from Cranmer’s Substack

New Zealand looks set to have another Prime Minister that does not have a basic grasp of the three articles of the Treaty of Waitangi.

It is simply astonishing that New Zealand’s next Prime Minister, Chris Hipkins, is unable to give even a brief explanation of the three articles of the Treaty of Waitangi. It is all the more astonishing when one considers that Hipkins, a career politician, has been a senior Minister of the Ardern government since 2017. Treaty issues have been embedded in a great number of this government’s major policy initiatives and many statutory roles created by new legislation require expertise in the principles of the Treaty. Apparently that’s not a requirement when you’re applying to be Prime Minister.

In 2019 then Prime Minister Jacinda Ardern needed to be prompted by Willie Jackson to repeat “kāwanatanga” when she was asked by a reporter what Article 1 of the Treaty says. 

Yesterday, when asked to name the three articles of the Treaty, Chris Hipkins, our presumptive Prime Minister replied, “We have kāwanatanga, tino rangatiratanga, and, actually no, I can’t remember the other, sorry.”

This lack of knowledge amongst our most senior politicians may go some way to explaining why the government has been adopting highly contentious policies based on radical interpretations of the Treaty. Because we can be sure that Nanaia Mahuta, Willie Jackson, Peeni Henare and the rest of the Māori caucus have a very good understanding of the Treaty and the various nuances and interpretations that are being deployed.

The Treaty is not a difficult document to understand. There are differences between the Maori and English translations which can excite scholars and lawyers, but regardless of these nuances it is a document that all New Zealanders should understand at a basic level.

In short, the Treaty consists of three articles:

  • kāwanatanga or governance – derived from the word for ‘governor’, kāwana
  • tino rangatiratanga or chieftainship – derived from the word for ‘chief’, rangatira
  • nga tikanga katoa or citizenship – derived from the word for ‘rights’, tikanga

There has obviously been a lot of debate and scholarship that has considered what was intended by each of these three concepts, and importantly, where sovereignty fits into the picture. That debate continues today but new interpretations of the Treaty favoured by radical academics are moving further and further away from the text of the Treaty. These new interpretations are reflected in the controversial He Puapua document and have informed this government’s view of co-governance which has proved to be so divisive within the country.

Yesterday, Hipkins admitted that “no-one knows what co-governance means” but in truth this is probably more of a comment on his own lack of understanding rather than on anyone else’s.

The public don’t need to be Treaty experts to intuitively know that what has repeatedly been proposed by this government as ‘co-governance’ goes far beyond anything set out in the Treaty.

However when it comes to the soon-to-be Prime Minister, the fact that yesterday he also admitted to forgetting what Article 3 of the Treaty said was particularly telling.

The citizenship clause has historically not been controversial. In his book, Struggle Without End, Dr Ranginui Walker noted that it was the “least contentious” of the three articles. However, it has become crucial in recent times as the concept of co-governance has been developed.

If Hipkins doesn’t know what Article 3 says, he won’t understand co-governance as it is being implemented by his Cabinet colleagues.

Sir Hugh Kawharu interpreted Article 3 as follows:

For this agreed arrangement therefore concerning the Government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England.

Modern scholars, including Ned Fletcher, in his newly published book The English Text of the Treaty of Waitangi argue that this article confers what he describes as a “special status for Māori distinct from that of other British subjects”. That’s quite an interpretation for a clause which, on its face, simply confers British citizenship upon Māori. That, however, is the current direction of travel in Treaty scholarship.

Therefore rather than citizenship, Article 3 is now interpreted to mean equity, equality and partnership, i.e. an equal partnership between two distinct groups of people.

He Puapua conceptualizes this partnership as being between two spheres: the kāwanatanga sphere of Crown governance on the one hand and the rangatiratanga sphere of Māori self-determination / sovereignty on the other. At the intersection of the two, there is a ‘joint sphere’ in which Māori and the Crown have shared interests and therefore share governance, i.e. co-governance.

He Puapua uses the diagram below to illustrate the relationship between Māori and Crown.

He Puapua describes this governance framework as follows:

These diagrams represent the conceptual basis on which we have approached our work.

The rangatiratanga sphere reflects Māori governance over people and places. The kāwanatanga sphere represents Crown governance. In line with one of the models posited by Matike Mai, we envision a key feature of a Declaration-compliant future to be a larger ‘joint sphere’, in which Māori and the Crown share governance over issues of mutual concern. This sphere is effectively the intersection of Articles 1 (kāwanatanga) and 2 (rangatiratanga), with an overlay of Article 3 (equity). The Crown’s right to kāwanatanga (Article 1) itself is informed by rights to self-determination in the Declaration. If they choose, Māori must be able to participate in Crown governance. This is reinforced by Article 3 of te Tiriti, which confirms Māori equity and equality with other citizens.

If Prime Minister Hipkins is going to accurately articulate what co-governance means to the New Zealand people he will need to have a firm understanding of how it fits within the Treaty of Waitangi. Not within the modern interpretation of the Treaty or its so-called principles but how it fits within the text of the Treaty.

For the last 30 years Treaty scholarship in New Zealand has been dominated by one school of thought which considers the Treaty to be a living document able to be reinterpreted to remain relevant today. It has been significantly influenced by legal jurisprudence developed by indigenous peoples in other countries including Australia, Bolivia, Canada and the United States.

What has been missing from the Treaty debate is the other major school of legal interpretation – textualism – which focuses on the plain meaning of the text of the document. At the moment, it is the public and a few lobby groups and commentators who have been attempting to bring the debate about Treaty issues back to the text; but there remains a paucity of politicians, judges, lawyers and academics who represent this school of thought. Without them, New Zealand’s constitutional development will undoubtedly suffer.

Original article