April 2015 Māori Law Review

Are We There Yet? The Future of the Treaty of Waitangi: A response to Morgan and Guthrie

Max Harris wrote a review of Are We There Yet? The Future of the Treaty of Waitangi by Gareth Morgan and Susan Guthrie (Phantom House Books 2015). Gareth Morgan and Susan Guthrie have written an article for the Māori Law Review in response to that review in order to explain why they contend that New Zealand needs to move beyond a legalistic approach to applying the Treaty of Waitangi.

Here, Max Harris provides his brief response to the main points advanced by Morgan and Guthrie.

Discussion

It is helpful and illuminating to have Gareth Morgan and Susan Guthrie’s further contribution in the Māori Law Review to the debate about the future of the Treaty of Waitangi in New Zealand.  I do not intend to write a lengthy response to the points they make about my review of their book, for three reasons.

  1. I attempted to read Morgan and Guthrie’s book with care, and to treat it even-handedly in my review.  Readers of the Māori Law Review can read Morgan and Guthrie’s book (something I encourage readers to do) and judge for themselves whether I have represented their arguments reasonably and whether those arguments are persuasive in their own right.
  2. It is time for other voices and perspectives – other than my own, and Morgan and Guthrie’s – to be given greater prominence. The voices and perspectives of Māori obviously deserve particular weight in this debate, since it is Māori who are most affected by historical injustices in Aotearoa New Zealand.
  3. Constraints of timing prevent a longer reply from me. I wish only to make some brief comments here about the two major points that Morgan and Guthrie make about my review.

A legal trap?

Morgan and Guthrie claim that I have fallen into a “legal trap” of wanting to know “where [Morgan and Guthrie] stand” on the meaning of Article 2 of the Treaty of Waitangi, without debating their recommendations. They say that this “reflects precisely the weakness inherent in the ‘business as usual’, legalistic approach to applying the Treaty”. They also make the point earlier in their article that it is a mistake to see the Treaty only “as being about law, however broadly construed”: “the Treaty”, they write, “is a legitimate subject within the social sciences tradition”.

I entirely agree with Morgan and Guthrie that the Treaty is not only about law, nor only for lawyers; it is a constitutional document that is relevant to politics, culture, and other fields of New Zealand life. This is an important point, and Morgan and Guthrie make some useful comments about why political philosophy and other disciplines are relevant to the Treaty, as I noted in Part Three of my review. (I did not spend more time discussing these matters in the review because I felt, perhaps wrongly, that Māori Law Review readers would be most interested in the implications of the book for law, construed very broadly.)

What I am less sure about is whether I have fallen into a particular “legal trap”. I agree with Morgan and Guthrie that there is some core meaning of Article 2 of the Treaty, and that there must be public debate about how that core meaning is applied. The real fault-line between us is, I think, in the views we have about what that core meaning is. For Morgan and Guthrie, as they say in their article, “at a minimum Article 2 relates to natural resources and cultural treasures and what more it means is a hotly contested topic”. For myself, I think drawing a ring around natural resources and cultural treasures is arbitrary and unprincipled, and I prefer to take an approach to Article 2 that puts ‘te tino rangatiratanga’ at its centre.

It would be interesting to hear further Māori perspectives on this issue, since this debate is far from an academic or legalistic one for Māori in particular – and affects how we should judge what amounts to past and future violations of the Treaty.

Learning history

Morgan and Guthrie say, second, that I have misrepresented their arguments or misunderstood history. They say that I am wrong to claim that they did not consider notions of political equality that understand equality as involving encouraging and supporting difference.

I maintain my preliminary view (which others may disagree with) that they pay insufficient attention to these more complex definitions of equality. Whilst Morgan and Guthrie do quote Will Kymlicka on group rights, for example, they do not examine his broader work on equality. I think this leads Morgan and Guthrie to being too abrupt in assuming a conflict between Article 3 and Māori claims for power-sharing based on Article 2. In their review, they say, for example, “Māori aspirations to power sharing must be debated … but using the Treaty to progress that debate faces an uphill battle because of the presence of Article 3.”

To put my position simply: I do not think the use of the Treaty to progress that debate “faces an uphill battle”, because I believe a more nuanced understanding of equality (in Article 3) might see power-sharing (via Article 2) as entirely consistent with the achievement of equality.

Finally, Morgan and Guthrie say (a little sharply, perhaps!) that I “need to learn [my] history”, and that iwi “simply didn’t exist as an operative social group at the time”, meaning that it is “simply a matter of political convenience” that Treaty settlements are negotiated with iwi today.

I do not think the historical position is as black-and-white as Morgan and Guthrie suggest (my understanding is that iwi began to assume increased importance over the course of the nineteenth century), but I am happy to stand corrected.  My point, which I could have made more clearly, was merely that it was not inconsistent with the Treaty’s emphasis on rangatira in Article 2 for settlements to occur with iwi today.  To say that these settlements are just a matter of “political convenience” seemed, and still seems, to me to be too strong a claim.

He whakawhiti kōrero

This back-and-forth has been useful, I think, in allowing Morgan and Guthrie – and myself – to clarify and sharpen our arguments. My hope is that such arguments can now spur further debate on the Treaty of Waitangi, the New Zealand constitution, and New Zealand society today and in the future.

Author: Max Harris

Max Harris is an Examination Fellow at All Souls College, Oxford. Prior to post-graduate study at Oxford he was a clerk to Chief Justice Dame Sian Elias at the Supreme Court. He has a BA/LLB(Hons.) from the University of Auckland (where he majored in Political Studies and History). He has also previously been the co-chair of JustSpeak, a youth-based criminal justice group.