CONSTITUTIONAL FOUNDATIONS

[1]Whether their kōrero was with kaumātua or rangatahi, or with those living in cities or rural areas, there was always acceptance from those that Matike Mai o Aotearoa spoke to that Te Tiriti was the only possible starting point for any discussion about a new constitution.

If a constitution without tikanga was seen as not being tika, then a constitution that did not derive from Te Tiriti was similarly seen as contrary to both tikanga and any broader sense of justice.  It was in a very real sense seen as another breach of Te Tiriti.

It was equally clear in their kōrero that basing a constitution on Te Tiriti was indeed quite different from incorporating it into the existing constitutional system.  Te Tiriti’s reaffirmation of tino rangatiratanga and its non-cession of mana was constantly referred to as simple statements of fact which precluded its incorporation into any other system.

Equally importantly, Te Tiriti’s entrenchment of a place for Pākehā was also seen as a statement of cultural reality in 1840 – that as tangata whenua, Māori were obligated to allow manuhiri certain entitlements as well as the authority to govern themselves, just as that authority was acknowledged amongst Iwi and Hapū. 

Reaffirming the place of Pākehā and determining the tikanga which justified it was also seen as a necessary basis for any treaty-based constitutional relationship.

Throughout all of this process our people were passionate and committed to Te Tiriti.  They had a broad historical sensibility about the circumstances of its signing and its meaning for Māori as well as an awareness of a differing Crown perspective.

There was also a consensus that it involved a special set of rights and obligations which had not yet been completely honoured.

While everyone was appreciative of the treaty-based changes that had been made in recent years, they were also agreed that the treaty relationship involved more than the kind of “partnership” that has been the dominant view in the recent Crown Treaty policies and jurisprudence.

In fact it was noticeable how often people used the term “treaty relationship” rather than “treaty partnership”.  It was also noticeable how often it was remarked that the “partnership” was never equal in the way that it was implemented by the Crown.

The inevitable awareness of and debate about the Crown’s Treaty settlement policies was shaped by those experiences. 

Even when we spoke with people who were proud of their involvement in settlement negotiations, there was an often forcefully expressed sense that until the power imbalance in the treaty “partnership” is addressed, there cannot be completely full and final settlement.

In recent months this column has laid out the importance of basing any new constitution on He Whakaputanga and Te Tiriti.  Next week we will begin laying out the international precedents that are also important to our constitutional foundations.

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[1] Seventeenth edited extract from pp. 50 and 57 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

THE HOPE OF TE TIRITI

During the many hui that Matike Mai o Aotearoa held, everyone they heard from acknowledged how difficult it would be to effect constitutional change.  But nevertheless they remained keen to explore what a Tiriti-based constitution might mean, and in a quite inspiring way they imagined solutions[1] –

“My aunties and uncles always talked about the treaty being the only hope they had whenever they had to fight for something.  They were disappointed lots of times and had their hopes dashed because the treaty was never seen like this sort of constitution would see it … like the foundation of everything.” 

“I was really disappointed but not surprised when the Crown just rejected the (Waitangi Tribunal’s Te Paparahi o Te Raki Stage 1) Report … That was really arrogant and flies so much in the face of all the evidence let alone what is right that I wonder how long it can be sustained.  I hope that this mahi might help us all move away from those sorts of arguments and accept that Te Tiriti gave us the foundations for a different constitution … a better way of doing things.”

“It’s not a valid argument against constitutional change just to say that it won’t happen because the Crown is in charge … it’s not any sort of argument and doesn’t detract from what Te Tiriti says.”

“Normally I don’t use words like ‘constitution’ but I talk about Te Tiriti … and I think that in that relationship between us and the Crown there was never any intention that the Crown would be our sovereign … and without the Crown assuming it’s in charge we have the seeds of a much different constitution.”

“I am confident that the only real constitutional solution lies in what Te Tiriti guaranteed, a place for everyone and an absolute place for mana and rangatiratanga … but how to do that in  light of our history since 1840 I can only hazard a guess, although for my mokopuna’s sake I hope we will try.”

“Our group agreed that this will be really hard because there will be all kinds of practical problems like voting and setting out the different areas of responsibility, but … we agreed that with time and good will, we will get there.”

“It will be difficult to change things but it won’t be impossible because Te Tiriti shows us the way … to a different political order where we actually find a better way of making law that benefits everyone.  It’s an exciting challenge really and the next step in getting the treaty honoured.”

“Te Tiriti has still not been honoured by government, but that doesn’t mean its real promises no longer exist.”

“I wish my old people would still be alive if we get there, when we get there, because that would give them hope.”

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[1] Sixteenth edited extract from pp. 55 – 57 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

THE PROMISE OF TE TIRITI

At every hui of Matike Mai o Aotearoa where Te Tīriti o Waitangi was discussed, there were three main kōrero.  First was the kōrero that consistently referenced what the old people had passed down. 

[1]“Knowing what our old people have told us, it just seems logical that we would never have ceded anything to the Crown.  But the old people also said that we offered Pākehā a place to stand, and that seems logical as well because it’s about manaakitanga … it’s not about them trampling on our manaaki and us trampling on their right to be here which Te Tīriti gave them … that was the bargain really, only it never worked out the way that the rangatira intended … and probably not the way some Pākehā might have wanted at that time either.”

 “It is important that if you are to write about a constitution based on Te Tīriti, that you stay focussed on what our tūpuna said, and not what generations of Crown officials and lawyers have told us.”

Second was the korero that reaffirmed Te Tiriti maintained our mana and did not cede it. 

“Understanding Te Tīriti means understanding … that our old people only talked about and signed the words in te reo, because that was it at that time, and … we didn’t give away our mana to be in charge of ourselves, but kept it and asked Pākehā to look after themselves too, according to certain tikanga.”

“When Te Tīriti is seen as maintaining our mana rather than giving it away, it is easy to see it like two lots of different mana coming together, us and Pākehā, and all of us having to work out a proper relationship where one doesn’t boss the other around.”

Third was the korero that understood that Te Tiriti is fundamental to any future constitution.

“Te Tiriti as a base (for a constitution) is a no-brainer … It will finally settle the past and provide … a good blueprint for the future.  But as always the devil will be in the detail.”

 “Te Tīriti has everything a constitution needs – the recognition of each community’s mana, the preservation of each community’s decision-making authority, and the recognition that there are things everyone has to come together to make a decision about.”

“I have always believed that Te Tiriti is a constitutional agreement.  It said that we were to carry on making law for ourselves while the Crown was to organise Pakeha.  That is what a treaty-based constitution means.”

As can be seen, these korero come from people who believe in the constitutional promise of Te Tiriti, and are realistic but undeterred about the difficulties of bringing that promise to fruition.  In coming weeks we will share some of their thinking on those difficulties.

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[1] Fifteenth edited extract from pp. 53 – 54 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa