New ways of looking at the Treaty, Therese Crocker

The Treaty on the Ground: Where We are Headed, and Why it Matters 
Rachael Bell, Margaret Kawharu, Kerry Taylor, Michael Belgrave and Peter Meihana (eds)
Massey University Press, $40.00,
ISBN 9780994130051

New Treaty, New Tradition: Reconciling New Zealand and Māori Law
Carwyn Jones
Victoria University Press, $50.00,
ISBN 9781776561100

Over 175 years since the Treaty of Waitangi was signed, the publication of two books on the Treaty offer an opportunity to check-in and assess the shape of the Treaty and the Crown-Māori relationship in contemporary New Zealand.  Both The Treaty on the Ground: Where We are Headed, and Why it Matters and New Treaty, New Tradition: Reconciling New Zealand and Māori Law demonstrate that there are still new ways of looking at the Treaty, fresh perspectives to be explored and considered. There remains a need for ongoing, meaningful commitment to the Treaty, and for new conversations about its status, its implications, and its continuing significance for all in Aotearoa/New Zealand.

The Treaty on the Ground: Where We are Headed, and Why it Matters emerged from a conference held in 2015, on the 175th anniversary of the signing of the Treaty of Waitangi. The goal of the conference, and the resulting volume, was to draw on “current ideas and experiences of the Treaty”, fundamentally by practitioners involved in working on and implementing the Treaty in a contemporary context. The astute title reflects the reality that there can be a gap between theoretical contemplation of the Treaty, and the reality of interpreting and implementing it on the ground in real time, in different circumstances, often under legal or policy constraints. What does it mean to take the principles of the Treaty into consideration during policy development, negotiations between Māori and the Crown, or in the workplace? Each of the 14 chapters represents a different aspect of the experiences of considering, and implementing the Treaty in contemporary New Zealand.

The contributors are drawn from a wide-ranging number of backgrounds. While there are a number of academic authors, there are also a significant number of practitioners, from non-academic backgrounds, represented in the volume. This has been a conscious approach by the editors, and the diversity of background and experience provides a wide variety of subject matter, creating a rich experience for the reader. This is a collection that will be useful to those interested in looking beyond the headlines into some of the detailed and varied ways the Treaty has been contemplated over the past 45 years, and with an eye to the future.

Many of the authors have a long association with and commitment to the Treaty in their specialist areas. For example, Dr David V Williams (“The Treaty of Waitangi: Māori Magna Carta”) is professor of law at the University of Auckland, and has been working with iwi since the Bastion Point/Takaparawhau occupation in the 1970s. Kim Workman (“Unconditional Rather than Reciprocal: The Treaty and the State Sector”) has had a long career in the public sector and now works in criminal justice reform. Massey University professor, Michael Belgrave (“The Storm Before the Calm: The Treaty of Waitangi Since the 1960s”) has had a long association with Treaty of Waitangi research and settlements, and previously worked as the research manager of the Waitangi Tribunal.

For those interested in the work of the Waitangi Tribunal and the process of negotiations that take place between Māori claimants and Crown to resolve historical Treaty claims negotiations in the contemporary Treaty claims settlement process ‒ which for the past two decades has come to dominate the Māori-Crown relationship ‒ there are several chapters that will be of particular relevance. The chapter by Te Kawhau Hoskins (“Te Ata Whanaunga: Relations on the Ground at the Waitangi Tribunal Hearings”) presents the unexplored meta- and micro-fields of settler-indigenous relations occurring on the ground during a Waitangi Tribunal hearing. Writing specifically about the Tribunal hearings in Northland, Hoskins reminds us that for Māori “the relation is everything”. Consequently, the outcome of a Waitangi Tribunal hearing is more than simply a “better” settlement outcome for Māori, rather it is through opportunities for engagement between claimants and the Crown, for kanohi ki te kanohi (face to face) encounters which are the “starting point for the flourishing of a commitment to justice”.

A further perspective on the commitment to justice is the chapter by long-time negotiator and public policy advisor, Michael Dreaver. Dreaver has previously represented the Crown in over 20 historical Treaty negotiations, and in his chapter “Coming of Age: Transformation and the Treaty Settlement Process”, he provides some insight into the past two decades of the process of the detailed and (appropriately) confidential work that goes on when Māori claimants and representatives of the Crown sit down in the same room to work together to resolve historical Treaty claims. Dreaver is in a rare position to write such an assessment, having worked closely in a negotiations role over this significant period, although, like many others, he credits the 1990-1999 Jim Bolger and Jenny Shipley National governments with kicking off the settlement process. (In fact, the 1987-1990 David Lange and Geoffrey Palmer Labour governments had done a great deal to initiate the process, having already engaged in formal negotiations with Waikato-Tainui and begun to develop policy to manage the negotiation of the growing number of claims registered with the Waitangi Tribunal by the October 1990 general election.) Dreaver’s chapter comes with a warning that, despite the good faith which has governed the negotiations process thus far, complacency and short-cuts on the part of the Crown could lead to problems in the future. He points to the government’s attempts to impose a Kermadec Islands marine sanctuary without first addressing the impact on iwi rights agreed through the 1992 Fisheries Settlement as one such example.

The chapter “New Grounds, Old Battles: The Kurahaupō Settlement” by Peter Meihana with Richard Bradley, Mark Moses and Judith Macdonald of the Kurahaupō ki te Waipounamu Trust, provides valuable insight to the process of settlement from the claimant perspective. But, as with all the case-studies in this book, the message of this chapter is multi-layered and interwoven. In this instance, through the recounting of the background to the claim, and the process of claim resolution from the perspective of Kurahaupō ki te Waipounamu, we are reminded that Treaty settlements are about many things, not simply just about addressing the past failings of the Crown.

Reading across the volume as a whole gives some insight into the many and varied ways in which academics and practitioners are considering and engaging with the Treaty in contemporary Aotearoa. These include (but are not limited to) museum and institution management, resource and environmental planning, education, and housing issues. The breadth of the subject matter covered is one of the strengths of the book.

One of the themes is to show the Treaty as a contemporary force, rather than an historical document, whose “application lay in the past”. The work going on does indeed demonstrate a wide-ranging commitment to the practice of engaging with the Treaty and its implications in the here and now. A further theme of the book is that there is more to the Treaty of Waitangi than the contemporary process for settling historical claims. When the Crown completes its process of negotiating and settling all historical Treaty claims, the Treaty of Waitangi will still remain as a foundational document in our country, and the commitment and the conversations will need to continue. This theme is also picked up on by Carwyn Jones in New Treaty, New Tradition: Reconciling New Zealand and Māori Law. Jones, Ngāti Kahungunu and a senior lecturer in the Faculty of Law at Victoria University of Wellington, argues that the current approach to the settlement process and the resulting post-settlement governance entities reflect a monocultural approach to the Treaty, yet for effective reconciliation to take place, these must shift to take Māori legal traditions into consideration.

Jones leads the reader through his argument by first setting out the historical and theoretical background to concepts of Māori law, then specifically those within the settlement process. The writing is accessible, so legal expertise is not a prerequisite to understanding the concepts or arguments. This work builds on Jones’s PhD thesis, completed in Canada. The work draws on a wide-range of sources, presenting ideas from Māori scholars such as Ani Mikaere and Moana Jackson, alongside indigenous scholars from around the world. As a result, the reader is informed about how the Treaty settlements process here in New Zealand fits into the attempts of indigenous peoples around the world to engage with government in a manner that takes another way of looking and being into consideration.

Jones effectively uses pūrākau (Māori storytelling techniques) to illustrate Māori tikanga, or norms and cultural values, in a way that is accessible across all cultures. The pūrākau, which are used at the start of each chapter, take the form of a conversation between a father and son. They draw on aspects of Ngāti Kahungunu tradition to present an approachable way of engaging with Māori legal concepts and knowledge.

A key argument of the book is that the Treaty settlements process has two main objectives, reconciliation and tino rangatiratanga (or Māori self-determination). This point is repeated several times throughout the book, but is not assessed or examined in any detail. Do the Crown and Māori actually have the same understanding of what tino rangatiratanga means, or looks like on the ground in the 21st century? Has the Treaty claims settlement process even begun to address this? It would seem that this is potentially another area of tension between Māori and the Crown engaged in the process of settling Treaty claims.

New Treaty, New Tradition comes with a challenge: that the current approach to Treaty settlements has the potential to represent an ongoing form of colonisation of tikanga Māori (Māori law and practice) if a Māori world view is not taken into consideration. This approach proposed by Jones would represent a departure from the current monocultural approach to law in Aotearoa/New Zealand; but it would, after all, better reflect the Māori understanding of what signing the Treaty of Waitangi meant in the first place. Jones reassures the reader that “it is quite possible to develop a Treaty relationship that respects Indigenous and state forms of political authority.” Such a relationship envisaged by Jones would mean that the settlement of Treaty claims would not mark the end of the Treaty relationship, but rather signify a new beginning.

A prevailing theme of both these books is that there is more to the Treaty and to the Crown-Māori relationship than the contemporary process for setting historical claims. The Treaty is broader and deeper than that. Rather, the Treaty sits, and will continue to sit, firmly in the bedrock of our country. These two books serve as a reminder for us not to limit the way we see the Treaty in the present-day, and into the future.

Therese Crocker, who has recently graduated with a PhD from Victoria University of Wellington, has worked as a historian on Treaty-related matters for more than two decades.

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