Principles for Crown Action on the Treaty of Waitangi

Whatever the truth about the devolution scheme, no one could gainsay that the fourth Labour government had been taking the Treaty of Waitangi far more seriously than had its predecessors. The State Services Act in 1988 instructed public servants to incorporate Treaty principles into their policies and operations. The decision late that year to appoint academic lawyer Alex Frame to establish TOWPU to coordinate, strategise and provide advice on Treaty issues within the state sector followed increasing pressure from Maori for the government to clarify and improve its Treaty policies. The government, in turn, had been particularly concerned with the potential destabilisation that land and fishing claims could cause the political economy if they were not properly managed. In July 1989, the government released the Principles for Crown Action on the Treaty of Waitangi with the aim of providing transparency over its operational principles for Crown–Maori relations.

The document presented five principles: kawanatanga, or government; rangatiratanga, or self management; equality; cooperation; and redress. These drew upon and elaborated current thinking within the Crown on ways of ‘honouring the Treaty’, a culmination of the rapid developments of the previous few years. The Crown Action principles confirmed explicitly for the first time the need for compensation for historical grievances, incorporated judicial and Tribunal pronouncements, stressed the need for good-faith cooperation between Crown and Maori and recognised the need to work towards Crown– Maori partnership. Taken together, they constituted a policy breakthrough,page 238 although they fell short of what many had hoped for: ‘partnership’ itself was not explicitly identified as a principle, for example, but as an aspiration; and while Article One’s kawanatanga was said to be qualified by Article Two’s rangatiratanga, the ‘balance between the two’ was seen as a matter for ‘case by case consideration’.

Some critics noted that the new policy statement was more cautious than specific judicial and Tribunal pronouncements. Others remarked that, in effect, it reiterated interpretations coming from the Prime Minister, the DMA (for example, in He Tirohanga Rangapu) and other state sources that Article Two required little more than the Crown acknowledging the fait accompli of iwi self-management. This was, on the surface, consonant with fledgling ILO Convention 169’s aim of promoting control by indigenous people ‘over their own institutions, ways of life and economic development’. But it was seen as falling short of the aspirations of Maori people themselves, which had been better encapsulated in the words of the 1987 United Nations Indigenous People’s Preparatory Meeting in Geneva. This had endorsed the right of indigenes ‘to self-determination, by virtue of which they have the right to whatever degree of autonomy or self-government they choose’. What the Crown was offering in New Zealand, by contrast, appeared to critics to be a very limited autonomy, a resiling from previous commitments to respect ‘a claimant group’s rangatiratanga and right to organise themselves as they see fit’. Overarching such critiques was an assessment that the government understood rangatiratanga as something to be delegated rather than something that was ‘inherently legitimate’.

When commentators attacked the Principles for Crown Action for supposedly turning court and Tribunal findings on the Treaty to state advantage, the Crown riposted that it did not seek to reinterpret the Treaty principles developed by the Waitangi Tribunal and the judiciary; rather, it addressed them respectfully, and was now indicating how it intended to apply them. Some sectors of Maoridom accepted this. Others continued to express fears that the political executive was engaging in ‘a deliberate and cynical move to redefine the Treaty’ or, at very least, to contain expectations aroused by judicial and other developments over the previous few years. They claimed that when Labour’s Treaty policies had become an economic and political liability, its commitment to te tino rangatiratanga had waned. Indicating how it would act on the emerging principles was tantamount to dictating the terms of engagement. The government, it was widely alleged, had retreated from promises to provide means for Maori to fulfil their dream of autonomy. Whatever the Principles for Crown Action said about Article One being qualified by Article Two, the document was seen to have ‘signalled the supremacy of thepage 239 Crown’ in a way that amounted to ‘an assertion of government control over the Treaty discourse’.¹⁸

Accusations of government reticence about aspects of evolving judicial-based principles seemed confirmed when, in January 1990, Lange’s replacement as Prime Minister, Geoffrey Palmer, reasserted the rights of Parliament over and above those of the judiciary: ‘the Government’, he said, ‘will make the final decisions on treaty issues’. This was not a surprising statement for the leading figure in a ‘parliamentary democracy’ to make, but it was uttered in a context which suggested to critics a resiling from the full ramifications of honouring the Treaty. Nonetheless, large numbers of Maori and pakeha alike continued to see in the Principles for Crown Action a major statement of intent to honour the Treaty that could be utilised in the services of rangatiratanga. While many felt that the policy statement itself constituted a back-off from partnership, others took comfort in the Crown declaring that it did not think that ‘partnership’ could be created by decree but needed to emerge organically out of cooperation. The Principles for Crown Action had not only tempered the previous stance of the Crown on ‘indivisible sovereignty’, but the five principles had given Maori significant guidelines to work within – including to develop the devolution proposals.

These principles, in fact, proved to have great durability. Although the National Party pledged to rescind them in the 1990 election campaign, this did not happen after its victory at the polls that October. When National leaders realised that they could not discard the Treaty, they and their officials used the principles as guidelines when developing a number of policy strategies which incorporated advances for Maori, such as those outlined in Social Welfare’s Te Punga O Matahorua in 1994. Although later ‘supplemented’, the Principles for Crown Action provided longstanding guidelines for the state that could continue to be put to good use by Maori and supporters of Maori causes. When, in 2004, the Labour-led government’s Coordinating Minister for Race Relations declared ‘We are all New Zealanders now’, he balanced his advocacy for pakeha indigeneity by stressing the continuing significance of the Crown’s 1989 ‘action principles’. While commentators continued to declare that the Principles for Crown Action straitjacketed progress towards meeting Maori aspirations – even that it trapped Maori within the dominant discourse of Crown sovereignty, and so denied rangatiratanga – others noted that the guidelines in the document enabled pro-Maori policies to be endorsed even in otherwise unpropitious times.¹⁹

Most dramatically, the Principles for Crown Action furnished a context for the Crown to address seriously the case for reparations for proven historical grievances. Tribes had long sought acknowledgement of, and apology for,page 240 the colonial injustices inflicted upon them. Many now looked as well to compensation to help provide a base for rebuilding rangatiratanga, often in conjunction with resources to be conferred by devolution. The stress in the Principles for Crown Action on redress of historical grievances held out exciting new prospects at a time when Tribunal reports had yet to lead to significant reparational negotiations. The official 1990 sesquicentennial commemoration of the signing of the Treaty of Waitangi built on the 1989 policy statement in its celebration of the Treaty as a ‘living document’ that was a ‘symbol of our life together as a nation’. The Treaty was officially described as a ‘pact of partnership…which continues to act as a national symbol of unity and understanding between cultures’. There was extensive promotion of a distinctively bicultural ‘national identity’, with advertising campaigns attempting ‘to capture the spirit of the two peoples, pakeha and Maori, in one nation’. In recent years, the official statements argued, ‘major and irreversible adjustments had been made within New Zealand society’.

In these processes, Maori leaders and their perspectives, and judicial and other pronouncements from within the state machinery, had all enjoyed remarkably high profile. Over a decade and a half, in the words of lawyer Paul Temm, Treaty matters had come ‘into the forefront of public discussion and debate’. Along the way, for him (and many others) the Waitangi Tribunal had become (as he indicated in the subtitle of a book) ‘the conscience of the nation’. However much it was criticised, the Principles for Crown Action had encapsulated official responses to the social, cultural and ideological movement that had occurred within Maoridom. Later governments could cite its guidelines to justify resisting pressures to modify some of the concessions made in the 1970s and 1980s. Likewise, when confronted with attempts to ignore their views, Maori could always point powerfully (though not always successfully) to the Crown’s very own ‘action principles’.

The 1989 document, then, provided a mechanism for calling governments to account, and embodied an official statement of intent to address the circumstances which had marginalised the Maori voice. The Principles for Crown Action provided guidelines for ways of both compensating for that marginalisation and reversing it – a task summed up at Waitangi in 1990 by the Maori Anglican Bishop Whakahuihui Vercoe, in an address in front of the Queen that was essentially a call for official respect for rangatiratanga. The restoration of at least a significant degree of autonomy no longer seemed an impossible dream. Even Maori activists considered by many to be ultra-radical, such as Moana Jackson, had been talking the language of attainable reconciliation: ‘Maori do not wish to be separatist. They want to be side by side, and be free to determine their own destiny.’²⁰