Act, which is on track for its best-ever election result, is proposing an end to co-governance and a radical reinterpretation of the Treaty of Waitangi. What do historians and other experts think?
If the results of recent polls were translated into October’s election outcome, Labour would likely be replaced as the government by a National and Act coalition. Act could win as many as 17 seats. How might this election outcome change New Zealand’s direction? National’s campaigning is nothing out of the ordinary – focusing on fixing the economy to reduce the cost of living, restoring law and order, and improving our schools and healthcare, to “get our country back on track”. But David Seymour’s party will bring fresh bargaining chips to the hypothetical coalition negotiation table.
Act’s policies cover the party’s usual areas like tax reform and reducing bureaucracy, but they’re also promising to “rebuild democracy”. Topping their list for “a more democratic New Zealand” is the question “democracy or co-government?”. Act’s answer is unequivocal: “co-government is ultimately wrong, and New Zealand needs a path back from it.” Party leader David Seymour has said a referendum on the Treaty would be a “bottom line” for Act. While National leader Christopher Luxon told RNZ, “I’m saying to you that is something that’s not our policy and we don’t support it,” he is yet to explicitly rule out adopting these policies during coalition negotiations.
Act’s co-governance and Te Tiriti o Waitangi policies
According to Act’s website, “There is little open debate about how New Zealand should navigate the choice between liberal democracy and co-government, because questioning co-government is often met with charges of racism… Act would restore universal human rights in New Zealand’s laws, public affairs, and constitutional settings.” Their policy has three parts:
- Basing Treaty principles on the actual Treaty, not interpretations of “obscure” principles. The public would be invited to confirm this via a referendum.
- Repealing recent co-governance laws, such as the Three Waters legislation, local government representation legislation, and elements of the Pae Ora legislation. (They would also abolish Te Aka Whai Ora).
- Reorienting the public service towards “equal opportunity according to robust statistical evidence instead of racial targeting”, plus devolution and choice for all.
When The Spinoff approached Act for policy clarifications, their answers failed to directly address our questions – so we have sought comments on the party’s policies from a range of New Zealanders of differing ethnicities, occupational backgrounds and political affiliations who have strong knowledge about topics like the Treaty, co-governance and decolonisation.
What are the ‘principles’ of the Treaty?
The three Ps – partnership, participation and protection – are the most well-known principles. They ensure Māori have opportunities to provide input into government decisions and require the Beehive to protect rangatiratanga actively. Other principles include kāwanatanga, rangatiratanga, equality and redress.
As a historian and a former Waitangi Tribunal member, Aroha Harris (Te Rarawa, Ngāpuhi) is an expert on Treaty principles, which she says provide high-level guidance for how to honour the Treaty. “The principles on their own are not harmful; they are quite neutral – it’s what we do with them that matters,” Harris says. Another New Zealand historian with a strong background in Treaty topics, Michael Belgrave, notes that the principles are a way to make sense of 183-year-old documents so they can be applied to the present.
Belgrave explains the principles were designed – by the Waitangi Tribunal, courts and government – to bridge the gap between the Treaty of Waitangi (the English version) and Te Tiriti o Waitangi, the reo Māori text that the vast majority of hapū signed. After decades of debate, no clear consensus on either text’s meanings has been reached – nor has a universal interpretation of them combined been agreed upon, says Belgrave. “We have only come to non-definitive understandings about the texts,” Harris adds. Belgrave points out that most opposition to the principles over the years has come from “Māori who see them as not going far enough”, as opposed to Act’s position that they have gone too far.
Act’s reinterpretation of the Treaty of Waitangi
In a 20-page document explaining its policies to “rebuild democracy”, Act has offered its interpretation of the three Treaty articles, which it says are based on the actual texts instead of the principles. They are:
- The New Zealand government has the right to govern New Zealand.
- The New Zealand government will protect all New Zealanders’ authority over their land and other property.
- All New Zealanders are equal under the law, with the same rights and duties.
Act argues its reinterpretation cites both texts, stating they rewrote article one based on kāwanatanga from Te Tiriti o Waitangi: “In the first article of the Treaty, rangatira gave absolutely forever the complete government (kāwanatanga) of New Zealand.” But Treaty academics have long said translating kāwanatanga is difficult.
As Harris explains, there is tension between kāwanatanga and rangatiratanga in Te Tiriti. In 1840, hapū permitted kāwanatanga as a subset of their tino rangatiratanga – each with distinct but concurrent responsibilities. Kāwana is an adaptation of the English word “governor”, and it has been argued that the meaning of kāwanatanga is closer to “governorship” than sovereignty – in the manner of governors of American states, who report to Washington DC but also have independent authority. However, over time, Crown authority was imposed over mana motuhake through cultural, economic, environmental, military and social colonisation. Harris argues that the texts alone can’t ease these tensions.
Belgrave agrees, saying that by trying to definitively define the texts’ meanings, Act “will open up Pandora’s box”. “Anyone who knows anything about this topic wouldn’t come up with this policy,” he adds, saying it shows “they don’t have any understanding of the 50 years of Treaty principles debate”.
What’s more, Harris says although Act argues its policy rejects existing principles, the article one reinterpretation – “the New Zealand government has the right to govern” – is already a principle. Act also says article two does not refer to ethnicity and te tino rangatiratanga – an explicitly tangata whenua source of authority – can be applied to all New Zealanders. Harris notes this translation “is technically correct and an interesting way to interpret ‘ngā tāngata katoa’, but it is missing the context”.
Samah Huriwai-Seger, a decolonisation activist at Aotearoa Liberation League, agrees, saying Act has employed mistranslations and took kupu out of context. She believes tino rangatiratanga has been misinterpreted as authority over private property. “Asserting private property rights above Māori sovereignty was one of the main colonial tools against Māori and Act proves that the tactics haven’t changed,” she says.
Chris Finlayson, who was Treaty negotiations minister in John Key’s National government from 2008-2017, has described co-governance as joint management arrangements between iwi and councils/the government. Diverse New Zealanders who have participated in these initiatives speak positively of them, including Meng Foon – formerly New Zealand’s race relations commissioner and Gisborne mayor for 18 years. Foon says as mayor, he was “a practitioner of co-governance. I have seen it work exceptionally well in our district and country.” Gisborne District Council, including tāngata whenua around their governance table, “moved mountains to solve big problems in Tairawhiti”, he says. “Once upon a time, only British men made decisions for New Zealand, and look at the disaster that was for Māori, women and Chinese,” Foon says. He believes that without co-governance, “the nation will go backwards because you won’t find the best solutions.”
Finlayson – who enacted several co-governance initiatives during his time in government – also supports the kaupapa. In an interview with E-Tangata last year, he said the Crown “went out of its way to breach” the “unqualified exercise of . . . [Māori] chieftainship over their lands, villages and . . . treasures”, and co-governance helped right those wrongs. Finlayson said he wanted New Zealanders to accept that iwi involvement in state activities is good and natural. “I will continue to talk about co-governance as something to be embraced, not feared – and some people won’t like it. Bad luck,” he said to E-Tangata. Speaking to RNZ, Finlayson said those who oppose co-governance were the “sour right” who employed “racist, resentful rhetoric”. “We’ve just got to leave those losers behind and move on,” he noted, adding, “there’s a new regime, get with it, folks.” Although he supports co-governance, Finlayson said Labour had explained the concept poorly and he would like to see a more respectful and civil debate.
As the current Māori development minister, Willie Jackson, has pointed out, co-governance initiatives have been supported by several previous National governments. He said to RNZ that if Luxon supported Act’s anti-co-governance stance, he would trample the mana of his predecessors Jim Bolger, John Key and Bill English. “All of these prime ministers never had a problem with what Seymour’s got a problem with,” said Jackson. “Seymour’s not an expert on this; he’s not a top lawyer, he’s not a top judge. Every judge since 1987 has supported what this government is doing and what the previous National governments were doing.”
Who should make this call?
Act wants its Treaty reinterpretation to go to a referendum, but Harris says referendums oversimplify issues by supplying information that doesn’t explain complex kaupapa well enough. Belgrave agrees, saying reducing the Treaty to digestible tidbits as part of a referendum while maintaining its meaning is impossible. Foon adds, “let’s be upfront about the fact that if there is going to be a referendum, the tyranny of the majority will rule.”
The Spinoff asked Act via email whether the party believed New Zealanders would make an informed referendum choice. A spokesperson answered: “If you pause for a moment and think about it, you are asking whether New Zealanders are too ignorant to choose their destiny. We believe that New Zealanders are qualified to make decisions about their future.” But Harris is concerned the public isn’t educated enough about history to make an informed decision.
In a 2019 article, Belgrave noted how New Zealand was (up until this year) one of the few countries in the world not to teach their citizens national history, giving examples of the general population’s lack of knowledge about the Treaty. Te reo Māori is also not compulsory learning despite its official language status – limiting the public’s understanding of te reo me ōna tikanga. These issues make understanding a historically and culturally charged topic like the Treaty challenging. Foon believes instead of putting this decision to a referendum, “we should let Māori decide.”
When The Spinoff asked Act whether their policies had Māori input, the spokesperson answered, “We find the question offensive, it seems to assume people should be qualified by race to have an opinion.” But Huriwai-Seger and her partner Pere (Ngāpuhi), ALL activist and Te Pāti Māori candidate, say Seymour’s party is embracing paternalism, a foundational tenet of colonisation that views Indigenous Peoples as subhumans who need supervision. “Colonial paternalism is so insidious: after oppressing indigenous communities into poverty and hardship, they’ll point and say ‘see, they can’t look after themselves’,” notes Pere.
This is Public Interest Journalism funded through NZ On Air.