In the fifth of her series on the Treaty of Waitangi and democracy, Dame Anne Salmond examines the implications of Attorney General David Parker's findings on the proposed Rotorua representation bill.
Read her earlier articles here:
► Part 1: Judges led by misunderstanding of Māori belief systems
► Part 2: Judicial rewriting of history worsened Treaty problems
► Part 3: Arguing for a tikanga-based approach to Te Tiriti
► Part 4: Te Tiriti dictum of unite and rule
In his report on the Rotorua District Council (Representation Arrangements) Bill, the Attorney General David Parker assessed the arrangements proposed in the Bill against the Bill of Rights.
Because the proposal would give Māori electors representation at a rate roughly twice their numbers in the Rotorua district, he concluded that this representation was disproportionate, and discriminatory against non-Māori electors. He writes:
“This proposed arrangement detracts from the key constitutional principle of equal representation in a representative democracy. I consider that there must be strong reasons to depart from this fundamental constitutional principle, and accordingly, to justify the limit on the right to freedom from discrimination.”
Those in favour of the provisions of the Bill have argued that the Treaty of Waitangi creates a partnership between Māori and the Crown, and that the Fenton agreement which set up Rotorua township made a similar commitment. From their vantage point, these promises together justify “the limit on the right to freedom from discrimination.”
In 1857, however, Francis Dart Fenton (who also negotiated the Fenton agreement) wrote, ‘No system of government that the world ever saw can be more democratic than that of the Maoris. The chief alone has no power...No individual enjoys influence or exercises power, unless it originates with the mass and is expressly or tacitly conferred by them.’
Frederick Maning, an early settler in the Hokianga who lived among Māori, agreed: ‘The natives are so self-possessed, opinionated, and republican, that the chiefs have at ordinary times but little control over them, except in very rare cases, where the chief happens to possess a singular vigour of character, or some other unusual advantage, to enable him to keep them under.’
Even in war, as the missionary Henry Williams noted, “it was their usual way for each party to go where they liked, that everyone was his own chief. Without any one to direct, not only does each tribe act distinct from the other, but each individual has the same liberty.”
The evidence suggests that democratic values cannot be regarded as a colonial imposition.
As Pita Tipene explained to the Waitangi Tribunal, the power of the Rangatira is tightly constrained by hapu members: “A rangatira is a person who weaves people together. The rangatira is not above the hapu. The rangatira must listen to the hapu, in accordance with tikanga. If they do not listen they will be cast aside.’ Whakahīhī – raising oneself above others – is not admired in te ao Māori.
How, then, does this influence our reading of Te Tiriti?
The Waitangi Tribunal has already determined that in Ture (Article) 1 of Te Tiriti, the gift of ‘kawanatanga’ by the Rangatira to Queen Victoria cannot be fairly translated as ‘sovereignty.’
In Ture 2, the Queen affirmed the ‘tino rangatiratanga’ of the Rangatira and the hapū, and ‘nga tangata katoa o Nu Tirani’ (all the inhabitants of New Zealand). Tino rangatiratanga was promised, not only to Rangatira and hapū, but to all the persons in New Zealand.
In Ture 3, the Queen promised to care for ‘nga tangata maori katoa o Nu Tirani’ (all the indigenous inhabitants of New Zealand) and to give to them ‘nga tikanga rite tahi’ (tikanga exactly equal) to those of her subjects, ‘nga tangata o Ingarani’ (the inhabitants of England).
This promise of absolutely equal tikanga was also made to individuals, indigenous and settlers alike.
The weight of the evidence suggests that the mana of individual persons was intrinsic to ancestral tikanga, and that like the Bill of Rights, Te Tiriti places ‘nga tangata katoa o Nu Tirani’ (all the inhabitants of New Zealand) on an equal footing.
For this reason, the refusal to allow Māori citizens equal representation in colonial regimes of governance was regarded as a fundamental affront.
If this argument is well founded, the equal value of individual citizens is upheld by Te Tiriti o Waitangi as well as the Bill of Rights.
The Attorney General’s intervention is timely, with his reminder that the rights to equal representation and freedom from discrimination are fundamental constitutional principles in Aotearoa New Zealand.
No New Zealander should be asked to accept that, by virtue of their birth, they are less worthy than any other. And the chances that if they are asked, they will agree, are vanishingly small, because to do so is to surrender their dignity as a person.
As it states in the Universal Declaration of Human Rights, ‘Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’
No ifs, no buts, no exceptions.
