Book of the Week: How to honour te Tiriti

The newly published Te Tiriti o Waitangi Relationships: People, Politics and Law is the third of a Bridget Williams Books series which started with a 2004 volume on the Waitangi Tribunal, and was followed by a collection on Treaty settlements in 2012. Its intention is to present what “leading scholars and researchers” have explored in the development of relationships  between Māori and the Crown. It is edited by three senior University of Otago academics, Metiria Stanton Turei, Nicola R Wheen and Janine Hayward, who also contribute essays.
The book is described as “deeply researched but also accessible” and a “valuable resource”. Deeply researched it is, with nearly 600 footnotes underpinning 11 essays and with a dozen pages of bibliography. Accessible it is not, unless the editors mean that it will be for those of the nation’s academics, bureaucrats and lawyers who need to keep up to speed with what is happening beneath the surface of political debate and media commentaries. For them, and lay readers willing to make the effort, it provides instructive insights into current academic and legal thinking.
There are two fundamental starting points for this book. First, the Treaty of Waitangi, that is the English version, is null and void. Te Tiriti o Waitangi rules. Secondly, as is made clear in an editorial note, “Reference to te Tiriti o Waitangi in these pages invokes the expectation that Māori did not cede sovereignty and are guaranteed the ongoing exercise of tino rangatiratanga.” The use of the word “expectation” is a nod to the current Treaty Principles Bill and its implications for both sovereignty and tino rangatiratanga but, it seems, with the expectation, or least hope, that it will come to nothing substantive in the end.
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If the reader has doubts about this editorial note, the first chapter, ‘Propagating the Myth that Māori Ceded Sovereignty’, by Tim McCreanor, Heather Came and Grant Berghan, sets out to remove them, drawing on a range of evidence. This begins with the 1835 Declaration of Independence “signed by fifty-two rangatira” which led to te Tiriti o Waitangi being negotiated as a “peacetime treaty to establish the terms and conditions of their relationship with Britain”. What is not made clear is that the fifty-two rangatira were almost all Ngāpuhi, as were all the signing rangatira on February 6, 1840. But the English Treaty was an “impoverished text produced by second-language te reo speakers for English administrative colonising purposes and should be treated as such”.
On the other hand, te Tiriti, under the contra proferentum contract law principle, means that its oral presentation and discussion “should have been taken as modifying and enlarging the written text,” applying  “discursive Treaty analysis”. This means using a wide range of linguistic techniques to arrive at what people actually meant when they discussed or agreed to anything. “Critical Tiriti analysis is a discursive, decolonising evaluation strategy that makes te Tiriti the focus of scholarly activist research for societal transformation.” Therefore, to cut to the point, the English language Treaty and its interpretation, that the Crown has always based its law and administration on, “cannot be claimed as a negotiated mutual agreement between nations as te Tiriti is”. It is a myth that has been used to “legitimate the unjust and dishonourable colonial society in which we live”.
Agencies of the Crown, such as the State Services Commission and Te Papa, have been complicit in the development of the ‘principles’ which have “always been a dishonest fabrication of the truth”. They allow the Crown to “get on with its business of legitimising its illegal theft of this country, its people and resources. It is past time we got rid of them.”
The kind of black and white conclusions expressed in this chapter should alert attentive readers to minds that brook no counter argument or discussion. This essay does not consider that any “discursive analysis” that involves examining “word choice, sentence structure, narrative flow and cultural ‘common sense’, along with unexplained assumptions, strategic silences and contested interpretations” might conceivably come up with very different, even opposite, conclusions. No chance of “Chinese whispers” then, and all hail Michel Foucault.
There is no discussion about what the Crown is, except that it is illegitimate, a thief, even of people. Presumably the Crown referred to is the elected Parliament and its government, of which a quarter are Māori representatives, as well as its arms that include our Māori Governor-General. This is no myth, nor the presence of a large non-Māori population that, 185 years on from te Tiriti/the Treaty, genuinely believe they belong here, and nowhere else, and wish to make the best of it, including justice for all.
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Mihiata Pirini takes a calmer approach in Chapter 2 ,’The Treaty of Waitangi in Policy Development’. Quoting past minister for Māori-Crown relations, Kelvin Davis, that the “‘public sector is not yet ready to manage the Treaty relationship, let alone become partners to Māori”’, Pirini sets out the need for further research and training so that the “Treaty interest is a task required every time policy officials are determining the implications of the Treaty for a policy project.” They should embrace actively “the constitutional nature of their role”. This can be done by officials “drawing on a nuanced understanding of the integrated environmental, economic and social values held by Māori’”.
This encompasses the role of tikanga in policy development which has already found its application in different areas of the justice and social welfare systems. The problem is that “Questions will arise as to which tikanga values are relevant and how those tikanga values ought to apply, keeping in mind that tikanga is applied in different ways across different iwi and hapū.”  Exactly. Tikanga is a moveable feast and although its application was tentatively recognised as far back FitzRoy’s governorship in 1844, it does not fit easily with a British-derived justice system which establishes (and discards or modifies) laws intended to apply equally across an entire society and its individuals.
Nicola R Wheen and Janine Hayward in ‘Treaty Principles Clauses: Past, Present and Future’ (Chapter 3), cover the developing application of Treaty principles in legislation. “Treaty principles clauses have been controversial. On the one hand they have been criticised … as being too vague and expansive … On the other hand they have been criticised as a government device to avoid acknowledging and addressing the Crown’s obligations to Māori” as stated in the text of te Tiriti (see Chapter 1).
By examining in detail the Conservation Act 1987, the Crown Minerals Act 1991 and the EEZ and Continental Shelf Act 2012, the authors show the rising tension between government and the judiciary in their approaches to the application of Treaty principles and the consequences of attempting to repeal them. The 1987 example “reveals that the principles identified by the [Waitangi] Tribunal and the courts using broad sections have been expansive, and have played an important role in defining and enforcing the Treaty relationship”. The second and third examples reveal that “Parliament seems to be trying more comprehensively to limit Treaty principles to consultation”. But over the past 30 years the “courts have framed the Treaty as part of New Zealand’s constitutional foundation” and “although the future of Treaty principles clauses in law may be uncertain, the courts’ interpretation of the Māori-Crown relationship will continue to be guided” by the Treaty and its principles. This essay is a useful backgrounder to many of the submissions and debate that will ensue at the select committee stage of the current Treaty Principles bill.
Chapter 4, ‘A Treaty Breach ‘Born of Hostility to the Promise Itself’: Tamariki, Whānau and te Tiriti’ by Luke Fitzmaurice-Brown, covers failures to protect whānau and tamariki under the principles of “partnership, active protection, equity, options and redress”; in particular failures of the implementation of the Oranga Tamariki Act 1989 with its inclusion of section 7AA, which referred to the principles relating to child protection for the first time. The chapter focuses on the 2021 Waitangi Tribunal report which stressed the obligation of the Crown to “protect the availability and ability of kaupapa Māori … service providers to continue to support tamariki and whānau”, despite resistance from the Crown which, currently, has introduced a bill to remove Section 7AA. 
The solution offered for a just application of Treaty principles to the inequitable plight of whānau and tamariki is rangatiratanga for kāinga which covers protection for both and recognises the importance of community. Fitzmaurice-Brown describes the success of Waitomo Papakāinga as an example. “It is largely action by Māori which is likely to make the biggest difference. In articulating the importance of Tino rangatiratanga over kāinga, the Tribunal has provided an extra tool which can be used to make this happen. It might now be up to all of us to put that tool to use.” In other words, just do it.
Chapter 5, ‘Ihumātao and te Tiriti: Striving for Just Relationships’, is compiled by six contributors and traverses the history of Ihumātao and the various Treaty issues, claims and problems of resolution. Te Tiriti “helped to guide actions and provide a framework for developing constructive, durable and more just relationships. Such relationships recognise and respect the mana, rights, interests and wellbeing of Māori”.  In their different ways, that is what all the essays in this volume are about. But the chief, almost insoluble, problem at Ihumātao is how to deal with the place of private land in any kind of settlement.
In ‘A Modern-day Muru: The Saga of the Wairarapa Moana and Pouākani Whenua’ (Chapter 6), Metiria Stanton Turei takes us through the maze of Crown negotiations with iwi over land around Lake Wairarapa. Crown betrayal, concocted compensation with other land 400km away, conflicting claims there, power station construction: this whole catastrophe makes for exhausting reading. The failures in this particular case are “driven by a complex mix of interests, including the adherence to the power of indivisible sovereignty, the concerns that full resolution means even more expensive restitution, and an acute awareness of the voting public’s appetite for such restitution”. That is, perhaps, deep non-Māori resentment at having to pay handsomely for the sins of their ancestors.
Jacobi Kohu-Morris examines ‘Mana whenua in Twenty-first Century Aotearoa New Zealand’ (Chapter 7) and lists five ways in which Māori acquired land: “(i) Take tīpuna (inheritance from ancestors); (ii) take raupatu (conquest); (iii) take tuku (gifting); (iv) take taunaha (naming during discovery and exploration), and (v) take ahikā (which refers to ‘keeping the home fires burning’).” The latter is especially pertinent in maintaining mana whenua. What I find striking about this list, as a non-Māori, is how they all apply to land acquisition the world over, with one addition: the capitalist practice of purchase.
 Kohu-Morris quotes the Waitangi Tribunal (WAI64) to define tangata whenua as “those who have ‘become one with the land through occupation over generations,’ the fact of which ‘cannot be changed for as long as the people exist and maintain an emotional connection’.” But when claims are made over particular areas of land, there may be overlapping hapū interests and tikanga comes into play again. “Determining which Māori are mana whenua in specific areas, and understanding their relationship with other Māori, poses intricate questions … Effective resolution requires that we, and our institutions, harness the expertise and wisdom of tikanga experts, and apply their knowledge through a tikanga-focused approach.” But are there enough experts?
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The Waitangi Tribunal’s definition of tangata whenua raises the elephant-in-the room question of whether non-Māori can ever become tangata whenua. A recent book about old shearing sheds throughout New Zealand includes one at Te Waimate Station in South Canterbury, and relates how Michael Studholme in 1854 came to an agreement with rangatira Te Huruhuru to begin farming the land. The shearing shed was built in 1856 and parts of it remain in the current structure, as well as his original dwelling, the “cuddy”. The station remains in the Studholme family to this day. Are they tangata whenua after 170 years of take ahikā on this land?
Chapter 8 is titled, ‘The Enduring Power of Hope: The Impact of the Treaty Settlement Process in Te Tauihu’ in which Kerensa Johnston relates the difficulties of achieving satisfactory outcomes for iwi in the Nelson-Marlborough region through Crown judicial processes. “There is usually no recognition that new post-settlement entities are start-ups, with little or no policy or working systems, infrastructure  and governance and management frameworks in place.” (As this quote indicates, this essay is prey to bureaucratic speak). There are not enough qualified people to take on all the leadership and technical roles the iwi need and it is going to take many years to achieve the place on their land that they hope for. “Together, and in spite of the challenges of past and current models, we can keep finding new ways to work together, informed by our own ways of thinking and being, and underpinned by love and a shared vision of the kind of future we hope to create.” It is the kind of vision that everyone should share and one can only wish the people of Te Tauihu the best of luck.
‘Whakarongo ki te Tangi o tō tātou Kaitiaki: the Cry of Our Harbour Custodians’ (Chapter 9), by Marama Muru-Lanning and Gerald Lanning takes a “renewed look at te Tiriti and examines the double trusteeship approach as oriented  from kāinga rangatiratanga. It shows how the Crown can be invited across the marae threshold to consider how to give effect to the double trusteeship at the local level: that is, to fulfil kāwanatanga duties in making space for, acknowledging and supporting Māori leadership within the community to protect rangatiratanga.” The writers point to the effective co-operation of iwi and local governing bodies in the kaitiakitanga of Kawhia harbour.  
The ‘Pā to Plate’ initiative in Northland is “kāinga activation of rangatiratanga” which is “essentially about supporting and serving communities of kin who in turn support growers at marae through the food or other resources that they obtain … or have bought .. and the labour or other support they offer back through reciprocal relationships”. Pā to Plate “gives meaning to the intangible notion of time. Where time is taken, kōrero, mātauranga, kotahitanga (togetherness) and company are given. The expression of cultural attributes is essentially the strengthening of whanaungatanga and aroha.” The double trusteeship of kāinga and the Crown would be negotiated at the marae level. “Practically, it might mean commitment by multiple Crown agencies to come together to support marae partners to realise their economic and cultural food-sovereignty innovation goals.” Again, there is a deal of bureaucratic speak and some of the aspirations verge on the Utopian. But the model is one that the entire country could look to for local communities under the growing impact of climate change, and the economic and security pressures it is already bringing.  
Chapter 10, ‘Beyond Treaty Principles: The Double Trusteeship of te Tiriti o Waitangi’ by Merata Kahwaru, takes the double trusteeship concept further. It is to ensure that the “Article 2 guarantee of rangatiratanga – broadly interpreted to mean trusteeship, customary authority, autonomy, self-determination, power – is protected.” This “broad” interpretation indicates how far modern (colonialist?) concepts, language and elements of presentism have shaped the debate. The chapter draws again on the Pā to Plate initiative as the “kāinga activation of rangatiratanga”. Kawharu writes that the “Tiriti interpretation from a kāinga perspective is about re-centring rangatiratanga as the central point which kāwanatanga can then be considered as its counter-balance. This does not mean the two are equal opposites. But it does mean they are frames of authority and reference for the expression of rights and duties.” She concludes, “Treaty principles will likely continue to be part of Crown ways of doing things. He pai tēnā. That is fine. But now is time to also move forward beyond principles to a new dawn that will see the double trusteeship arise.”
The final chapter 11 by Claire Charters, Fleur Te Aho and Tracy Whare, is titled ‘The United Nations Declaration on the Right of Indigenous Peoples and te Tiriti Relationships’. It considers how the Declaration (UNDRIP) affects Treaty issues. “We argue that the Declaration can be leveraged to support Māori claim-making grounded in te Tiriti. In this way the Declaration is helping to both inform and implement te Tiriti in Aotearoa and, thus, enhance Treaty relationships.” There is a detailed backgrounder to UNDRIP and also the start of a plan that would lead to the Crown “‘fulfilling its obligations under Te Tiriti o Waitangi and its corresponding aspirations in the Declaration’”. Here is the only reference in the book to the controversial He Puapua report which set out a “vision and road map to realise Māori rangatiratanga by 2040 in accordance with the Declaration”.
“The most notable leverage of the Declaration to advance Māori claim-making grounded in te Tiriti has occurred within the Waitangi Tribunal” and it has come to the fore increasingly as another pou in the case for enhanced rangatiratanga. The authors conclude, “While the outlook for both te Tiriti and the Declaration is not positive under the National-Act-New Zealand First coalition Government elected in 2023, the Declaration may yet play an enhanced role in policy development if a national action plan to implement the Declaration is eventually formalised.” It is a big if, especially when UNDRIP is not binding and derives from an extra-New Zealand source.
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Finally, Stanton Turei’s Epilogue, ‘Te Tiriti Relationships – A Critical Relationship’, provides a good summing up of the arguments put forward, and is a short-cut for anyone reluctant to immediately dive into the essays. She writes, “The theme that emerges in this book is that tikanga, rangatiratanga, mana and kāinga are at the forefront of the Māori vision of Tiriti relationships now and in the future.” The “tono” of Chapter 1 suggests that “it becomes almost impossible to have a functional and respectful relationship with the Crown if the Crown insists on the cession of Māori sovereignty as the starting position. This begs the question as to whether the narrative that Māori ceded sovereignty is so essential in the twenty-first century after 184 years of the Treaty/Tiriti legacy; it is an orthodox position for the Crown, but its repetition arguably forces iwi Māori to recommit to that narrative to have a working relationship with the Crown.”
But wait! “The courts seem willing to read te Tiriti into their decisions regardless of the Crown’s position. The courts are recognising the legitimacy of pre-Treaty Māori legal authority. Perhaps this is how the courts are shifting, in their own slow, incremental ways from the secession narrative.”
Here is the key issue underpinning the controversial Treaty Principles Bill that has now gone to select committee hearings: who holds sovereignty, over what and how? During the next six months, when there will be much sound and fury, this book will provide a sober guide to the current intellectual, political and legal thinking in te Ao Māori.
Te Tiriti o Waitangi: People, Politics and Law, edited by Metiria Stanton Turei, Nicola R. Wheen and Janine Hayward (Bridget Williams Books, $49.99) is available in stores nationwide.