Claudia Orange on the future of the Treaty

I managed to make time yesterday to make it to Dr Claudia Orange's talk on "The Treaty in the 21st century: Where to now?" For those who don't know, Dr Orange is currently the director of history and Pacific cultures at Te Papa, a former editor of the Dictionary of New Zealand Biography, and author of The Treaty of Waitangi and a more recent, illustrated version. Her talk was part of an ongoing series of public lectures hosted by Massey Albany.

The first part of the talk was a quick overview of the past - why the Treaty had been signed, how it had been broken almost immediately by the settler government, and how despite this Maori had continued to regard it as the guarantor of their rights and adherence to it as the measuring stick for justice. It's important to remember that demands for justice under the Treaty didn't start yesterday; right from the beginning, Maori have sought unsuccessfully to enforce their rights, through court cases, political action, appeals to the monarch, and hundreds of petitions to Parliament. It is only since the 1970's that we have really started paying attention - and only since the 90's that we have started doing something about it.

Dr Orange devoted some time to the issue of "Treaty clauses" in legislation, pointing out that they are a recognition by successive governments that the terms of the Treaty had not been upheld in the past, and a commitment to ensure that those same mistakes are not repeated in the future. Directing decisionmakers to consult with iwi (as in the RMA) or make their decisions in accordance with the Treaty's principles (as defined by the courts and the government) helps prevent the sort of stupidity which led to the Motunui claim; allowing decisions to be challenged in court under such clauses "gives the Treaty some teeth" and provides a useful curb on government behaviour. If you believe that the Treaty is irrelevant and that the government has no obligation even to protect Maori property rights (however broadly or narrowly you define them), then this is obviously anathema - but if you believe that the crown should keep its word, then they are an essential means of ensuring that it does so. That's not to say they're perfect - there seems to be a growing consensus that greater specificity is needed, and this is reflected in more recent legislation - but the general idea of embodying our Treaty obligations in legislation is a good one.

Dr Orange also pointed out that of the 39 pieces of legislation containing Treaty clauses which National and NZ First want to gut, around half relate to concluded settlements. Amending this legislation so as to remove these clauses might open these settlements to renegotiation, and undo much of the good work of the 90's in this area.

Speaking on the settlements process, Dr Orange pointed out that we are still in the very early stages. According to the Office of Treaty Settlements' quarterly report, the first Treaty settlement was completed in 1992, so we've been doing this for only a little over ten years. That's a very short time in which to investigate and resolve 150 years on injustice. She also pointed out that the process can't be rushed - the historical investigation is a vital part of the process, providing a basis for negotiations as well as for the crown's apology. This takes time, and requires skilled staff - who are simply unavailable. Good historians don't grow on trees, and the shortage of them is a real problem (Stephen Paewai of Tamaki-Nui-a-Rua expressed similar views at the Treaty symposium I attended earlier in the year). Parliament is another bottleneck, with settlements taking between four and seven years to move from a Tribunal hearing to legislation due to Parliament's schedule and the relatively low priority accorded to settlement bills. Unlike the historians, this problem is entirely in the hands of politicians, and if they are looking to speed up the process, this is where they can make a real difference. But it will still take time; Dr Orange estimated that realistically it will take until 2020 to settle all historical claims, and that the claims by some parties to knock it all off by 2008 or 2010 were simply a fantasy.

Finally, there was some discussion on current political debates. On what real basis can we suggest that there are "two standards of citizenship" as claimed by the National party? We definitely had that long ago, and to the detriment of Maori. But claims that Maori are in some way advantaged or enjoy special privileges over other New Zealanders are simply false. What special provisions exist exist because Maori are still frequently in "catch-up mode" - in education, in health, in employment, and other areas. Where one group falls significantly behind in educational attainment, is grossly overrepresented in unemployment statistics, and has a life expectancy substantially below the average, even after controlling for socio-economic status, smoking, etc, then that is need, and if you believe that all New Zealanders should enjoy substantially the same basic life chances regardless of race, then additional funding to close that gap is justified. Likewise, where central and local government have a long history of systematically ignoring the interests of a particular group, then a legislative reminder that those interests must be taken into account along with everyone else's is justified - as is legislative recognition of property rights (in lands, forests, fisheries and other taonga) that pre-date the arrival of the crown in New Zealand. These aren't "special privileges" - it is ensuring the same substantive civil, political, economic and social rights as are enjoyed by every other New Zealander. If we are to be ashamed of anything, it is that such action is necessary - not that it is being taken.

There wasn't much time for questions, and the only one asked focused predictably on National's playing of the race card in the election campaign. Dr Orange thought that this was irresponsible and was extremely disappointed. Consigning the Treaty to the dustbin, as National and NZFirst want to do, wouldn't simply be unjust - it would also be unwise. We had to start paying attention to historical injustices in the 70's because Maori were powerful enough and assertive enough to give government no other option. Since then, they've only grown in power. Tearing up the Treaty will not keep Maori down, no matter how much Brash's culturally insecure backers want it to - it will simply lead to an angrier, nastier relationship. The dead white males backing this action don't seem to worry about this - after all, they won't have to live with the consequences - but the rest of us definitely should.