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The Treaty is an enduring compact of mutual obligations between Crown and iwi

By Rev Gary Clover

The Treaty is not about race privilege or individual Maori rights. It gave Pakeha rights too:
* to emigrate to New Zealand;
* to enjoy equal citizenship with Maori;
* to govern, alongside the entire chieftainship retained by iwi and hapu chiefs;
* to acquire for the Crown voluntarily from iwi and hapu chiefs sovereignty over New Zealand.

'In the famous phrase of Justice Eddie Durie, "We must remember that if Maori are the tangata whenua, the original people, then Pakeha are the tangata Tiriti, those who belong to the land by right of the Treaty".

The Treaty's core is the constitutional and political balance created by the Maori text. Articles' One and Two share constitutional and political authority between the Crown's "kawanatanga" (governance) and iwi chiefs' "tino rangatiratanga" (entire chieftainship). This obliges the Crown, in an enduring compact, to consult, include, and involve iwi, in official decision-making on all matters of mana Maori and interest to iwi. Thus, since 1985 now Chief Justice Sian Elias has argued the Treaty grants iwi and hapu a "priority of concern" in matters of government.

The 1975 and 1985 Treaty of Waitangi acts changed everything. Together, they confirmed iwi and hapu (not individual Maori) have constitutional, political, and property "Treaty rights" the rest of us don't have. For the first time they accurately and fully included both language texts in New Zealand's statutes allowing our courts to consider the place of the Treaty in our constitutional and political life.

The Treaty is a reality of New Zealand life. It was properly ratified by both the British Crown and by iwi (at the Kohimarama hui in Auckland in 1860). And International law jurisprudence easily takes care of its difficulties.

The ‘indulgent rule’ and internal law principles allow that where different language texts are in dispute, priority is given to the indigenous text and to the party who relied upon the Treaty to their detriment.

Since 1985, many court judgements, from the High Court to the Privy Council, constitutional lawyers, and historians, have described its "practical partnership" between the Crown and iwi. Lord Cooke in his 1987 judgement declared that it is a "still valid compact" which imposes "fiduciary" duties of "mutual obligation" between the Crown and Maori tribes. British constitutional expert, Dr Paul McHugh, believes it can limit the Crown's actions in much the same way as the Magna Carta, the 1603 Anglo-Scottish Act of Union, and the Bill of Rights. To Dr David Williams, an Auckland constitutional lecturer, it is a "parity covenant". Treaty historian, Dr Claudia Orange, in her book The Treaty of Waitangi, concludes: "The explanations given at Treaty signings support the conclusion that?Maori and Pakeha would share authority".

Today the Treaty has legal significance in two ways:

* It is evidence the British Crown acquired New Zealand by voluntary "cession", not by conquest, occupation or discovery.

* It refers to Maori rights. It describes enduring iwi and hapu customary and property title to their “lands and estates, forests, fisheries”, and all their "taonga".

Individual Maori have no more rights or claims on government than Pakeha. We can all agree that government welfare, education and health funding should be on the basis of "need" and not be "race-based". But that's not what argument over Treaty policy is about.

Iwi and hapu are the Crown’s Treaty "partners" who signed in 1840 – not individual Maori. For iwi to have significant, not simply token, or even equal, representation on Crown and local government official bodies is not a “race privilege”. It is an iwi "Treaty right".

Pakeha politicians are factually, morally, legally, and politically, wrong to selectively focus only on the Treaty's Third Article. Such selective Treaty policy will very likely be challenged in our courts. And New Zealand's judges will likely insist that the Crown and iwi Treaty "partners" treat with each other honourably according to their "mutual obligations", as they did in the 1987 State-Owned Enterprises, 1988 Maori Council, 1992 fisheries, and mid-1990s broadcasting judgements.

It was Nelson GPs who determined the extent of iwi representation on Nelson's PHO. Pakeha regional councillors sought parallel iwi representation on the Environment Bay of Plenty regional council to facilitate planning and decision-making. Not pushing from Maori, or Government policy.

The Christian churches are vitally interested in seeing the Treaty is fully honoured. Anglican, Methodist and Catholic missionaries were present at the 1840 signings. The Anglican missionary, Henry Williams, translated Captain Hobson's draft into today's official Maori text. Their explanations persuaded Christian Maori chiefs like Hone Heke and Tamati Waka Nene to sign.

If the Treaty is dishonoured, so is the integrity of the Church. Our God clearly regards all agreements, especially treaties, as sacred covenants which endure for all generations, though time passes, circumstances change, and they may no longer suit our interests. The treaty signed by the Israelite general, Joshua, with the Canaanite tribe of Gideonites (Joshua, Ch 9), was a flawed covenant signed under false pretences. 400 years later, King David, despite very changed circumstances, was honour-bound to uphold this treaty in full, with awful consequences for the surviving male heirs of King Saul's line (2 Samuel, 21).

When the Treaty of Waitangi was signed the Maori population was around 100,000. Only 2,000 Pakeha settlers were here. Clearly, this situation is today much changed – often through Treaty breaches. But as an enduring compact which describes a practical partnership relationship of mutual obligation between the Crown and iwi, the Treaty has an ongoing importance for us all as the mode of defining the ongoing constitutional and political relationship between the two most significant founding partners of our New Zealand democracy into the 21st century.