SO LET'S FISK WHAT one of the Te Pati Māori (TPM) protest leaders said this morning, about why they've been out there trying to block traffic, because I think it's helpful to understand the protestors' objections to the new government's policies. And particularly revealing about a key difference on Te Tiriti.
Tureiti Moxon runs primary health provider Te Kōhao Health in Hamilton which is taxpayer-funded by Whānau Ora. She is against any rearrangement of Whānau Ora. She was also on the establishment board of the Māori Health Authority (Te Aka Whai Ora). Unsurprisingly, she is also against the new government's plan to bring Te Aka Whai Ora back into the mainstream health system. Before joining Te Kōhao Health, she worked for several years as a lawyer, working on Treaty claims. He has stood several times for Te Pāti Māori, and been their electoral chair for the Tainui electorate.
She is articulate, and seems representative both of those who've risen in protest against the policies of this government -- and those who've benefited from those of past governments. She told Corin Dann on Morning Report that the new government's policies are "anti-Māori" -- a "sweeping suite of policies" that are just, she says, "archaic."
THE "SUITE," SUMMARISED BY by interviewer Corin Dann, is what she claims to be an attack on Te Tiriti, on the Maori language, on the Maori health authority, and on a "smokefree" New Zealand. [her points are in italics]:
"[The new government] has been given sovereignty ... but what it doesn't have is the support of the people to whom a lot of those policies are aimed at."
Since her claim in about numbers: The number voting for TPM was in the thousands. The number out there this morning was in the hundreds. The number voting for the new governing parties is in the hundreds of thousands. But since Luxon has said he's going to govern for everyone, she has that point.
"In many ways we just feeling as if we're being attacked, every which way" she said, attacking the new government, "simply because a lot of their policies are ... anti-Māori policies."
Are they? Let's hear her argument.
"The worst of it is [the suite of policies is] taking us back a hundred years. It is taking us back to colonisation."
Really? Big claim. Still no argument.
"What we're saying is: No, we've ... worked too hard on our race relations [not just in] our organisations but in this country ... to bring about a better partnership in terms of Te Tiriti with the government and all those partners that we now have good relationships with."
The principle of partnership here is her key point. Which doesn't go back to colonisation, but only to Geoffrey Palmer and Richard Prebble -- and to Lord Cooke of Thorndon, whose Court of Appeal found, when asked by Palmer and Prebble to define (without offering any guidance from Parliament, as you'd expect from decenty-written law) what the principles of the Treaty might be, that it is "akin to a partnership." And which is, in fairness, what the new government says it will question via new legislation taken to a first reading in Parliament.
"They've decided to take back the power and control unto themselves" she says of that fairly tepid promise. "For a very long time ... iwi have been working very closely to bring about a partnership that actually has meaning, and is not just on paper.
But it's not even on paper. Cooke's Court only found something "akin" to a partnership, inviting further definition from lawmakers.
In the meantime, "akin" is not "is."
Nonetheless, there's been significant momentum in the 36 years since to ignore that word "akin' and to cement in this idea of a full partnership -- as if that principle had been there since 1840, or had been enunciated in 1987 by the Court of Appeal.
And we might also ask: a partnership between whom exactly? That is to say, between the Crown (which Moxon acknowledges as one of the parties) and which particular individuals? Because, notice that she seems to be talking about a collective effort here, as if Māori as a collective should be co-governors, with some special class of rangatira acting as power-brokers on their behalf. This is important in understanding her objections.
"... [that] includes Maori in decision making ..."
Individual Maori make decisions every day about their own work and wellbeing. They're perfectly capable people. Why do they need the patronisation of a government? There was nothing in Te Tiriti requiring that. Nothing requiring they be in government -- even though many are, on their own merits.
"... and in co-governance ..."
Why? Te Tiriti never called for co-governance (see below). And the previous government's covert push to implement it was only partially successful. (Which suggests her main objection is to the break in momentum that she thinks this government represents.)
"... and with a swipe of the pen they decide, 'Nah, we're not having that any more'...."
And yet that's what governments (in whom she seems to put her faith) do all the time. And she does agree that this one has sovereignty. So we're back to her simply saying "I don't support it."
"... without even thinking about the consequences of what that actually means in terms of Te Tiriti O Waitangi, which has the guarantee of tino rangatiratanga; and there's no guarantee of tino rangatiratanga in the policies [inaudible]."
She's implying here that tino rangatiratanga must equal respect for Te Tiriti and the Maori language, for the existence of a Maori health authority and "smokefree" legislation, and support for widespread co-governance. Big claims! Respect for the first two can be agreed with -- even as we can debate what form that takes. The next two have no basis therefrom -- and in any case the majority of the "smokefree" legislation remains in place, unfortunately.
Her last point, really, is the point in question here, and the one from which everything else would flow, if the last half-century's momentum (which she celebrates) were to continue.
"The Waitangi Tribunal has been around for about fifty years, and they have been the ones who have been the experts in Te Tiriti ..."
Not exactly. The Tribunal is only asked to hear and to advise the government of the day on alleged breaches of the Treaty, its hearings being adversarial (rather than any kind of partnership, or investigation), its historians being funded largely to seek out and highlight these alleged breaches, their reports on these breaches becoming (by their sheer volume) becoming the locus of modern-day historical research. And so if they as historians and it as an institution have become experts in anything, it is primarily as experts in the Treaty's alleged misapplications, rather than in its ideal.
There is a difference,
Note too that the Tribunal's findings are not and never have been binding on the government of the day. Depite all its apparent lustre, it is an advisory body only.
"... and in the principles ..."
No, the Tribunal is not even empowered to rule on the so-called principles -- which have developed in other courts as they have struggled to make sense of what this phrase means that inserted so unthinkingly into most law since. The Tribunal is empowered only to hear and advise on breaches of promise of Te Tiriti, not on any of that other legislation.
"...and in the development of Te Tirity jurisprudence. And what we're saying is that after fifty years of all that institutional knowledge is that everybody knows more about it than them."
No, I don't think that's what the new government is saying at all. One of the coalition partners (an actual partner) is saying it was a mistake thirty-six years ago to insert into legislation the phrase "the principles of the Treaty of Waitangi" without first defining it in legislation -- a mistake, because it invited the courts to do the lawmakers' job for them, which one of the coalition partners is now trying to do.
"A lot of New Zealanders unfortunately do not know a lot about it..."
And this is very true.
"...and they'd like it to disappear, as this government is trying to do now. To make it invisible. Well, it's not invisible, it's the founding document of this country."
It looks as if Ms Moxon knows very little about what this government is trying to do. Or at least, what one coalition partner is trying to do. Which, in this context, is to call for the undefined principles (dreamed up in 1987 and on) to be well defined. As all objective law should be. And not at all to touch what she calls the founding document.
"Whānau Ora .... is an example of what New Zealand can look like: Maori looking after ourselves ..."
As the head of a Whānau Ora practice herself, Moxon is (like the well-heeled TPM president John Tamihere) a beneficiary of the taxpayer's funding. To be cruel, one might say it's more an example of the taxpayer looking after a Māori elite, like Tamihere, who funnel the crumbs to those they claim to represent.
"...Maori having control over our own health ..."
She's conflating two people here. Individual Maori do have control over their own health. And always have, And did just as much before the creation of the separatist health organisation that has missed all its own agreed targets. (Waikato Tainui leader Parekawhi Maclean saying (very kindly): "its inability to put in place the necessary level of capability and capacity to progress its key functions had hampered performance.")
What she means is that some Maori have control over other the health of other Maori. Why does shared ancestry make that necessary? How does that help an individual's health outcomes?
I am hardly an advocate myself for a government health system of any kind. But a separatist system seems the worst of both worlds, particularly for individual Maori concerned with their own health, and forced into this system, for whom results have been less than stellar. Suggesting that prioritising kaupapa over medicine is perhaps not the best idea.
"...Māori having a say in what we would like to see, and what is needed, in our own communities ..."
Individual Māori, qua individuals, have a say in their community just as much as the next individual. It's becoming apparent that what she's advocating for is for some Maori (those like her and Tamihere et al) to speak on behalf of and
"...and when they take those things away from us [that] we have worked so hard to stand up and to put into legislation and to get that real kind of partnership that we believe is necessary for us to thrive in this country as equals...."
This is the crux: Who's this "we" here?
She's not calling for all New Zealanders to be equal as individuals -- i.e., each of us enjoying equal individual rights and privileges under law per the third Treaty clause. What she's after instead -- what she and others in her elite strata have worked so hard for, to achieve that momentum -- is for Māori as a collective to be made equal in political power to the government. With a Māori elite distributing the spoils.
That, to her and to many others, is what "partnership" truly means. Political power.
It's a patronising collectivist vision that looks to government for power and largesse, and to individuals of every ancestry to be milch cows. It's not one envisioned by either treaty.
One-hundred and eighty-three years ago, Te Tiriti emancipated Māori slaves, and put an end to the idea that the mass of men here had been born with saddles on their back, with a few rangatira booted and spurred to ride them. That was the effect of Te Tiriti: to free taurekareka.
"... and they made it [the Māori Health System] out to be race based ..."
Isn't it?
"...in actual fact it's something that is needed in our country."
An already-failing separatist system is needed? I'm not sure she's even made an argument for that, beyond the argument that the ancestry of here and those like her should bestow upon them political power.
There was a name for that in mediaeval Europe: it was called feudalism.
"The government has to hear [this] because as long as it keeps pushing that kind of rhetoric [?] and that kind of belief system, that's what's divisive, that's what's pulling this country apart, because we have a special place in this country, and that's [inaudible], and it's important that they get it right now."
It is important they get it right. And I think they think they might.
HERE'S THE MOST IMPORTANT point she made -- and there are many. But this one stands out: that she is talking at all times of Māori as a collective rather than of individual Māori. This helps reconcile the two apparently competing views of two persuasive recent views on the Treaty, aired in Ned Fletcher's recent book The English Text of the Treaty of Waitangi (which Moxon cites approvingly), and in Ewen McQueen's 2020 book One Sun in the Sky.
Both books argue persuasively that the English and Māori texts do reconcile (which overturns the scholarship of several decades, since Ruth Ross first raised the issue fifty years ago), and both argue that Māori did cede sovereignty (without which any "partnership" would be moot in any case).
But Fletcher argues that Māori (as a collective, through their rangatira) were promised self-governance, leading to partnership; whereas McQueen (writing before Fletcher's book) argues this paradigm makes no sense:
Taken to its logical conclusion, this paradigm sees iwi not so much as loyal subjects of Her Majesty's Government but rather co-regents expressing their own sovereignty. Advocates of this position assert the Treaty merely granted the Crown a partial concession to exercise authority over incoming settlers, while at the same time preserving for iwi ultimate authority over all things Maori. In effect it is argued that the Treaty established a dual sovereignty in New Zealand.
However, such thinking ignores both the Treaty itself and the historical context in which it was signed.
Start with the Treaty text. Much is made of the differences between the English and Maori versions. But one thing is certain - the word partnership appears in neither. The Treaty articles do not even imply a partnership in a constitutional sense. Rather they establish the British Crown as the ultimate legal authority in return for protection of Maori interests. The latter include land and chieftainship (rangatiratanga). However, that chieftainship is guaranteed within the context of the overarching sovereignty of the Crown.
As the Waitangi Tribunal noted in its 1987 Muriwhenua report: "From the Treaty as a whole it is obvious that it does not purport to describe a continuing relationship between sovereign states. Its purpose and effect was the reverse - to provide for the relinquishment by Maori of their sovereign status and to guarantee their protection upon becoming subjects of the Crown."
The tribunal's reference to the Treaty 'as a whole' is key. The Article Two guarantee of rangatiratanga must be understood in the context of the whole document. Iwi signed up to the whole Treaty, not just the second article. Article One establishes Crown sovereignty. In it chiefs agreed to 'give absolutely to the Queen of England forever the complete government over their land.' That's Professor Sir Hugh Kawharu's translation of the Maori version. It doesn't leave much room for manoeuvre.
[Hugh] Kawharu's translation of Article Three is equally straightforward. Maori took on 'the same rights and duties of citizenship as the people of England.' The Court of Appeal reinforced this in a key 1987 judgment, stating 'For their part the Maori people have undertaken a duty of loyalty to the Queen, [and] full acceptance of her Government.' Ironically this judgment also introduced the Treaty partnership concept that is now so popular. Full acceptance of Crown sovereignty is less fashionable.
The key difference is that Fletcher, I think, sees the Clause Two promise or "rangatiratanga" as a collective one, to be exercised by chiefly rangatira; whereas McQueen more properly sees the promise as applying individually, as a property right that could be enjoyed individually.
Just as Magna Carta was an agreement between nobles and king that came to recognise and protect individual rights of all, even commoners, so too does the recognition and protection of rangatiranga when seen individually come to do the same thing -- protecting all individual rights equally:
The preamble to the 1840 Te Tiriti makes clear that its purpose was to create a settled form of government and to secure peace and good order.
Article One confers on the Crown sovereignty or kāwanatanga (the right to make laws and to govern).
Article Two protects property rights and is based on Magna Carta principles. Magna Carta aimed to protect the English nobilities’ property rights by limiting the Crown’s powers. It catalysed a dynamic relationship between property rights and political power that led to the emergence of the modern British democracy. It created a basis for human rights protection by linking it to property rights. Magna Carta established the principle that no one is above the law – it helped establish the rule of law.
In Te Tiriti Article Two Queen Victoria promises ‘te tino rangatiratanga’ of their properties not just for rangatira and hapū, but for ‘nga tangata katoa o Nu Tirani’, that is ‘all the inhabitants of New Zealand’.
Article Three made Māori subjects of the Crown. It gave Māori equal rights with other Crown subjects, not additional or superior rights.
To use Moxon's words, but with this understanding: to thrive in this country as equals we all (as individuals) must take off our collectivist lenses...
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Ewen McQueen argues that English and Māori texts of the Treaty
agree, and that neither promise Māori self-governance. |
UPDATE:
Writing back in mid-November, Moana Maniapoto confirms that Māori activists are interpreting rights to be collective, rather than individual -- the effect of equal rights being to make a Māori elite equal in political power to the government -- a clear grab for political power based on an incorrect understanding of rights.
She begins her opinion piece by quite explicitly opposing David Seymour "pushing individual rights over collective rights." So when Seymour clarify the Treaty's third clause to mean "All New Zealanders are equal under the law, with the same rights and duties," she opposes this because, she says:
Act interpret this to focus on individual rights. Not the obligation to ensure that all who share this land under the Treaty have equal enjoyment of their respective collective rights and responsibilities....
The "Tiriti-centric constitutional model" she demands would require power-sharing between collectives -- "Māori, Pākehā and tangata Tiriti, joining the dots to solving practical problems around housing, health, schools, water, environmental degradation . . . roads."
Ayn Rand points out the flaw, and the power grab:
Since only an individual man can possess rights, the expression “individual rights” is a redundancy (which one has to use for purposes of clarification in today’s intellectual chaos). But the expression “collective rights” is a contradiction in terms.
Any group or “collective,” large or small, is only a number of individuals. A group can have no rights other than the rights of its individual members. In a free society, the “rights” of any group are derived from the rights of its members through their voluntary, individual choice and contractual agreement, and are merely the application of these individual rights to a specific undertaking. Every legitimate group undertaking is based on the participants’ right of free association and free trade. (By “legitimate,” I mean: noncriminal and freely formed, that is, a group which no one was forced to join.)
For instance, the right of an industrial concern to engage in business is derived from the right of its owners to invest their money in a productive venture—from their right to hire employees—from the right of the employees to sell their services—from the right of all those involved to produce and to sell their products—from the right of the customers to buy (or not to buy) those products. Every link of this complex chain of contractual relationships rests on individual rights, individual choices, individual agreements. Every agreement is delimited, specified and subject to certain conditions, that is, dependent upon a mutual trade to mutual benefit.
This is true of all legitimate groups or associations in a free society: partnerships, business concerns, professional associations, labour unions (voluntary ones), political parties, etc. It applies also to all agency agreements: the right of one man to act for or represent another or others is derived from the rights of those he represents and is delegated to him by their voluntary choice, for a specific, delimited purpose—as in the case of a lawyer, a business representative, a labor union delegate, etc.
A group, as such, has no rights. A man can neither acquire new rights by joining a group nor lose the rights which he does possess. The principle of individual rights is the only moral base of all groups or associations.
Any group that does not recognise this principle is not an association, but a gang or a mob.
Any doctrine of group activities that does not recognise individual rights is a doctrine of mob rule or legalised lynching.
The notion of “collective rights” (the notion that rights belong to groups, not to individuals) means that “rights” belong to some men, but not to others—that some men have the “right” to dispose of others in any manner they please—and that the criterion of such privileged position consists of numerical superiority.
Nothing can ever justify or validate such a doctrine—and no one ever has. Like the altruist morality from which it is derived, this doctrine rests on mysticism: either on the old-fashioned mysticism of faith in supernatural edicts, like “The Divine Right of Kings”—or on the social mystique of modern collectivists who see society as a super-organism, as some supernatural entity apart from and superior to the sum of its individual members.
The amorality of that collectivist mystique is particularly obvious today ...