THE TREATY OF WAITANGI AND SOCIAL POLICY.

• Author: Barrett, Mark

New Zealand Government policy toward the Maori population in the 1990s has been characterised by an emphasis on the settlement of historic grievances, largely concerning traditional property rights. The registration of claims and the settlement of claims have consumed much time and expense on the part of both Government and Maori. This process has, however, been essentially historical in its focus and there are many issues around the health of Maori-Crown and Maori-non-Maori relationships in the present and in the future that have yet to be addressed. In particular, the Crown's obligations toward Maori in the social policy area are emerging as an area of debate. This is also an area in which the Crown's stance on the Treaty, we will argue, lacks consistency. For this reason it is likely to be an area in which much debate will be focused in the next few years.

This paper discusses the Treaty of Waitangi as it has been interpreted and applied in key areas of New Zealand Government social policy, in particular, the health sector and iwi social services. By no means is it intended to be a complete history of the New Zealand Government's social policies as they have impacted on Maori. Neither does the paper attempt a detailed history of Treaty jurisprudence in New Zealand (the reader is referred to McHugh (1991) for this). However, some basic knowledge of this history is necessary to understanding the application of the Treaty to social policy, and for this reason, and for the benefit of international readers, the paper begins with a general introduction to Treaty issues. The paper proceeds with an overview of the Treaty's legal status and its appearance in relevant pieces of legislation. This is followed by a discussion of the major Treaty debates as they relate to social policy.

Much of the source material for this paper, particularly regarding the various perspectives on Treaty issues, comes from spoken communication or other unpublished sources, and we have not referenced this material. (All published sources are referenced, of course). The views we express are entirely our own. Furthermore, we make no claim that these views are generally representative of the views of other Maori, or of Pakeha with an interest in these issues.

THE TREATY OF WAITANGI

Representatives of the British Crown and New Zealand's Maori chiefs (rangatira) signed the Treaty of Waitangi in 1840.(3) Two versions of the Treaty exist, an English version and a Maori version. Most rangatira signed the Maori version. The two versions of the Treaty are not exact translations of each other and this has been the source of considerable ambiguity and conflict in Treaty interpretation. The Treaty contains a preamble and three clauses or articles. The paragraphs below discusses the articles' contents.

Article 1 in the English version states.(4)

The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or possess over their respective Territories as the sole Sovereigns thereof. While in the English version Maori cede "sovereignty" to the Crown, the Maori version uses the term kawanatanga, which translates as "governance". It is an issue of some debate as to what exactly rangatira intended when they ceded kawanatanga. One point of view is that rangatira agreed to delegate authority for administering the country to the Crown -- the important point being that this delegated authority was ultimately subject to the overarching authority of rangatira. (Orthodox commentators reject this constraint on kawanatanga.) Another perspective is that rangatira agreed to the Crown having authority over Europeans living in New Zealand, while chiefly authority over Maori was unaffected. While there is debate about the exact intent of rangatira when they signed the Treaty, very few Maori commentators believe that rangatira intended to cede absolute authority over Maori to the Crown.

Article 2 in the English version states:

Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf. Article 2 has been interpreted by orthodox Western jurists as a re-statement of indigenous common-law rights (indigenous common-law rights are discussed further below). Their emphasis in interpreting this clause of the Treaty has therefore been on protection of Maori property rights. This approach to Article 2 has contributed to a recent raft of Crown/Maori Treaty settlements around property issues. As with Article 1, however, the Maori version of Article 2 conveys a somewhat different meaning to the English version. In place of the expression "undisturbed possession of their Lands and Estates Forests Fisheries and other properties", the Maori version of the Treaty uses the expression "te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa". This can be loosely translated as "chiefly authority over lands, villages and all things precious". The term tino rangatiratanga, which can be translated as "chiefly authority",(5) is a term that to Maori more closely corresponds to the term "sovereignty" in Article 1 of the English version. Furthermore, in using the term taonga, or "things highly prized", the Treaty goes beyond Western concepts of property, since the term can be applied to children, language or culture and other things that would not normally be considered property by Europeans.

From the Crown perspective, the Treaty has been perceived as Maori submission to British sovereignty (Article 1) in exchange for British Citizenship (Article 3) with traditional property rights to be protected (Article 2). A contemporary Maori perspective is that the Treaty conceded to the Crown a right to administer the country in the interests of all inhabitants, Maori and Pakeha, but that an absolute guarantee of Maori control over all matters Maori applied. Thus, debate revolves around the extent to which the Crown's powers under Article 1 are limited by the guarantees in Article 2. The Waitangi Tribunal has held that the Crown's right to govern must be balanced against the obligation to protect rangatiratanga.

Article 3 of the English version states:

In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects. Interpretation of Article 3 and its Application to Social Policy

There has been comparatively little debate about the meaning of Article 3 of the Treaty. This may be because Maori and the Crown are largely agreed about what the Article means, or that priority has been given to the settlement of grievances based on the breach of Article 2 rights. The debate about the meaning of Article 3 has centred around what are rights of citizenship, and whether Article 3 guarantees to Maori equal opportunities or outcomes.

There is some argument as to whether citizenship guarantees social rights.(6) In fact social rights were not expressed in New Zealand law until the late nineteenth and early twentieth centuries with the rise of social theory and the development of the welfare state and human rights norms. However, modern theories of citizenship, international human rights instruments, codification of certain social rights legislation and the general acceptance by Western citizens of the right to welfare, leads to the conclusion that there is a link between social rights and citizenship rights (Walghan Partners 1996).

Many argue that the rights and privileges of citizenship that are guaranteed to Maori under the Treaty are limited to the civil and political rights that existed in 1840. This view is discounted by the prevalent view amongst commentators that the Treaty is a living document and its guarantees are not limited to the circumstances that existed at the time it was signed.

If one accepts that citizenship rights include social rights, the debate turns to the meaning of the phrase "the same rights of citizenship", and the meaning of "equality". One view is that Article 3 concerns the actual enjoyment of social benefits, and guarantees "equality of outcome". Others argue that Article 3 guarantees equality of opportunity, or equality under the law. Under this view it is claimed that equal rights of citizenship are achieved where the law makes no distinctions between Maori and non-Maori. The debate between equality of opportunity and outcome does not get us particularly far as equality in reality can never be achieved -- it is just an objective or ideal to work towards.

Another approach is that is that Article 3 guaranteed more than the right to be treated equally under the law. Such a right is of little use unless there is equitable access to all of society's goods, including health, education and all the necessities of a good standard of living. Disparities between Maori and non-Maori in income, health status, educational attainment, labour force participation and a host of other variables, indicate that individual Maori have not enjoyed the reciprocal benefits...