Are We There Yet?: The Future of the Treaty of Waitangi

By Gareth Morgan and Susan Guthrie

Three questions: ‘Where have we got to with the Treaty of Waitangi?’; ‘Is where we have got to a good place?’ and ‘Where do we go from here?’ Simple questions we thought. But nothing is simple when you start asking questions about the Treaty of Waitangi. Two years later we have emerged battered and bruised but with something we want to say. ‘Folks, we might be about to crash the truck and you’re not even looking!”

• Language: English
• Publisher: BookBaby
• Release date: Jan 20, 2015
• ISBN: 9781483545530

Book preview

Acknowledgements

The prospect of investigating what is happening in New Zealand in relation to the Treaty of Waitangi was daunting. It was clear we were going to need to talk about the issues with a large number of people. Before we could ask anyone a sensible question, we needed to familiarise ourselves with New Zealand’s history and in particular the circumstances around the signing of the Treaty of Waitangi. New Zealand is very fortunate in her historians. Scholars like Claudia Orange, Dame Anne Salmond, Professor Richard Hill, James Belich and the late Michael King have produced a wealth of accessible material which brings New Zealand’s past alive. We would like to make special thanks to Professor Richard Hill who provided welcome insights and feedback.

Surveys and statistics have played a significant role in this project. Two surveys we found especially valuable were the Survey of New Zealand Values, a research project led by Dr Paul Perry from Massey University, and the New Zealand General Social Survey (NZGSS) produced by Statistics New Zealand. Dr Perry, and Philip Walker and Scott Ussher from the Statistics New Zealand NZGSS team, gave generously of their time and helped us to navigate this important data. If there are any errors in the analysis we present, they are, of course, entirely our own.

Researchers like us, who operate outside the university system, would be able to investigate very little were it not for the openness and accessibility of New Zealand’s academic community. We were fortunate to have opportunities to talk law with legal experts; ideas about culture with anthropologists, sociologists and psychologists; constitutional issues with lawyers and political scientists; education with education researchers; community health with public health experts; Māori and Pasifika aspirations with specialists in those fields.

There are too many people to thank individually but we would like to acknowledge the huge depth of knowledge present within New Zealand’s universities, something which we think is not acknowledged often enough. While our views were informed by these discussions and the material we were directed towards, we accept full responsibility for the views we express here.

To everyone who has contributed to this project, thank you for helping us on this journey to understand our country better.

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First published in 2014 by The Public Interest Publishing Company Ltd (PiP).

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Copyright © 2014 by The Morgan Foundation.

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ISBN: 9781483545530

Contents

Introduction

Chapter 1:

Progress

Chapter 2:

Ethnicity

Chapter 3:

Evidence about the importance of ethnicity

Chapter 4:

New Zealand’s ethnic groups

Chapter 5:

Governing society

Chapter 6:

Governing arrangements in New Zealand

Chapter 7:

The Treaty of Waitangi

Appendix to Chapter 7:

The Waitangi Tribunal, Parliament and the Office of Treaty Settlements

Chapter 8:

The development principle

Chapter 9:

The consultation principle

Appendix to Chapter 9:

Unique Māori rights with respect to natural resources and cultural treasures

Chapter 10:

Socio-economic disadvantage

Chapter 11:

Family and community life, and education

Chapter 12:

Reflections and new directions

(Endnotes)

Index

Introduction

It has been a long time coming, but New Zealanders and their political leaders are getting to grips with the harm done to Māori culture and Māori communities by 19th century British settlement. Other countries with a history of colonisation have been grappling with their own version of this issue too. The process of exploring the impact of colonisation, and trying to put things right, is an international one. It began in the late 1970s and continues to this day. It is not too much of a stretch to call this a process of reconciliation.

No one can have a complete understanding of the past, but it is possible to learn a great deal from history. History shows, for example, that a great deal of harm is done when ideas, values and practices from one culture within society are overlooked or actively suppressed by others. Individuals within these cultures can lose their sense of self, they can falter and lose their direction and strength. People from small cultural communities living alongside a large majority are especially vulnerable. The effects can continue across generations.

Cultural loss or suppression due to colonisation is not the only factor causing harm to indigenous communities. Although it is rarely acknowledged in New Zealand, being culturally and socially disconnected from the wider society is damaging for individuals too. International empirical evidence has shown time and again that identifying with and being connected to both one’s own culture and the wider society is the best option for those from minority groups.

History also shows us that Māori culture, like many indigenous cultures, is centred on place. Having an ongoing relationship with the physical landscape is important to Māori.

With the value of hindsight then, it is no wonder that Māori communities were torn asunder by colonisation. Within one generation, Māori communities were surrounded and outnumbered by foreign settlers who successfully implanted their ideas, knowledge and political processes throughout the country. Settlers also acquired exclusive rights across much of the landscape, severing Māori connections with place. Urbanisation from the 1950s added further pressure, while falling behind in education and in the job stakes disconnected many Māori from the economy.

Colonisation began over 170 years ago in New Zealand but the effects can still be seen today in the over-representation of Māori among those with poor health and low incomes, for example, and among those in prison.

The challenge facing New Zealand in the 1970s was how to go about the reconciliation process. An obvious answer was to begin by acknowledging the Treaty of Waitangi signed in 1840. This document did, after all, kick-start the whole colonisation process. It was an agreement between British and Māori to live together in this place. Māori had always seen the Treaty as central to their relationship with the rest of New Zealand. It took time, but eventually the rest of New Zealand came to agree.

New Zealand’s political leaders decided in 1975 to put the Treaty at the centre of the reconciliation process. The issue then became how best to use the Treaty. The decision was made to treat the written clauses in the Treaty as benchmarks against which to judge what happened subsequent to 1840. Māori grievances thus became couched in language relating to the Treaty, and arguments were anchored around the wording used in the Treaty’s clauses (the three ‘Articles’). Waitangi Tribunal findings and court rulings have been invariably expressed in language relating to the Treaty.

There is a very important point about the Treaty’s role in the reconciliation process that is often overlooked. The Treaty is not a legal obligation imposed on either Māori or non-Māori. It is tool that is being used to help the reconciliation process. The Treaty has been successful as a tool because it has great symbolic power. The Treaty is used by the Waitangi Tribunal, the Courts, lawyers, government departments and Māori to arrive at decisions they believe will receive widespread support eventually, if not immediately. These decisions are about how resources and political power are to be distributed between Māori and non-Māori. These decisions are often subsequently translated into legislation, which is legally binding, but the Treaty itself has no legal power. In its current role the Treaty simply acknowledges there is a political relationship between Māori and non-Māori and it is the job of the Tribunal, the Courts, Parliament and government departments to work out how that relationship plays out in practice every day.

In the early days of reconciliation, many of the grievances related to land that was once in the exclusive possession of particular tribes and was culturally important to them. The loss of cultural ideas and knowledge – such as the Māori language – often lay at the heart of grievances too.

Grievances relating to events that happened in the past are known as ‘historical claims’. Reconciliation of historical claims has been achieved by settlements, which include an official apology and typically some combination of financial settlement, acknowledgement of unique roles (akin to compromised property rights) for Māori tribes with respect to land remaining in public ownership, and direct land transfers to Māori tribes.

Where the grievance has been largely about land and cultural assets the approach of using the Treaty to bring about reconciliation has generally worked smoothly. The importance of land and cultural assets is now well understood and widely accepted and the wording used in the Treaty – in Article 2 – sends a strong message about the intent of the Treaty signatories. It was their intent that Māori retain their lands and ‘treasures’. Thus we see that grievances relating to lands and treasures that were lost have generally been understood and accepted by non-Māori. It is a fact that well over $1 billion in land and other assets has been transferred to tribes with no disruption or even significant disagreement from non-Māori.

Not all Māori grievances relate to land and cultural assets though. Māori also have political aspirations. Māori have long sought authority to make decisions about public policies and programmes that affect Māori. Sometimes this translates to a demand for more community self-autonomy – Māori leaders having a larger role in Māori communities – and sometimes it translates to demands for more political power – Māori leaders having a greater say in policies that affect all New Zealanders. Māori have also sought economic assistance because without resources all the self-autonomy and political power in the world won’t deliver a higher level of well-being to struggling communities. These political aspirations are not unique to Māori – they are demands made by indigenous groups around the world, irrespective of whether or not a Treaty was ever signed.

Māori have chosen to use the Treaty claims process to pursue these political aspirations. Māori typically blend these three goals – autonomy, power and economic assistance – into one aspiration summed up by the Māori word ‘rangatiratanga’, which can be roughly translated as chieftainship. Article 2 of the Treaty promised Māori rangatiratanga over their lands and treasures. Rather than focusing on the lands and treasures aspect of Article 2, when presenting their political grievances/aspirations Māori emphasise the rangatiratanga aspect of Article 2. Māori have been supported in this by the Waitangi Tribunal, which has spent considerable time discussing claims to rangatiratanga, often finding in favour of Māori.

However, this aspect of the reconciliation process is risky for New Zealand. Using the Treaty to couch a claim for more power over policies that affect all New Zealanders is particularly problematic. Article 3 of the Treaty states explicitly that everyone – Māori and non-Māori – is a citizen with the same rights. That precludes Māori or anyone else having more political power than anyone else. So the Treaty cannot be used to support Māori aspirations for unique political rights. The Treaty has been a great tool to reconcile grievances relating to land and cultural treasures but it can’t credibly be asked to support granting more political power to Māori than is available to anyone else. A new approach is needed to discuss that aspiration.

A second problem relates to the wisdom of the request. The adage ‘be careful what you wish for’ resonates here. Around the world much thought has gone into the best way to govern countries made up of different ethnic groups. While the is much the experts don’t agree on, they all acknowledge that giving groups defined by descent unique political powers risks creating social divisions over time that would not be there otherwise. Governing arrangements in which a select group has unique political rights have the potential to create ever-greater social divisions.

This is not because the rest of the population feels aggrieved and grumpy – they may, but the argument against group political rights is more sophisticated than that. When unique political power for some groups is created, the leaders of those groups are incentivised to accentuate the difference between their group and the rest of society. They fear any awareness and acknowledgement of common ground between the group and the wider society because that may lead to the questioning and ultimately loss of the unique rights held by the group. So, political arrangements that create unique group rights can trigger a dynamic parting of the ways within society that is artificial but no less powerful for that.

The Tribunal has found in favour of Māori grievances relating to rangatiratanga. The Tribunal has supported Māori calls for more autonomy, more power and more economic assistance. However, in its analysis the Tribunal did not discuss the limits Article 3 may pose on Māori aspirations for more political power, nor did it report what is known internationally about the risks of political systems that recognise unique group rights. Failure to assess the arguments for and against Māori grievances related to rangatiratanga in a balanced way is such a significant gaffe by the Waitangi Tribunal that its objectivity can fairly be questioned. It is pretty clear that this institution is ill-equipped to deal reasonably with Māori political aspirations (which are typically couched as ‘contemporary claims’). The 2013 Constitutional Advisory Panel, which simply endorsed rather than critically assessed the Tribunal’s view, also failed to provide the balanced assessment New Zealand needs.

Māori 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. The goodwill of the rest of New Zealand will be sorely tested. It is stretching the Treaty too far and risks undermining its status among non-Māori. An endless and ultimately unresolved dispute lies ahead of us if Māori continue along this course. It would be far better for Māori to table their political grievances directly – as aspirations for autonomy, power and economic assistance – and debate each aspiration on its merits.

On the issue of Māori autonomy it is clear that devolution of authority to communities – not just Māori communities, but any community – has the potential but not the promise to improve wellbeing, so it is something everyone should be open to. However, it needs to be done carefully, and communities need to be resourced appropriately. To date, New Zealand has devolved authority in education and made a poor job of it. Māori may value these opportunities more than most, so this policy failing is especially harmful to Māori. In sum, autonomy can be a good idea, and if devolution is done well, it has the potential to increase well-being for anyone. Delivering on this Māori aspiration has the potential to benefit everyone, so it is a win-win option.

On the issue of political power, unique political rights for Māori risk creating significant artificial social divisions. There are other risks too. These risks may be worth it if – and it is very big if – Māori are permanently excluded from political life. In other words, if Māori views would never otherwise be reflected in the decisions made by Parliament or by government officials, then it might make sense to have unique roles for Māori within Parliament and within the bureaucracy (as we currently have with the Māori electoral seats and reserved positions on Departmental advisory boards, for example). But this is a very high bar. It is possible that more devolution might deliver the authority Māori seek, making the aspiration to have more political power redundant.

On the issue of economic assistance, it is clear that not only Māori but Pasifika too, and large numbers of Pākehā (settler descendants), endure economic and social poverty. By all means the New Zealand Government should direct economic assistance to those in need, but this is not a Treaty issue; it is a human rights one. New Zealand is signatory to the United Nations Declaration of Human Rights, which protects the most vulnerable in society. Treating disadvantage as a Treaty issue risks overlooking the very real needs of non-Māori.

Of the three aspirations, Māori seem to have made most ground on that relating to political power. We still have the Māori electoral seats, and increasingly government departments are creating reserved positions for Māori within their decision-making processes. Government officials are creating group rights on an ad hoc basis. Meanwhile little is done to extend and make better devolution, which could reduce Māori demands for risk-laden accommodation at the heart of New Zealand’s political life.

Discussing the merits of group rights is long overdue. However, New Zealand currently has no credible forum in which to have this debate. The Tribunal has shown it cannot be relied upon to be objective. We suggest that a new institution be created to hear Māori contemporary claims, and moreover that any group can take what are in effect claims for constitutional reform to this forum.

We also call for New Zealand’s twenty-year experiment with devolution to be assessed thoroughly and objectively. That means doing hard-headed assessments of how well communities implement policies designed to help those who are mentally or physically ill, illiterate or unskilled in other ways, trying to rehabilitate after a time in prison or in other ways disadvantaged. Giving communities more authority over policies designed to help those who struggle is no guarantee these interventions will work. Devolution itself is not sufficient. It also means looking at examples that work well and thinking how devolution can be extended into new areas. We think there are plenty of opportunities to do better here.

To get the maximum benefits from devolution and to be effective at addressing disadvantage we need healthy relationships between central government and communities, and between Māori and non-Māori. That requires two-way respect and trust, which, despite three decades of reconciliation, still appear as elusive as ever. So underpinning everything should be a search for creative ways to connect New Zealanders to each other and to their governing institutions. We think radical changes in welfare and tax policy can make a useful contribution here.

The organisation of this book traces our two-year journey exploring the course New Zealand is taking with the Treaty of Waitangi. In Chapters 1 to 6 we set up our framework for thinking about the Treaty. Chapter 1 looks at the idea of progress. What is it and how can we make some? We find out that progress is about becoming a society where people live the lives they value and have the freedom to choose the lives they live. Chapter 2 looks at the importance to people of groups, and explores why ethnic groups in particular matter so much. In Chapter 3 we look at what the evidence says about the relationship between ethnic group membership and wellbeing, and the effectiveness of tailoring social policies to ethnic groups. In Chapter 4 we look at the ethnic groups present in New Zealand.

In Chapter 5 we look at the debate among political theorists about the best governing arrangements for diverse societies. Chapter 6 is about New Zealand’s governing arrangements.

In Chapters 7 to 9 we look in detail at how the Treaty of Waitangi has been applied in New Zealand, focusing on some of the most recent interpretations. Chapters 10 and 11 examine the problem of socio-economic disadvantage and the particularly disturbing fact that Māori and Pasifika are more likely than most to have to endure it. In Chapter 12 we reflect on what we have discovered and offer suggestions for change.

In no way do we claim that this is the final say on the value of what is occurring in New Zealand in the name of the Treaty, and that others should sign up to our conclusions without question. We have had to grapple with the academic disciplines of psychology, philosophy, law, political science, history and others to get this far. Through necessity we selected a sample from the wealth of material available and inevitably this will have influenced what we found. Ultimately what we wanted was to start a conversation about where New Zealand is heading, with everyone in the room – not just the lawyers and the politicians – having the same essential information.

CHAPTER 1:

Progress

For a project like this, the starting point is always some ‘blue sky’ thinking. We needed a vision of what a great society might look like to act as a yardstick or framework for thinking, against which we could judge the real world. We started with the idea of ‘progress’. What would progress from this point be? Initially we had no fixed idea about what progress in a culturally diverse country like New Zealand might look like. In this chapter we look at what some of the best philosophical thinkers around the globe say about it.

The impartial spectator

With the notable exception of United Nations inspectors¹ giving their ten cents’ worth, the whole business of the Treaty and Māori grievances seems to have been a New Zealand problem, grappled with by New Zealanders in New Zealand with only occasional outside help. And no doubt, that is how New Zealanders like it; DIY till we die. But this approach has risks. New Zealanders might miss the perspective of outsiders. They might be too close to the issues to be reasonable and fair. Another option would have been to hand the whole business over to an international panel, but who knows where that would have led? Certainly no politician has been brave enough to suggest it.

We, as the authors of this book, were keen to investigate the Treaty but we were both born and raised in New Zealand. We can’t possibly have the perspective and balance of an outsider. How can we develop useful insights and weigh up the issues fairly?

We have attempted to get around this dilemma by adapting a device relied upon by the 17th century philosopher-economist Adam Smith. We have looked outside New Zealand to answer the big questions: what is progress and how might it be achieved? Then, through that uncorrupted lens, we have tried to assess what has gone on in New Zealand and what may yet be done. Of course, we have also looked at what knowledgeable New Zealanders have said, thereby combining, we hope, the best of outsider and insider knowledge.

Adam Smith’s approach to judging arrangements in society has been described thus:

In Adam Smith’s famous use of the device of the ‘impartial spectator’, the requirement of impartiality requires… the invoking of disinterested judgements of ‘any fair and impartial spectator’, not necessarily (indeed sometimes ideally not) belonging to the focal group. Impartial views may come from far or from within a community, or a nation, or a culture. Smith argued that there is room for – and need for – both.²

Adam Smith’s insistence that we must view our sentiments from a ‘certain distance from us’ is motivated by the objective of scrutinising not only vested interests, but also the hold of traditions and customs.³

That sounds just the ticket – peering from a distance in order to free ourselves of vested interests, traditions and customs.

Who then is to be our ‘impartial spectator’?

To get an idea of what progress in a diverse society might look like we have looked to economist and philosopher Amartya Sen and internationally recognised political scientist Professor Robert Putnam for guidance. As we have explored other issues we have also drawn on a host of other internationally recognised social scientists. Later in the book we will describe how broad international opinion about indigenous rights, as expressed by the United Nations (UN), has the potential to impact here. The UN provides yet another ‘fair and impartial spectator’ as invoked by Adam Smith.

Let’s start with a word or two about ‘progress’.

Progress

The Oxford Dictionary has a couple of definitions of ‘progress’. One definition is development towards an improved or advanced condition.⁴ However, that begs the question of what is an ‘improved or advanced condition’?

For an individual person the answer to this isn’t straightforward. When it comes to a whole society it gets really tricky.

Everyone probably has a pretty clear idea about what being in a better position might look like for themselves – earning a bit more money, having better health, having more close friends, witnessing improvements in society they have long supported, achieving goals for their children or all of these things.

However, it is also true that through wilful or accidental ignorance we often don’t see clearly what progress we should be trying to achieve. A drug addict, for example, might see progress as finding a cheap and reliable supply of heroin, whereas having access to medical help and rehabilitation would result in a life that would be on balance ‘better’ (with a longer life expectancy, for example). So reasonable or ‘real’ progress for people might actually be something they themselves don’t seek.

It is tempting for economists to equate individual progress with material wealth or, in fuzzier moments, happiness; but neither increased wealth nor greater happiness necessarily amount to progress. You could be richer but far less healthy, for example, so no better off, or happier but ignorant of your lower life expectancy (think of our heroin addict). And of course, as economists are always keen to point out, every choice is ‘budget constrained’. Making progress in one sphere (for example, going to university) might mean sacrificing progress elsewhere (for example, no wages for a few years).

So even for individuals nailing ‘progress’ is not a simple matter.

It is also true that in some cases one person’s progress might be at the expense of another’s – think of how queue jumpers improve their lot but make others worse off. That means progress for a society as a whole can’t simply mean everybody getting closer to their individual goals.

Given the fundamental importance of individual progress to everyone, the possibility that people may not know what true progress looks like, the necessity to make tradeoffs between goals, and the fact that progress may be ‘zero sum’ – it might only be achieved for one at someone else’s expense – it is no surprise that achieving progress at a society-wide level has occupied the minds of philosophers, social scientists and reformers for hundreds if not thousands of years. And of course elected political leaders trade in the currency of progress, forever trying to detect what people perceive to be progress and promising to deliver it.

We can take as a starting point that progress happens when someone has a greater likelihood of achieving the life they value (and that change is consistent with something most people would support too, such as good health). Of course these things will differ from person to person.

Economists who have specialised in designing policy for third world or ‘developing’ countries have led the way in identifying and measuring individual and social progress. Faced with limited public funding and quite literally life and death policy choices – between feeding the population and schooling it, for example – they have had to find robust ways of recognising what people value, reflecting that in policy and monitoring what actually happens.

What the umpires say about progress – Amartya Sen

Nobel Prize-winning economist and philosopher Amartya Sen comes originally from India and is recognised as a leading light on economic development issues. Sen is one of the great thinkers of our era, hailed the Times in 2009,⁵ and the UN has applied his ideas when measuring progress in countries, using them as the basis for the UN Development Index, for example.⁶ ⁷

Sen’s ideas relate to conceptualising, defining and measuring individual wellbeing.⁸ Sen equates wellbeing with individuals having the opportunity or ‘capability’ to live in ways they value. Sen calls these opportunities ‘valuable beings and doings’.⁹ It is valuable being healthy (a being) and going to school (a doing) for example.

Sen’s ideas have come to be known as the ‘capability approach’. He is not prescriptive about what states or activities people should value or ultimately choose – and he emphasises that people may be altruistic, valuing activities and states that benefit others at their own expense. He says that societies need to think and debate publicly to work out which individual ‘beings and doings’ should take priority in government programmes (for example, increasing access to education). Sen calls this process of the public deciding what to do an exercise in public reasoning.¹⁰

With Sen’s approach you need to factor in many things if you want to improve individual wellbeing or ‘capability’. You need to know what beings and doings people value. You need to know what sort of income and other material resources they have (something Sen refers to as ‘opulence’). You need to know what non-material resources they have too, such as a wide network of social support. And you need to know how easy it is for people to convert these resources into the beings and doings they value. They may be prevented in this by political oppression, for example, or restrictive social and cultural norms, or inadequate public services.

Sen also says that freedom to choose is an important part of capability – not only because it makes it more likely that resources will be converted into valuable lives (people know best what they want) but because the presence of choice is itself intrinsically valuable (we like to have freedom, even if we use it to make bad choices).

Sen’s ideas aren’t always easy to apply in practice, and an example may be helpful. Take a young woman whose family earns a low income. Our goal is to meaningfully expand the set of valuable beings and doings realistically available to her. To achieve this we can increase the resources available to her family directly through welfare payments or tax changes. We can increase the amount of resources in her school that are communicated in her family’s language and so are more effectively available to her. We can implement policies that outlaw discrimination against her in the workforce.

However, the increased resources and other policies will only be converted into more valuable opportunities for the young woman if:

we know what her aspirations are. (If she had a serious health issue nothing we would have done above would have significantly added to the activities or states she could experience.)

her family share their increased resources with her. (This will partly reflect their cultural norms.)

she knows the language used for the new resources at school. (This reflects her stock of knowledge including that specific to her own culture.)

she is encouraged to access the new resources at school (reflecting social and cultural norms), and

she is not prevented by her parents from choosing paid work if she prefers.

We can’t simply say that because we have increased the resources potentially available to her, we have achieved progress. We may not have expanded her opportunities at all. It depends on her own aspirations and needs and the interaction between the available