin anyone’s ideal version of a functional and healthy state-citizen relationship.
What this constitutional review does, albeit a few decades late, is highlight not just a lack of civics education, but also that the way in which the Treaty is taught at school needs to change. We are taught facts about the Treaty like dates, but it encourages a disconnect from the majority that the Treaty is something between the Crown and the Māori, because as we know, the Maori are all one group of people. A principled teaching of kotahitanga and manaakitanga are values that all people can relate to.
A constitutional conversation can be a process to encourage understanding of who we are
Do I think the Treaty should be entrenched? No, I do not. The Treaty is a living document and our understanding constantly evolves. Entrenching the Treaty is asking to define something where there is limited consensus. Thus empowering a minority, unelected, unrepresentative demographic of people (arohamai to the judges in this room) to define what the Treaty is. That to me, is dangerous.
But I do think that the kōrero encouraged in this constitutional review process gives an opportunity to revitalise our understanding as a nation of Te Tiriti and to move beyond historical breaches to the benefit of all New Zealanders.
We are kaitiaki of our world today for the people that will follow tomorrow. The Constitution does not just govern our relationship with the State, but also the relationships of our tamariki and mokopuna to come.
I do not think this “constitutional conversation” should lead to a product, that is a written or unwritten constitution, but instead be seen as part of a process to encourage understanding of who we are in this country as a people. And accepting that there is beauty and a shared interest in our sameness and differences.