The Evolving role of the Treaty in International Relations

Fellow Kahungunu kinsman, Moana Jackson has the unique ability to raise a question which generates hours of debate. In the year 2000, in his paper, Where does Sovereignty lie, he asked, and I quote:

How can this country establish constitutional frameworks that recognise the equally legitimate rights of Maori and Crown to exercise sovereignty?

It is a question which has never been more pertinent, than as we look back in amazement at some of the actions taken against tangata whenua in these last few years.

I am thinking of the activities of a Government that:

· Enacts legislation to extinguish Maori customary rights to the foreshore and seabed;

· Attempted to remove the Treaty from the school curriculum and initially supported NZ First’s proposal to delete the Treaty from legislation;

· Supports government agencies in writing powhiri guidelines which redefine our tikanga into a departmental context;

· Sits by while the state broadcaster relegates Maori programming further to the margins;

· Argues that the exclusion of some 230,000 of New Zealand's poorest children, from the Working for Families package is “justifiable discrimination”;

· Is one of only four countries to vote against the United Nation's Declaration on the Rights of Indigenous Peoples, a Declaration that has taken over twenty four years of international advocacy to finalise.

The Labour minority government – like so many governments before it – has been happy to grant slight concessions to the indigenous agenda while behind closed doors, the demands for constitutional recognition, for social and economic development, for land and Treaty restoration are wilfully ignored.

And so as I come to the topic of the evolving role of Te Tiriti o Waitangi in Aotearoa/New Zealand’s international relations, I am ever conscious of our recent history – including of course the very recent history of the last ten days – and how that has impacted on tangata whenua, the first nations people of Aotearoa.

The very premise of where Te Tiriti o Waitangi fits within the international scene, while important given its capacity to bolster the Treaty's status here at home, seems a secondary consideration when there is so much to do ensure there is an acceptable recognition of, and status given to, the Treaty domestically.

If there is one word to describe the application of treaties in an international setting it would be ‘honour’. The concept of treaties and agreements between indigenous peoples and others in settler states have been defined around the idea of recognition and restitution.

The history of treaty making spans the whole gamut from notions of “civilising interventions” emerging out of Imperial expansion through to recognition of indigenous peoples as entities with sovereign status. The call for existing aboriginal and Treaty rights to be affirmed is summarised best in the activist catch-cry, ‘Honour the Treaty’.

Rick J Ponting, in his book, First Nations in Canada, describes what we would understand as central to Te Tiriti o Waitangi – the quest for tino rangatiratanga – self-determination. He says,

“… self determination in purely political terms is the right of an aboriginal nation to choose how to be governed. Self-government in contrast, ‘is one natural outcome of the exercise of the right of self-determination and refers to the right of peoples to exercise political autonomy.

Self determination refers to the collective power of choice; self-government is one possible result of that choice”.

Rangatiratanga, therefore, is demonstrated in autonomy that enables individuals or collectives – the tribal nations of Aotearoa - to shape their own economic, social, cultural and political destiny.

But as our history reveals, the interpretation of rangatiratanga – self-determination; has been fraught with conflict.

Nowhere was the tension in the varying interpretations of the Treaty more evident than in May 2004, with the Foreshore and Seabed Act and the associated hikoi to Parliament of thousands of concerned New Zealanders.

The political conundrum that Jane Clifton described in terms of the question, ‘who owns seabeds by the foreshore’, has set in action a period of resistance and resilience which will not simply simmer out over a matter of time.

The opportunity to protect our customary rights, to preserve our ancestral connections and beliefs, re-generated in Maori the fight to see Te Tiriti o Waitangi have meaning for all New Zealanders.

We know too, that for tangata tiriti, those New Zealanders who come to this land via the Treaty relationship, the principled framework offered by the Treaty sets in progress a dialogue which should respect the authority, the resources, the world views of both partners to the Treaty.

If we are truly committed to the principles of reciprocity, partnership, protection, autonomy and participation, it will require the reconciliation of kawanatanga and rangatiratanga.

But here is the challenge between Article two and Article three; the dynamics of kawanatanga and rangatiratanga.

Contrary to some political opinion, it is indeed possible to be both self-determining (as is the ideal in Article two), and also retain the Article three citizenship rights to participate in the wider political, economic, social and cultural life. Rangatiratanga, despite what these critics may like to make out, does not require the suppression of the rights of other citizens in this land.

To suggest that Article two rights automatically infringe on the rights of all other citizens of the state, is the fundamental misconception that has been promoted by mischievous politicians.

It has been promoted in targeted attacks on ‘race based funding’; seen in talk of ‘division’ and ‘separatism’; played out in the parliamentary debating chamber with allegations of special privilege. What is interesting of course is that it is never Maori who raise the spectre of division and separatism.

The Treaty is not only about citizenship; it also affirms the rights of indigeneity.

Indigeneity, as I understand it, recognises the political and social momentum associated with ancestral occupation of lands. In my case, for instance, it is the right and opportunity to live as Kahungunu, as tribal people.

A 2004 article by Dominic O’Sullivan, Equality, not uniformity, is the goal, suggests that the rights of indigeneity are largely irrelevant to non-Maori because they exist in a definite Maori cultural context.

I am really interested in this point, because I know of other research, which suggests that non-Maori are very interested in learning more about the Treaty – and learning more about the Treaty is absolutely tied up with knowing about tino rangatiratanga, about self-determination, the spirit and intent of sovereignty.

The spirit of sovereignty is demonstrated in our right to our language and culture. We are defined by the unity of our identity as tangata whenua while at the same time being proud of the diversity of our distinctiveness as tribal nations.

We who have had our territories taken, are vulnerable to this day to unwanted mining and seabed excavation; who have seen our population decimated by disease, by poverty, by hangings, by execution; we who have survived the onslaught of military attack, of racism, of poverty, remain committed to our survival, our empowerment, our rangatiratanga.

Tangata whenua, as the original habitants of specific territories and lands prior to colonisation, are committed to the survival, self-sufficiency, empowerment and decolonisation of our people within our own rohe.

By this I mean the linguistic, cultural and organisational sovereignty of the tribal nations within their own tribal region, will be distinct and unique from other societies living in those lands.

Our contention as the independent Maori voice of Parliament is that it is time for governments to actually look to its indigenous people, to give voice to indigenous peoples in discussions on matters of national and international interest - such as state reforms, free trade agreements, as well the ongoing tensions associated with foreign investment and sales of state assets to international companies.

We believe that the Crown’s fundamental obligations to tangata whenua as guaranteed in Te Tiriti o Waitangi must be honoured by tangata whenua being consulted and involved in such developments as the Multilateral Investment Guarantee Agency; or before that the Multilateral Agreement on Investment.



Tangata whenua have long wrestled with the notion of foreign investment agreements which would remove nearly all restrictions on foreign investment. Any such agreement must only be entered into with the consent of both parties to the Treaty.

This is a key point - any international agreement ought to have the consent of both parties to the Treaty.

Fortunately, some ten years ago in 1997, the Law Commission produced guidelines which would help us around the vexed issues related to the role of Te Tiriti o Waitangi in international relations.

The Treaty Making Process: Reform and the Role of Parliament recommends that a Treaty impact statement should be prepared for all international treaties and agreements to which New Zealand proposes to become a party.

It states further that the impact statement should set out any consultation undertaken with Mäori, and whether the Treaty will have any effect upon rights provided by the Treaty of Waitangi.

It seems so easy – and yet as we know – it has largely slipped through the radar of responsible government in this country. In the very few instances in which it has been undertaken, the statement is that there are no Treaty impacts, and this is in relation to free trade agreements!

Just two months ago, on 15 August 2007, the United Nations Committee on the Elimination of Racial Discrimination released a report on New Zealand which condemned actions which, and I quote, “tend to diminish the importance and relevance of the Treaty and to create a context unfavourable to the rights of Maori”.

As a consequence, the United Nations committee recommended, and I state from that same report:

“The Committee encourages the State party to continue the public discussion over the status of the Treaty of Waitangi, with a view to its possible entrenchment as a constitutional norm.

The State party should ensure that such debate is conducted on the basis of a full presentation of all aspects of the matter, bearing in mind the importance of enhancing Crown-Maori relationship at all levels and the enjoyment by indigenous peoples of their rights”.

It is to our shame as a nation, that we have to be told by our international counterparts, that we are not honouring our own constitutional foundation to Aotearoa, Te Tiriti o Waitangi.

But even worse, another organisation, the International Indian Treaty Council, has not only identified our government's deficiencies in recognising and valuing the first nations peoples of this land, but they have also been so outraged at the arrests, detentions and police raids on Maori, that they have made an urgent appeal to agencies of the United Nations to intervene.

The International Indian Treaty Council has therefore appealed to four distinctive branches of the United Nations, namely:

· The Special Rapporteur on the promotion and protection of the right to freedom of expression;

1 the Special Rapporteur on the human rights and fundamental freedoms of indigenous peoples;

2 the Special Representative for the Secretary General on Human Rights Defenders and

3 the Working Group on arbitrary detentions.

The Council has petitioned the UN to look with urgency, at the case being brought to bear against Maori under the spectre of the Terrorism Suppression legislation.

No doubt this international indigenous support will be debated in greater length on 28th November in Whakatane, when the United League of Indigenous Nations Treaty will be ratified by those hapu and iwi who will sign up to a commitment to international political and economic alliances amongst indigenous nations.

There is one final irony about the current New Zealand position in relation to international human rights – that is the fact that our government has the audacity to presume they are in the running to be considered for candidacy to the United Nations Human Rights Council.

Just two days ago I asked a question in the House, based on information from the Montreal Maori Solidarity Committee who informed me that, and I quote:

“We strongly oppose New Zealand’s bid for a place on the UN Human Rights Council for its clear suppression of the legitimate rights to dissent, and for the ongoing violent repression of Māori people”.

It is that old saying – Justice must be seen to be done.

When this Government starts to operate in a way which honours treaty rights, which recognises the indigenous people as the first nations people of this land, then perhaps their officials can start to consider their appropriateness to pose as the defender of human rights on the international scene.

We must not abandon hope.

For just as thousands marched on the hikoi against the Foreshore and Seabed Act, just as the submissions poured into the select committee opposing the bill to delete treaty principles from legislation, I am confident that there is a groundswell of movement which will rise, like the tide, against a government which oppresses and suppresses independent political thought.

And we, in the Maori Party will never resile from our responsibility to recognise indigenous peoples and indigenous rights; to promote models of self-determination; to value the restoration of land, language, identity and political authority.