Some would like to the Treaty buried in a museum archive or even better, burnt forever on a bonfire (and together with Regulations). Some may not object to having their version in full view and the other in a dark dusty display in a far corner of the History section. Some treat the Treaty as a guide or manual for NZ society. There are many different views of the style and the substance of the Te Tiriti – the Treaty. Likewise, the path of public discourse is broadly divided into tracks of deliberation versus persuasion, with the former being pluralistic, inclusive, constructive, compromising, rational, and respectful and the latter being binary, exclusive, antagonistic, polarising, emotive, and contemptuous. Suffice to say, the paths will lead to different destinations.
Only two days ago, Anne Salmond wrote another excellent piece on the Treaty in which she juxtaposes different ways of thinking.
Different ways of thinking can put people at loggerheads, so they talk past each other – reasonable people who reason differently. This can create impasses that are almost intractable. Current discussions over Te Tiriti o Waitangi may be a case in point.
However, Anne Salmond’s piece doesn’t pre-empt this Post, for which I already had an advanced draft, and they sit nicely side-by-side.
While the debate regarding the Treaty continues and is heating up, I’d like to focus on two main perspectives that are often ignored in the public discourse and that appear to be confined to academic circles: the ‘Living Document’ and ‘Originalism’.
The ‘Living Document’ perspective 1 suggests that the Treaty’s interpretation should evolve over time, reflecting changing societal values and circumstances. This viewpoint allows the Treaty to remain relevant and adaptable, addressing issues unforeseen at the time of its signing in 1840. It acknowledges the dynamic nature of the relationship between Māori and the Crown and by implication, between all peoples in and of Aotearoa – New Zealand. When this view comes into focus, it is embraced wholeheartedly or rejected in a business-like manner.
A comparison can be made of the Treaty to the evolution of law and democracy.
Law is often considered a ‘living’ entity, as it is interpreted and reinterpreted by courts, and updated through amendments or new legislation to reflect societal changes. This process allows the law to remain relevant and adaptable, much like the ‘living document’ perspective of the Treaty.
Similarly, democracy has evolved over centuries to adapt to changing societal values and circumstances. The adoption of the mixed-member proportional representation (MMP) system in New Zealand in the 1990s is a prime example of this evolution. It represented a significant change to the electoral system to reflect better the diversity of views within the population.
These examples lend support to the perspective of the Treaty as a ‘living document’. They highlight the importance of adaptability and evolution in maintaining the relevance of such foundational documents and systems in a changing dynamic society. This perspective allows for the ongoing development of the relationship between Māori and the Crown, and the continual reassessment and resolution of Treaty claims.
Conversely, the ‘Originalism’ perspective 2 argues for an interpretation based on the original intent and understanding at the time the Treaty was signed. This view emphasises the historical context and the specific words used in the Treaty. However, applying originalism to the Treaty of Waitangi has its limitations due to the differences between the Māori and English texts and the manner in which the Treaty’s provisions were devised, drafted, and subsequently acceded.
The debate becomes more complex when considering the socio-economic disparities faced by Māori people. Some stakeholders argue for a multi-ethnic society without favouritism based on race or ethnicity. However, this perspective can overlook the historical and ongoing inequities faced by the Māori people. The Treaty was intended to protect Māori rights and interests, and many argue that this includes addressing socio-economic disparities and historical injustices.
The political landscape and the diametrically and ideologically (!) opposed new Government, relative to the previous one, further complicate the debate. The lack of Māori representation in the government can be a concern for those seeking to ensure that Māori rights and interests are adequately addressed. The push for a referendum on the Treaty by a coalition party reflects one perspective in the debate. However, even though a referendum is a democratic process that allows all eligible voters to have a say and that could potentially provide an opportunity for a broader public discussion about the Treaty and its implications, the actual nature of the debate is crucial for the outcome.
Both the nature of the Treaty (i.e. Living Document vs. Originalism Perspective) and the question about the interpretation of the Treaty document (i.e. English vs. Māori version) are crucial aspects that contribute to the overall understanding and application of the Treaty.
The nature of the Treaty, whether it’s viewed as a living document or through the lens of originalism, can influence how its principles are applied in contemporary society. This perspective can shape policies, legal decisions, and societal attitudes towards the Treaty.
The interpretation of the Treaty, particularly the differences between the English and Māori versions, is also a significant factor. It directly impacts on the understanding of the Treaty’s intentions and the rights and obligations of the parties involved.
In an ideal scenario, these aspects should not be mutually exclusive but should inform each other to ensure a comprehensive and respectful approach to the Treaty of Waitangi – the people of Aotearoa – New Zealand deserve no less.
What is the path forward? It’s clear that (public) opinion of the Treaty involves a range of perspectives and interests. It’s a complex issue that requires ongoing dialogue and mutual respect. In my opinion, the Treaty, much like the evolution of law and democracy, is a living entity that should adapt to the changing societal values and circumstances. It’s crucial that all stakeholders, including Māori, are genuinely engaged in these discussions. The goal should be justice and reconciliation, guided by the principles of the Treaty.
Looking at the future, let’s imagine a New Zealand where socio-economic disparities have been all but eliminated. In this future, Māori health outcomes are no longer disproportionately poor compared to the rest of the population. Māori life expectancy matches, if not exceeds, the national average. Māori children grow up with the same opportunities for education and employment as their peers, unhampered by the socio-economic constraints of their ancestors. In other words, Māori are uplifted and they’ll have the same outcomes.
In this vision, the principles of the Treaty are fully realised. Te Reo flourishes in schools, in media, and in everyday conversation, reflecting a society that values and preserves its indigenous culture. Māori people have an influential voice in the government, ensuring their rights and interests are always properly represented.
Land and other natural resources returned through Treaty settlements is managed sustainably, benefiting both the Māori iwi (tribes) and the wider community, and future generations. The relationship between Māori and the Crown is characterised by mutual respect and collaborative relationship, as originally intended by the Treaty.
Working backwards from this vision, we can identify key steps towards achieving this future:
I believe this is a future we can all look forward to, without fear and prejudice, and it provides a possible roadmap for how New Zealand can move forward. I think it’s a future worth striving for.
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