April 2015 Māori Law Review

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


Overview

Are We There Yet? The Future of the Treaty of Waitangi
Gareth Morgan and Susan Guthrie
Phantom House Books 2015 (ISBN0987666681)
Reviewed by Max Harris, Examination Fellow, All Souls College, Oxford.

Discussion

Gareth Morgan and Susan Guthrie’s book, Are We There Yet? The Future of the Treaty of Waitangi, has already sparked significant debate since its release in January 2015. A series of op-eds published by Morgan in the New Zealand Herald, and based on the book, led to two strong articles in reply by Māori lawyer Joshua Hitchcock. Morgan’s speaking engagements at Ratana on 22 January and at Orewa on 4 February (the latter alongside Dr Don Brash) also attracted significant media attention.
But amidst all the heat and excitement that has surrounded Morgan, there have been few careful efforts to examine the arguments he and co-author Susan Guthrie make in their book. This review attempts that task. Part One of this review reconstructs three major Treaty-related arguments in the book, and highlights missteps in each of these arguments. Part Two of this review tackles head on the claim that the Treaty of Waitangi should not be the basis for Aotearoa New Zealand’s constitutional development. In a substantive digression away from the book, I start to sketch how the Treaty could meaningfully undergird the future of Māori–Pākehā relations while also providing a foundation for values that could apply to other groups and various policy contexts. Part Three analyses the style and approach of the book. I note that Are We There Yet? is admirable in its accessibility, although it is characterised by some errors. I then sum up the contribution that Morgan and Guthrie have made to legal and constitutional debate in Aotearoa New Zealand.
Not everything in this review, and not everything in the book, is about law, narrowly construed. What follows takes a broad view of law, perhaps influenced by tikanga and kaupapa Māori – which includes values, relationships, and cultural factors.
*
Morgan and Guthrie’s book is somewhat strangely structured for a book purporting to be about the future of the Treaty of Waitangi. The Treaty is hardly mentioned in the first six chapters (out of twelve in total), and there are long diversions on subjects such as devolution in education. One possible explanation is that this was originally designed as a book about race relations, but was reframed as a Treaty book, in part because 2015 is the 175th anniversary of the signing of the Treaty.
The points made about the Treaty, positive and negative, are not always succinctly stated in the book – instead Morgan and Guthrie tend to circle around certain Treaty-related arguments, or to make significant passing comments. (Their arguments about political philosophy, ethnicity, and social policy generally are actually more clearly laid out.) This makes it necessary to do some reconstruction to understand the claims that Morgan and Guthrie make about the Treaty of Waitangi. The reconstruction reveals three key theses: about the nature of the Treaty relationship, the tension between Articles 2 and 3 of the Treaty, and how the Treaty has been used and interpreted since 1840.

The Treaty relationship

The first major argument about the Treaty made by Morgan and Guthrie is that it should be understood as a compact between “Māori and other New Zealanders” (163), rather than between the Crown and Māori. This is the “only logical conclusion” if the Treaty is to be “relevant today” (163). Morgan and Guthrie’s reasoning for this position is a little contorted. They say that “the Treaty relationship is between society” and Māori, because Parliament represents society. They then state that since “one can’t be in a relationship with oneself”, the relationship must be “between Māori and non-Māori” (163–164).
There are lots of subtle leaps that Morgan and Guthrie make to reach this conclusion. They are assuming that the Crown, as the Treaty partner, means Parliament; they are then also assuming that Parliament can be equated to society. While the first move (Crown = the Crown in Parliament, comprising the House of Representatives and the Sovereign) might be defensible or a part of an explanation in constitutional terms, the second (Parliament = society) requires more argument than Morgan and Guthrie provide. And it is not entirely clear why society as a whole cannot have a particular relationship, or specific obligations, to a group that is part of society. It is hard to know why Morgan and Guthrie are so averse to the Treaty being seen as a compact between the Crown (as the Executive) and hapū and iwi, or the Crown and Māori. This is the interpretation most obvious from looking at the text of the Treaty, and it fits with understandings of how constitutional documents create relationships between the government and particular groups. Perhaps it is because understanding the Treaty in this orthodox way, as placing obligations on the Crown as the executive arm of the State, gives the Treaty quasi-constitutional force, a position Morgan and Guthrie want to reject. Whatever the reason, what is clear is that Morgan and Guthrie don’t set out the nature of the Treaty relationship convincingly. They 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 – a problem that crops up at different points in their book. (It is surprising, and telling, that the full text of the Treaty does not appear in the book, though it is sometimes quoted in part.)

A conflict between Articles 2 and 3 of the Treaty?

The second Treaty-related argument that Morgan and Guthrie return to at different points in the book, and that Morgan has made forthrightly in his New Zealand Herald columns, is that there is an inherent tension between Articles 2 and 3 of the Treaty. Morgan and Guthrie say that “Article 3 grants equal citizenship to Māori and non-Māori alike”, an assurance of “political equality” (178). They then note that the notion of having equal opportunities to influence decisions “is clearly inconsistent with opportunities reserved only for Māori groups” (178). They later express this conflict as one between “group rights … and individual rights” (179). Earlier in the book, they also offer some theoretical reasons for concern about group-differentiated rights: Morgan and Guthrie claim that power-sharing “risks causing” division and may incentivise difference (128). It is these claims that Morgan and Guthrie seem to lean on when arguing that unique political rights for Māori undercut political equality.
The authors are not clear about their preferred solution to this alleged conflict. They believe that Article 2’s explicit guarantees of “natural resources and Māori cultural treasures” should be upheld. However, other Māori claims based on Article 2 “should be removed from the Waitangi Tribunal and heard elsewhere”, possibly in citizens’ assemblies (185), where they can be debated openly. Morgan and Guthrie seem to be generally opposed to unique political rights, but interestingly in their final chapter, they suggest that as a “risk mitigation plan”, “active measures to build social connections between” Māori and others might be a way to “compensate for the incentive to emphasise” difference (329).
There are numerous problems with this argument. First, the general focus on the Treaty being contradictory and inconsistent in the book (Morgan and Guthrie talk of “the opaqueness and uncertainty around the meaning of the Treaty” at 181) reflects a long-running narrative in writing about the Treaty. But it ignores more recent work (including Ned Fletcher’s landmark, recently-published doctoral thesis, “A Praiseworthy Device for Amusing and Pacifying Savages: What the Framers Meant by the English Text of the Treaty of Waitangi”) which suggests that it is possible to synthesise and unify the various articles of the Treaty, and the Māori and English texts. It is not easy to summarise this recent work here, but in essence a modern view of the Treaty is emerging that the Treaty as a whole can be seen in a coherent way as providing qualified authority to the Crown, conditional on the assurance of rangatiratanga for Māori. It is disappointing that Morgan and Guthrie do not engage with this perspective.
Secondly, more importantly, Morgan and Guthrie are quick to conclude that Article 2 and Article 3 are in conflict. In reaching this conclusion, they appear to subscribe to a very cramped view of what “political equality” is under Article 3. (There is little focus on the text of Article 3, which assures Māori protection, and says that they will have the same rights and duties of citizenship as individuals in England.) 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, which may have required them to revise their opinion that Articles 2 and 3 are necessarily inconsistent.
Thirdly, Morgan and Guthrie’s view that the Treaty only entitles Māori to authority over natural resources and cultural treasures, and not other items, is odd. There is some ambiguity over the scope of what they mean by “natural resources and cultural treasures”: does this include historically-owned land? This ambiguity aside, Morgan and Guthrie try to offer a logical or conceptual argument for their distinction: they say that when it comes to natural resources and taonga, the relationship “is not political … but private” (224) – and the negotiations “are more like discussions between joint owners”. But this misconstrues the Treaty, at best, and at worst simply ignores the Māori version of the Treaty. The Māori version of the Treaty speaks, after all, about “te tino rangatiratanga”, which extends beyond private property and mere ownership interests. To reduce Māori Treaty rights to certain ownership entitlements is therefore to read down the Treaty. At one point, Morgan and Guthrie commend a Richard Hill quotation that talks of how “the endemic Crown refusal to recognise any meaningful role for rangatiratanga in the body politic is a keynote lesson that has not yet been learnt” (240). But Morgan and Guthrie are themselves failing to learn this lesson by refusing to recognise a meaningful role for rangatiratanga.
Fourthly, Morgan and Guthrie provide no firm evidence that power-sharing arrangements actually undermine social cohesion. The evidence they provide in chapter 5, which is not New Zealand-specific, only points to the risks of division, but these risks are then given significant weight by Morgan and Guthrie in later argument. It is equally plausible – and Will Kymlicka’s work in Multicultural Citizenship bears this out – that power-sharing arrangements or group-differentiated rights might improve, rather than undermine, social cohesion by expressly including groups such as Māori in a polity that has historically excluded them.
Fifthly and finally, even if it is accepted that there is a conflict between Articles 2 and 3, Morgan and Guthrie imply that equality under Article 3 should trump any Māori claim to unique political and other rights. But they need to provide further argument for that position: there is nothing in the Treaty to indicate that Article 3 is superior to Article 2 even if a conflict were established.

The Tribunal, the Treaty, and lawyers

The third major Treaty-related claim marshalled by Morgan and Guthrie is that the way the Treaty is being used and interpreted by the Waitangi Tribunal and others is misguided. The authors note that although the Treaty is “a political document”, lawyers have played a major role in interpreting the Treaty (165). And non-Māori have been neglected in the interpretation of the Treaty, say Morgan and Guthrie. The Tribunal has also misstepped, according to the authors, in articulating the Treaty principle of a right to development, which is characterised as something “close to … an automatic right to business assistance for Māori enterprises” (210). To address these problems, Morgan and Guthrie propose limiting the Tribunal’s mandate so that it may investigate only Treaty grievances relating to natural resources or cultural treasures. They call for an extension of the Tribunal’s powers so that it may hear from non-Māori. Further, they argue that the Tribunal needs to “lift the quality of its reporting to the public” and be more accessible in the language it uses (332).
Here Morgan and Guthrie may be on slightly firmer ground – but again they simplify Treaty matters. It is hardly accurate to call the Treaty purely “a political document”, when, apart from its constitutional status, the Treaty does influence statutory interpretation, is regularly invoked in case law, and has a strong legal effect through its principles. Moreover, Morgan and Guthrie’s complaint that non-Māori are excluded from the Tribunal process might not be accurate in terms of the Tribunal’s ability to hear from third parties and is only problematic if one accepts the authors' earlier contention that the Treaty is a partnership between Māori and other members of society, as opposed to a compact between Māori and the Crown. (It is worth noting that the Wai 262 inquiry into mātauranga Māori (Māori knowledge) in respect of indigenous flora and fauna involved a week of hearing time allocated to third parties, including many non-claimants.) Once this view of the Treaty is punctured, as has been done above, Morgan and Guthrie’s objection also falls away. Morgan and Guthrie may be right that the Tribunal could benefit from condensing its reports. But the Tribunal has attempted to improve accessibility: the Wai 262 report Ko Aotearoa Tēnei contained a summary volume with a subsidised price, for example. Morgan and Guthrie also overlook the relevance of the United Nations Declaration on the Rights of Indigenous Peoples when discussing the development principle in this chapter. They mention the Declaration when examining consultation later in the book (but unfortunately refer to the Declaration there as the “Declaration of [sic] the Rights of Indigenous People [sic]”). In general, Are We There Yet?’s analysis of the use of the Treaty has some merit in providing an overview of historical flashpoints and conceptual issues. But, as with other aspects of the book, there is a lack of fine-grained investigation of how the Treaty or the Tribunal actually operate, and Morgan and Guthrie base their arguments on a very particular (and peculiar) view of the Treaty.
*
The other Treaty-related line of reasoning in Morgan and Guthrie’s book that deserves separate analysis is the view that the Treaty is an undesirable framework for future political and constitutional debate. Morgan and Guthrie acknowledge that the Treaty is a significant document. But they say that the contradiction between Articles 2 and 3 makes the Treaty an inauspicious basis for constitutional development. They also claim that issues of inequality, poverty, and race relations require broader conversations. The Treaty cannot build upon “a common interest”, in the same way that “pan-ethnic class-based activism” does, according to Morgan and Guthrie (188).

How the Treaty seeds constitutional values for modern-day Aotearoa New Zealand

I have already given a partial answer to this concern above, in explaining that the contradiction between Articles 2 and 3 is more apparent than real. However, the best way to respond to Morgan and Guthrie’s assertion that the Treaty would not be a useful framework for political debate is to begin to show how the Treaty might be used – as a guide to race relations and as a way to seed further constitutional values. I therefore want to sketch out here how the Treaty might be understood in that manner. This is an ambitious project, and one that cannot be completed in this review alone. But I want to at least start and spark the debate on the types of values that might be drawn out of the Treaty, and I hope that this debate might be continued elsewhere. The enterprise prompts us to pay careful attention to the text of the Treaty, something that is not often done. (For this purpose, I have drawn on the modern English translation of the Māori text of the Treaty, rendered by Sir Hugh Kawharu and relied on previously by the Court of Appeal and Waitangi Tribunal, available online here: http://www.nzhistory.net.nz/files/documents/treaty-kawharau-footnotes.pdf.)
The preamble, main articles, and closing text of the Treaty offer a meaningful set of navigating lights for Māori–government relations. Article One ensures Crown governance, which could be expressed as sovereignty (if it is accepted that sovereignty need not be indivisible and can be qualified). Article Two ensures ongoing powers of chieftainship or tino rangatiranga for Māori, through tribal and other bodies, which guarantees self-determination as well as ownership of key resources. (The strength of Article Two is often overlooked: even the watered-down English version secures for Māori the “full exclusive and undisturbed” possession of resources.) Article Three then underscores the need for equality between Māori and non-Māori. The preamble reminds us that race relations must occur within a framework of law; the further text that follows Article Three indicates that the spirit of the Treaty is significant, too, and that a generous, purposive approach to the Treaty’s protections ought to be applied. All this makes clear that the Treaty can be an important constitutional document for Māori–Crown relations.
But I want to go beyond this and suggest that the Treaty offers a way of thinking about constitutional values more broadly, for all individuals and groups in Aotearoa New Zealand. Whilst the Treaty was written for specific parties, the ethos underpinning the Treaty provides a promising way of thinking about public policy and law, not just for the Treaty partners. This reading of the Treaty gives the document ongoing mana or esteemed status in the twenty-first century, and helps to resolve numerous constitutional puzzles, such as the tension between biculturalism and multiculturalism.
The preamble contains three concepts that are of importance for Aotearoa New Zealand in 2015. It speaks of “Peace and Good Order”, “just Rights and Property” (this only in the English version), and the need to avoid lawlessness. These can be converted into four values: peace and order, human rights, respect for property, and the rule of law. Such values were important at the time of the founding of this country, but remain significant today. How exactly they might be interpreted is a matter partly for debate.
Article One can be said to articulate a principle of good governance: the Crown was entrusted with governance powers on the assumption that they would use them wisely and for the benefit of all.
Article Two is directed towards self-determination, a value that has particular meaning for Māori, but which could be interpreted as an important priority for all individuals and groups in Aotearoa New Zealand.
Article Three is concerned with equality, a value that is not only relevant in the Māori–Crown relationship.
Finally, the closing text following Article Three embodies respect for deliberation and agreement as values: it records the fact that the Treaty has been considered and reflected upon, and that promises have been exchanged by the parties. It highlights, arguably, the ongoing utility of deliberation and agreement in the New Zealand polity.
Taken together, then, the Treaty could be viewed as a wellspring of at least nine constitutional values:
  • Peace and order;
  • Human rights;
  • Respect for property;
  • The rule of law;
  • Good governance;
  • Self-determination;
  • Equality;
  • Deliberation; and
  • Agreement.
There are of course some who might say that there are additional important constitutional values not listed above. Others might contend that what the Treaty says about the Māori–Crown relationship is irrelevant to broader relationships in New Zealand. However, the values listed above represent values of general appeal and broad application, and can be traced directly back to the Treaty. They highlight that the Treaty can be protective of both biculturalism and multiculturalism. This exercise, then, whilst cursory, undermines Morgan and Guthrie’s suggestion that the Treaty is an inappropriate framework for constitutional development. Undoubtedly further analysis is necessary, and I welcome corrections to the list above or alternative suggestions. But I have hoped to show that at least it is possible that the Treaty could be a vehicle for values underpinning New Zealand’s constitutional future.
*
I have said very little thus far about the parts of the book not concerned with the Treaty, partly because this review has aimed to concentrate on the Treaty and partly because the book claims to be about the Treaty. However, it is worth noting that the book does offer a useful overview of some of the key accounts in political philosophy of the role of the State. Whilst Morgan and Guthrie do not fully justify why they have chosen the theorists they examine, they provide accessible summaries of the work of Amartya Sen and Robert Putnam in chapter 1 (although Morgan and Guthrie suggest that Sen and Putnam are opposed to group rights, when according to my reading of these authors, they never make this argument directly). Morgan and Guthrie also outline modern debates about ethnicity in chapter 2 (drawing especially on the work of Will Kymlicka and Paul Spoonley), applying these to New Zealand in chapter 4. And Morgan and Guthrie tackle in chapter 3 the very important question of whether public services should be culturally tailored – although their answers are somewhat inconclusive. The authors’ attempt to engage with literature about minority rights and power-sharing in chapter 5 is admirable, although (as I have already noted) their evidence is limited and they arguably attribute too much significance to their somewhat narrow literature review. Then chapters 10 and 11 offer interesting reflections on wellbeing and inequality in New Zealand, and on education and devolution. However, these passages feel a little out of place in a book supposedly about the Treaty, and it is notable that Morgan and Guthrie focus very little on historical disadvantage faced by Māori, an omission that allows them to make the specious claim that Māori suffer disadvantage that is comparable to other social groups (a claim undermined by Morgan and Guthrie’s own evidence, including the graph on page 290 which shows that there were significantly more Māori not in work, education, or training as of September 2011 compared to Pasifika and Asian New Zealanders).
The style and approach of the book are generally to be commended. These are nuanced, delicate issues, and for the most part Morgan and Guthrie convey sophisticated ideas in accessible language. There are occasional basic errors and the index is a little incomplete. All in all, however, Morgan and Guthrie do well to translate legal and policy documents into readable prose. They also deal deftly with evidence, and share some useful statistics, including the fact that 59% of all New Zealanders asked in a 2008 survey thought that the Treaty of Waitangi was important.
What, then, can we say about the book in the final analysis? We should not be too quick to praise every contribution to Treaty debates for ‘generating discussion’: after all, Don Brash’s Orewa speech generated discussion – and discussion that proceeds on inaccurate premises does more harm than good. But Morgan and Guthrie’s book – despite some inaccuracies, for example in its account of the nature of the Treaty relationship – makes a good faith attempt to engage with Treaty and Māori issues, is mostly accurate, and is likely to kick-start debate in a productive manner, for example on the issue of how the Treaty might be a vehicle for constitutional values, an issue I have begun to examine in the preceding analysis. We can only now encourage more voices to enter the debate, including a greater number of Māori voices, as we move beyond historical Treaty settlements and into an era where the Treaty may well assume increasing constitutional significance.

Note

Gareth Morgan and Susan Guthrie wrote an article in response to this review. In that article they explain why they contend that New Zealand needs to move beyond a legalistic approach to applying the Treaty of Waitangi. Read the article: Moving beyond a legalistic approach to applying the Treaty of Waitangi in contemporary New Zealand (2015) April Māori LR.
Max Harris 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 (2015) April Māori LR.