Thursday 8 February 2024

The Coming of the "Principles"

Matiu Rata: "... the most effective NZ
politician of the last half-century?"

As 1975 began, neither Treaty nor Tiriti were part of New Zealand law. By years end, the Treaty's legal status was transformed, and "it's place in the new Zealand polity and the country's history and culture were assured." [1]

This is when the "Treaty Principles" were born. "Treaty" was the English text (and was only ever a draft). "Tiriti" was in missionary Māori, and was the document that was signed. Arguably the actual treaty. Something called the "Treaty Principles" was supposed to moderate between these two allegedly irreconcilable documents, with the priesthood of the Waitangi Tribunal empowered to "interpret" the space between. Under Eddie Durie's stewardship, that space was gently but firmly prised open to reveal an ever-flowing vein of political privilege and alluring economic wealth.

It all began with a Labour Party manifesto. Historian Bain Attwood explains:

What transpired amounts to a case of unintended — and thus unforeseen — consequences.... The Labour Party, led by Norman Kirk, had been returned to power just two months earlier for only the second time in twenty-two years; [Matiu] Rata had become both the Minister of Maori Affairs and the Minister of Lands; ...

The Labour Party had been elected on the basis of a manifesto (in both English and Māori) that included a promise to examine a ‘practical means acknowledging legally what it called ‘the principles set out in the Treaty’. After introducing legislation about Waitangi Day shortly after winning office, it belatedly turned its attention to this commitment, directing its caucus committee on Māori affairs to provide a report on the matter. In undertaking this work the committee largely conceived of its task in terms of this question: whether any legislative action could be legally taken regarding the Treaty? Answering in the affirmative required it to demonstrate that the Treaty was a valid legal agreement and a binding one....

The committee was struck by [a recent academic] argument that whereas the English version had long been regarded as the authoritative version, the Māori version should have primacy because it had been widely circulated and signed by most of the 540 Māori chiefs and it was the one that was first signed (at Waitangi). ... Moreover, it held that ‘the question of versions’ was primarily important only in respect of the first part of the Treaty’s second article, and this was because Ross had noted that the English version was more specific about the kinds of Māori property the Queen had guaranteed to protect than was the Māori text.

[T]he committee was determined to demonstrate that Parliament could give some legal effect to the Treaty. Consequently, it asserted that the central issue was not whether the Treaty was in Māori or English but that it was a binding agreement that had been made by the Crown and the Māori chiefs. This was in keeping with its insistence that the Treaty could become ‘an instrument of mutuality.’... that, as far as Māori were concerned, ‘no amount of legalistic argument’ could detract from the fact that their forebears had entered into a binding agreement with the British in good faith and that the Crown had a responsibility to uphold the Treaty’s principles. Clearly, the committee regarded the Treaty in the same way that Māori and some Pākehā ... had long conceived of it — as a moral agreement rather than a legal contract — and so it emphasised the spirit it believed the Treaty symbolised rather than any strict rights it might be said to contain.
In short, the actual words of the Treaty/Tiriti became less important than the spiritual importance of this binding agreement, this "instrument of mutuality," this beginning of a "relationship" —or of something said to be "akin" to it. 

Observe here that Parliament itself never bothered to define the principles, leaving it open to the Waitangi Tribunal and later the courts to do so. And nor does the Treaty, in either language, state principles. As Gary Judd KC explains
It is an agreement recording an exchange of values, including future obligations. Parliament created the fiction that there are principles, which produced the opportunity for creativity in their formulation. The Ministry of Māori Development’s 2001 summary shows how this can be done. If one is able to search for, “underlying meanings, intention and spirit,” the scope becomes very wide, and open to adoption of subjective viewpoint.
So as the words lost importance in a legalistic sense, at this very same time a new organisation was established, a tribunal, that was empowered to fill that vacuum themselves. Their pronouncements became known as the Treaty Principles, which would encompass some of those more "mystical" interpretations of meaning. This is how it happened:
The committee ... recommended the establishment of a tribunal ‘for the purpose of maintaining, upholding, advising and hearing of any matters related to the treaty to which existing laws offer no redress’. However, once the Cabinet agreed to endorse this proposal, an unexpected question arose, and the way it was answered would, inadvertently, enable the Waitangi Tribunal to do the transformative work that it eventually undertook.... 
[But] the Secretary of the Department of Maori Affairs, J. McEwen, realised that an important question had to be addressed because the committee had recommended that both the English and Māori texts of the Treaty be considered in any legislative enactment. ‘As the two versions differ, it will be necessary to state clearly which version is to be authoritative’, McEwen pointed out to Rata. ‘It can be either the English version or the Maori version, or both, but if the latter alternative is chosen, there will have to be a specific provision which empowers somebody to decide the true meaning of the words. I would suggest that the way around the difficulty would be to make both versions authoritative and expressly empower the Tribunal to decide any issues arising from the differences in wording.’ Consequently, he drafted a clause that stated: ‘In exercising any of its functions under this section the Tribunal shall have regard to the two texts of the Treaty set out in the First Schedule to this Act and, for the purposes of this Act, shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the two texts and to decide issues raised by the differences between them.’  
In time, this clause would see the matter of the two texts become central to the Tribunal’s work and allow it to bestow a degree of authority on the Māori text that McEwen could never have imagined and which he had actually tried to prevent in his drafting. Nor did anyone in government anticipate that McEwen’s adoption of the Labour Party manifesto’s mention of ‘the principles’ of the Treaty would prove similarly vital to the work the Tribunal did.
And lo, 'the principles' were to take on a life of their own.

He might have only read comics, but there's a strong case to be made that the most effective political reformer of the last half century isn't Roger Douglas; it's Mat Rata.

* * * * 

1. Bain Attwood, A Bloody Difficult Subject: Ruth Ross, te Tiriti o Waitangi and the Making of History. 101 
2. ibid, pp 101-3
3. ibid, p. 103


Max Ritchie said...

Allegedly (and unkindly) his happiest school years were the five he spent in Standard 3. But my understanding is that the first inclusion of Principles was due to Koro Wetere.

Peter Cresswell said...

I'm told Mat Rata could always enjoy a good joke.

But I hadn't heard that about Wetere. His influence was more in the next Labour Govt. He would have been around when that 1972 Labour Party manifesto was written, but I'd though it was Tirikatene-Sullivan who was most responsible for the reference there. Happy to hear more though ...