Time for ‘honest’ dialogue about resolving our ‘confused constitutional roots’

Carol E. Corker

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The dawn service at the Waitangi Treaty Grounds in 2021. Waitangi Day celebrates the signing of the Treaty of Waitangi on February 6, 1840. “This dual-language treaty, ambiguous at best, intentionally duplicitous at worst, is the legal, ethical, and constitutional foundation on which the nation in this land was founded,” Helmut Modlik writes.

Fiona Goodall/Getty Images

The dawn service at the Waitangi Treaty Grounds in 2021. Waitangi Day celebrates the signing of the Treaty of Waitangi on February 6, 1840. “This dual-language treaty, ambiguous at best, intentionally duplicitous at worst, is the legal, ethical, and constitutional foundation on which the nation in this land was founded,” Helmut Modlik writes.

Helmut Modlik is chief executive of Ngāti Toa

OPINION: The story is told of a couple who agreed to a visitor boarding with them in their large family home. The relationship was amicable and mutually beneficial, so when the visitor asked if other family members could also stay, the householders agreed. In passage of time, the number of ‘visitors’ grew, and the householder’s own family left, leading the visitors to eventually decide it was time for a change. The couple were advised that a vote had been taken, and the majority had decided that they could still live there, but the ‘visitors’ would now own and control the property!

When Europeans arrived in this ‘land of the long white cloud’ there were Polynesian people already living here. Their tribal society, led by orator warriors, controlled the land and its waterways across broadly stable boundaries. Complex cultural and social norms prescribed and proscribed all endeavours. Early European visitors were permitted to stay for mutual benefit.

After the early explorer, sealer, and whaler visitors, came settlers and agents of the empire to which they all belonged. The broadly beneficial co-existence of these people eventually led to a reframing of their relationship in a formal treaty between the empire and the people whose land and waterways these were.

KATHRYN GEORGE/STUFF

Stuff’s NZ Made/Nā Nīu Tīreni project: When the Treaty of Waitangi was signed, Māori owned more than 66 million acres of land. By 1975, almost 97 per cent had been sold or taken. (Last published February 1, 2021.)

The offer? As expressed in their own language, it was a continuation of the full and unfettered control (“tino rangatiratanga”) of all their people and estates, to which was added the rights of imperial citizenship. In exchange, the British Empire was granted a right of first refusal on potential tribal property disposals, plus the right to govern (“kāwanatanga”) – though who and what exactly it would govern was not stated.

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By contrast, in the English version – unintelligible to the signatories – sovereignty was ceded, not guaranteed as in the Māori version! All other conditions were essentially the same. This dual-language treaty, ambiguous at best, intentionally duplicitous at worst, is the legal, ethical, and constitutional foundation on which the nation in this land was founded.

Almost immediately this solemnly signed treaty was breached, as settler numbers grew, and pressure built to secure more land. Within a few decades, the local legal system created a common law precedent that would hold sway for the next 100 years, namely, that the pact between the Crown and the local ‘householders’ was a “simple nullity”. The scene was now set. Dispossession by fraudulent settlers and their leaders was followed by dispossession by force, and ultimately dispossession by law, all clothed in the virtuous cloak of democratic principle – majority rule.

ACT leader David Seymour has called for “a referendum on co-governance”. “It is disappointing to still see politicians ... calling for the virtuous hammer of democracy to be pulled out once again to suppress the legitimate rights of the original ‘householders’ of this land,” Helmut Modlik writes.

ROBERT KITCHIN/Stuff

ACT leader David Seymour has called for “a referendum on co-governance”. “It is disappointing to still see politicians … calling for the virtuous hammer of democracy to be pulled out once again to suppress the legitimate rights of the original ‘householders’ of this land,” Helmut Modlik writes.

This is the story of the origins of our nation. It’s not one to be proud of. That’s why it was never taught to any of us in school. That’s why many still do not want it to be taught.

It’s not our entire story, as there is much to be proud of, but it is how we started, how we proceeded, and why we find ourselves where we are today, still arguing over its relevance and implications. What we can’t argue over is its historical reality. What we do with it, though, is the real question.

As a person with German heritage, I experienced as a teenager the sting of shame as I watched a movie depicting Nazi atrocities. I eventually realised that my feelings were not sensible, as I wasn’t there in 1944, and I didn’t do any of the things depicted. In similar fashion, no-one in this land has any reason to feel guilt for the misbehaviour of our ancestors – we were not there, and we didn’t do any of it. The only thing we are responsible for is what we say and do today.

Helmut Modlik: “What can be assured is that a society that embraces the values of the original ‘householders’ of this land will be better for it.”

KEVIN STENT/Stuff

Helmut Modlik: “What can be assured is that a society that embraces the values of the original ‘householders’ of this land will be better for it.”

It is therefore disappointing to still see politicians seeking to be a voice for those longing for our colonial, monocultural past, calling for the virtuous hammer of democracy to be pulled out once again to suppress the legitimate rights of the original ‘householders’ of this land. Such behaviour was unethical and shameful in the past; it is more so today considering the lessons the past has taught us.

The time is here for an honest, open, and rational dialogue about resolving, not ignoring, our confused constitutional roots. The ideas of partnership and co-governance are a logically consistent response to that confusion, and to the broken promises of guaranteed tino rangatiratanga, protection of existing property rights, and equal treatment as citizens. How that partnership or co-governance manifests is entirely up to us!

What can be assured is that a society that embraces the values of the original ‘householders’ of this land will be better for it. What can also be assured is that enhancing the wellbeing, prosperity, and mana of the tangata whenua can only be good for the wellbeing, prosperity, and mana of the tangata Tiriti. It’s up to us!

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