April 2015 Māori Law Review

Moving beyond a legalistic approach to applying the Treaty of Waitangi in contemporary New Zealand

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. They explain why they contend that New Zealand needs to move beyond a legalistic approach to applying the Treaty of Waitangi.

Discussion

The Treaty of Waitangi is about more than law

It has become commonplace for the legal fraternity to dominate discussions about how the Treaty of Waitangi should be applied in New Zealand. In 1975 the government of the day decided to create an arms-length court-like institution – the Waitangi Tribunal – to hear Māori contemporary grievances (in 1985 the Tribunal’s mandate was extended to historical grievances). That decision gave the legal fraternity an important role in applying the Treaty in contemporary New Zealand. The chair of the Tribunal has to be an experienced barrister and solicitor and judges of the Māori Land Court, while not members of the Tribunal, may also be appointed to preside over an inquiry. Lawyers are inevitably used to present and argue against claims, and the settlements that are agreed with the tribes are enshrined in legislation, the drafting of which again requires legal expertise.

So it is easy to see why many in the legal profession see the Treaty as a legal issue and many legal academics see the Treaty solely through the lens of their profession. We recently wrote a book “Are we there yet? the future of the Treaty of Waitangi”. While about the Treaty, to see this book as being about law, however broadly construed, is a mistake. This book sits firmly within the far wider ambit of the social sciences and the Treaty is a legitimate subject within the social sciences tradition.

The social sciences include the academic disciplines of philosophy, political theory, economics, social psychology, sociology, and anthropology and many others. As a collective, the social science disciplines try to understand human social behaviour – how and why people organise themselves into a ‘society’, how people act collectively, what outcomes follow, what drives social change.

Laws that govern societies are a product of social organisation – the laws are made by social institutions and have force only so long as those institutions are accepted as being legitimate by the people who make up that society. Unarguably law is a part of social ‘science’ too, to the extent it grapples with the issue of how best to give force to collective will within specific institutional contexts. But legal processes and precedents are by no means the be-all and end of how societies organise themselves, the legal lens is a very limiting one.

Take the Treaty of Waitangi. The Treaty is only of day-to-day relevance to lawyers because reference to it is made in the legislation passed by the social institution known as Parliament. The reference to the Treaty could be removed at any point, by a simple majority in Parliament When it comes to the Treaty the real power lies with the public who vote for and are represented by Parliament. So the bigger issue becomes why does New Zealand society choose to include the Treaty in its public life – as reflected in the existence of the Tribunal and the Treaty references in legislation? Is that the right thing to do? What are the consequences of that decision, and what might change in the future?

What does a good society look like?

To answer these questions it is necessary first to have a basic theoretical understanding of social organisation and collective life. In order to understand and assess the way the Treaty is being applied in New Zealand it is necessary to have a view on the most fundamental issues: what does a good society look like, how can diversity to be understood and accommodated in public life, and what does the evidence suggest we should do? These are fundamental questions facing any society and it is not possible to sensibly critique the application of the Treaty in New Zealand without first having an understanding of them.

How can the general public make sense of how the Treaty has been applied in New Zealand if they have not first been given a framework for understanding their society in the first place?

The approach of setting the Treaty within a broad social context is consistent with how many of the New Zealand public understand the Treaty. Among many Māori and interested Pākehā the Treaty is commonly accepted as having created a “partnership”, it acts as a guide to how Māori and Pākehā should behave towards one another. In other words, to many of the New Zealand public, it provides the basis for their society in the broadest sense. It is totally appropriate that they be given the tools to understand their society before then grappling with how the Treaty is being applied within it.

In “Are we there yet? the future of the Treaty of Waitangi” we began the substantive arguments in the book with the question “what constitutes a good society?” This is the obvious starting point – providing a benchmark for all the decisions made by a society (including those relating to the Treaty). The decisions we made at this beginning point are crucial for understanding the rest of the book.

This issue of what constitutes a good society is one contested by both legal theorists and philosophers. Often the word ‘just’ is used in place of ‘good’ so the question legal theorists and philosophers attempt to address is typically “what is a just society?” (instead of  “a good society” but the idea is the same).

The respective disciplines each deal with the issue in their own way but there is some cross-over. In philosophy the field was dominated by John Rawls for decades and his ideas seemed to resonate with legal theorists. Rawls was of the view that a society was just if its institutions (which include laws) met a strictly defined concept of fairness (in a nutshell, would they be supported by a public who were unaware of the place they would occupy in society). We did not do a lengthy review of legal theorists’ ideas about justice but those theorists we looked at did refer to the ideas of Rawls.

In contrast, we opted to adopt the views about what makes a ‘good’ society put forward by Nobel prize winning philosopher and economist Amartya Sen (for example in “The idea of justice”). Sen is of the view that it is not enough to have well-designed institutions. At the end of the day the opportunities facing people and their capacity to exercise choice are what matter. It is on that basis – the opportunity and choice provided to its people – that we are to judge a society. Institutions are just only to the extent they increase opportunities and facilitate choice.

It is no accident that we chose Sen – we are both economists and have admired his work for decades. And we are not the only ones. Sen’s ideas underpin the social and economic development agenda of the United Nations. In other words, when it comes to the real world where societies – including post-conflict ones – have to make substantive decisions about institutions and laws, the world looks to Sen. We make no apologies for doing the same.

The implications of adopting Sen’s concept of justice are too many to adequately summarise here. Suffice it to say that it follows that if the goal is to deliver a more just society one should look at what people themselves say matters to them (covered in Chapters 2 to 4 of our book); one should be aware of the outcomes people are experiencing (Chapters 10 and 11); and one should be aware of arrangements that could deliver greater choice (Chapters 5 and 6). Once readers have this knowledge they are in a position to decide whether the decisions being made in the name of the Treaty are likely to lead to a more just society.

Māori aspirations after the era of easy wins

One of the conclusions we came to is that the tradition in New Zealand of interpreting the Treaty more or less entirely through a legal lens, while necessary and extremely helpful in the past, is becoming increasingly problematic. Grievances over Māori property rights not being respected have dominated Treaty settlements in the past. These issues lent themselves very easily to a legalistic treatment. But the era of ‘easy wins’ is now over.

Now the country faces the more challenging issue of Māori claims that the Treaty of Waitangi and its principles requires the sharing of public power and authority over public resources (the ‘consultation’ and ‘development’ agendas). These issues lie at the very core of any society. They amount to deciding whether or not a society should be ‘democratic’ and on what basis people should have access to public resources. The issues the country faces are analogous to deciding what should count in forming the ‘public will’ and what institutions should give effect to it. It is not the sort of thing lawyers can answer – their authority and legitimacy depends on there first being a consensus about the public will and what institutions should give effect to it. The role of lawyers in the Treaty space is totally conditional.

How to respond to the consultation and development aspirations of Māori can only ever be a decision made by New Zealand society as a whole. The process that will lead to it can only ever be public debate and consensus-formation. The legal fraternity, on these issues of consultation and development, can only credibly sit by and wait for the public to decide.

A related conclusion we came to was that the New Zealand public would do well to look at the international literature on constitutional design – not confine itself to the narrow legalistic interpretation of the Treaty which has emerged over past decades in New Zealand. We do not say that the Treaty is irrelevant for New Zealand’s constitutional debates – far from it – we say New Zealand must not be bound by legalistic interpretations of it and blind to other knowledge that could usefully be applied when designing a constitution.

Response to Max Harris

We had two goals in publishing “Are we there yet? the future of the Treaty of Waitangi” One was to stimulate debate as New Zealand heads into tricky territory, namely having to grapple with Māori aspirations relating to the sharing of power and public resources. Our second goal was to provide the public with a common framework from which to assess the options available to them.

We accepted that by framing the issues within the social science tradition – not as legal issues - we were challenging ‘business as usual’ in New Zealand and, in particular, throwing down a gauntlet to the legal profession. So we expected and welcome criticism from that quarter. However we do expect our views to be accurately reported before then being critiqued. Unfortunately in several areas Max Harris’ review of "Are we there yet?” doesn’t accurately report our views or indeed, the content of the book we have written.

It is not true, for example, that we fail to consider many competing ideas about political equality. In Chapter 5 we discuss at length current international thinking about democracy and equality, we describe the debate within political science over the merits of granting group rights and look at the pros and cons presented by both sides. So the claim from Harris that:

There is much political philosophy work showing that equality does not involve treating people the same, and may involve encouraging and supporting difference; Morgan and Guthrie do not consider this view of political equality…

has no basis in fact. We table at length the competing ideas in this area, including but not limited to those of Will Kymlicka who Harris refers to. We look at the pros and cons of each side in the group rights debate. Moreover we point out the one thing that all political theorists agree on – irrespective of their views on group rights per se – namely, that defining protected groups on the basis of descent (as New Zealand does currently) is a grave mistake. So not only do we consider all points of view, we accurately report a consensus view on an issue of direct relevance to New Zealand. We are left thinking that Mr Harris did no more than skim read the book.

Harris also misrepresents us by claiming we believe Article 2 of the Treaty of Waitangi is limited to natural resources and cultural treasures.

Morgan and Guthrie’s view [is] that the Treaty only entitles Māori to authority over natural resources and cultural treasures…

Here he makes a fundamental mistake. He does not take our suggestions as to how best to progress Māori aspirations, suggestions based on pragmatism, at face value but mistakes them for a particular view on the meaning of the Treaty’s Article 2.

Our view is actually this: “at a minimum Article 2 relates to natural resources and cultural treasures and what more it means is a hotly contested topic.” We make suggestions as to how this hotly contested topic – which amounts to aspirations for Māori to have unique political rights – could be usefully debated by the public.

Our view is that Māori aspirations to power sharing must be debated, it’s important, but using the Treaty to progress that debate faces an uphill battle because of the presence of Article 3. Far better in our view to have the debate using a broader framework based on international political thought.

Harris’ mistake, confusing our suggestions on how to move forward as a particular interpretation of Article 2, reflects precisely the weakness inherent in the ‘business as usual”, legalistic, approach to applying the Treaty. Under the legalistic approach progress is only achieved when, indeed if, endless debate about the meaning of the words used in the Treaty leads to consensus. Pragmatism and reasonableness applied to a debate about group rights could, on the other hand, first of all get us to a consensus about Māori aspirations and, secondly get us there quickly. Harris has fallen into the legal trap of requiring a ‘point of view’ from us on Article 2, and then critiquing it. He has to infer ‘a view’, he is simply cannot conceive debating our recommendations without first assessing ‘where we stand’ on Article 2. We find this disappointingly simplistic.

This misrepresentation of our point of view is so important that we quote directly at length from Chapter 7 and the Introduction:

Article 2 in the Maori-language version reserved for the chiefs their chiefly authority (‘te tino rangatiratanga’) over their land and ‘taonga’ (treasured things) unless they chose to sell (and they could only sell to the Crown). The English version promised undisturbed ownership (‘possession’) and specified more resources than land (it included fisheries and forests and other ‘property’). So far, so good.

However, with its references to ‘chiefly authority’ and ‘treasured things’, rather than ‘possession’ and ‘property’, the Maori-language Treaty had a subtly different meaning to the English version of the Treaty. This introduced two areas of contention. Was the Treaty protecting the chiefly authority that remained after forfeiting control over internal and external security, or was it just protecting the chiefly authority that was exercised in the economic sphere (the normal private right Westerners exercise over any property they own)? And was it just physical property that was covered or all sorts of other treasures too?

You wouldn’t think it would matter too much. But over time two things happened. Maori lost vast tracts of land and other resources, and the role of the Crown expanded into areas of life unimaginable in 1840. So, whereas once the chiefs might have expected to have authority over the economic production in their hapu, losing land and other resources meant they lost that control. As the role of the Crown expanded into areas like education, health and social security, a main function of the hapu – to teach, care for and employ its members – came head to head with government programmes. In time the chiefs lost effective authority over that too. And as Maori opted to migrate to the cities in large numbers after World War 2, this loss of chiefly authority over the day–to-day life of hapu members escalated.

Maori grievances since the 19th century have typically been expressed with reference to Article 2….However, things get problematic when the claim is made that Article 2 applies in areas unrelated to natural resources and taonga. Then there is potentially an inherent dilemma between Articles 2 and 3….

One way to resolve this conflict is to isolate areas of public policy that can be confidently said to only affect Maori, and give authority over these to Maori.[i] But in 21st century New Zealand what, beyond those relating to resources with a Maori interest and cultural treasures, would those decisions be?

Other countries have got around this inherent conflict between group rights (as expressed in Article 2) and individual rights (as expressed in Article 3) by demarcating physical areas as indigenous self-determining territories and allowing indigenous people to live and govern themselves there. However, in New Zealand the Maori population is not as geographically concentrated so we can’t directly uplift this model to New Zealand.” (Chpt 7)

Maori aspirations to have more autonomy, more power and more assistance must be taken seriously and debated on their merits. However, it is foolhardy to try to progress these aspirations using the Treaty and ignoring the international literature on constitutional design… An endless and ultimately unresolved dispute lies ahead of us if Maori continue along this course. It would be far better for Maori to table their political grievances directly – as aspirations for autonomy, power and economic assistance – and debate each aspiration on its merits. (Introduction)

How on earth Harris can conclude we didn’t address tino rangatiratanga in the book defeats us. There are other factual errors in Harris’ review too. For example, he claims we

also err in asserting that it is “simply a matter of political convenience” that Treaty settlements are negotiated with iwi. Morgan and Guthrie are here not giving sufficient weight to the text and context of the Treaty, and the fact that the Treaty refers to chiefs and tribes.

Harris needs to learn his history. In fact the operative social unit in 1840 when the Treaty was signed was the smaller social group known as hapu. Hapu were led by rangatira or chiefs and it was hapu chiefs who signed the Treaty. Iwi simply didn’t exist as an operative social group at the time. It was impractical in the 1980s onwards for any government to settle with each and every hapu (they were too numerous) so the decision was made to group claimants according to common ancestry (not social relevance) and thus iwi gained their prominent status as tribal claimants. Settlement with iwi was absolutely and utterly a matter of political convenience, a fact that Māori do not dispute.

We welcome public debate about the Treaty and its role in contemporary New Zealand. However for that debate to be useful it is important that different points of view be fairly represented.

Note

Max Harris has provided his brief response to the main points advanced by Morgan and Guthrie here. See Are We There Yet? The Future of the Treaty of Waitangi: A response to Morgan and Guthrie.

[i] The historical potential for Maori to be self-governing was explored extensively in the Waitangi Tribunal report on the Combined Central North Island Regional claim: Report Summary https://forms.justice.govt.nz/search/WT/reports/reportSummary.html?reportId=wt_DOC_68569572 [Accessed January 2014].

Author: Gareth Morgan

Dr Gareth Morgan is an economist, public policy analyst, portfolio investor, motorcycle adventurer and philanthropist. Through the Morgan Foundation Gareth has instigated a series of books on issues of public interest. Gareth’s directorships have included a national legal firm, publicly listed companies, advisory boards of government departments, New Zealand’s largest web site auction house TradeMe Ltd, and Leite Verde SA a Brazilian dairy industry business. Gareth graduated from Victoria University with a PhD in economics 1982.