Thursday, July 20, 2006

Recognising the Treaty

Yesterday, parliament debated the Justices of the Peace Amendment Bill. It's a boring bill, designed to tweak the rules around JPs and ensure better training - but Maori Party co-leader Pita Sharples livened it up with this political hand-grenade:

The political link between the Treaty and its guarantees of equity; including the possibility of equal status with other New Zealanders in article three; is as relevant to the training of Justices of the Peace as it is in any other sector of policy.

And it here that we believe the inclusion of an allegiance, albeit a voluntary one, to Te Tiriti o Waitangi will be very helpful in strengthening the capability of Justices of the Peace to be responsive to the unique constitutional context of Aotearoa.

The Maori Party is introducing a Supplementary Order Paper to be discussed with the Oaths Modernisation Bill when it next comes before this House. The amendments would be introduced to include Te Tiriti o Waitangi in all oaths and affirmations.

(Emphasis added)

I support this plan. While purely symbolic - oaths and affirmations of office are not AFAIK enforceable in the courts - the symbolism is powerful and positive. The Treaty is our founding document, the fundamental compact on which our government and society is based, and regardless of whether it is legally enforceable or not, that fact should be recognised.


Or even better, remove references to the Queen and replace them with the Treaty...

Posted by Lewis Holden : 7/20/2006 03:08:00 PM

The Treaty is a founding document, but if one is to compare it to the US founding documents it is the Declaration of Independence, not the Constitution.

People don't swear to the declaration - they swear to the constitution - the document which legally established the government with a democratcic mandate.

The Treaty, like the Dec of Ind, is an important aspirational document, but not a legalistic document.

Posted by David Farrar : 7/20/2006 03:33:00 PM

DPF: Sure - and I think that that aspirational status is precisely what we would be recognising by incorporating a reference to the Treaty in oaths and affirmations of office.

Posted by Idiot/Savant : 7/20/2006 03:43:00 PM

From the the quote you give I/S Pita Sharples wants "Te Tiriti o Waitangi in all oaths and affirmations" - which would include not just oaths and affirmations of office, but oaths and affirmation in judicial proceedings as well.

Posted by Graeme Edgeler : 7/20/2006 03:54:00 PM

I'd noticed that, but I think its likely sloppiness. It's a passing reference in a speech on a different bill, not a full policy statement.

I will however be looking at this SOP carefully when it comes up.

Posted by Idiot/Savant : 7/20/2006 04:05:00 PM

Maybe, to recognise the increasingly secular nature of New Zealand, we'll be able to swear on a copy of the Treaty instead of a copy of the Bible =)

Posted by Graeme Edgeler : 7/20/2006 04:17:00 PM

Maybe we could make oaths of alligiance to God and Allah compulsory at the same time. Why disriminate about how to discrimate. To make access to employment conditional on belief systems seems rather un-liberal.

Posted by Anonymous : 7/20/2006 09:28:00 PM

Sharples' use of "equity" to describe Article 3 is sloppy, and his description of that Article as asserting "the *possibility* of equal status" is incorrect - it asserts/promises actuality. So Sharples can't control his conceptual apparatus enough to resist needling and browbeating even here.


I also disagree with the characterization of the Treaty as "aspirational" (i/s is wrong, although right about its non-legal character) - it's too sectarian for that (it's a founding document addresed to one group, the first people and to his credit Shaples seems to have that in mind - to have JPs remember their treaty obligations to the first people).

The US Dec. of Indep. is also not really that aspirational (dpf is wrong)... it has the brief flowery preamble about self-evident truths that everyone remembers but its body is a detailed laundry list of bitches aginst the King etc.. And of course it's absolutely *nothing like* the Treaty of Waitangi even in its flowery bits (dpf is wrong 2). The exact American equivs of the ToW (which Amercians generally never refer to - but they're important to first peoples) are here.

The right to establish government isn't a blueprint for the exercise of legitimate authority (that in principle everyone had a say in) that a written constitution is (dpf is right, james is wrong). The government by rights established in nz was the local branch of the British imperial super-state with its largely unwritten constitution. (Talk about stepping into a cocked slingshot!) The ToW is the on-ramp to the freeway (with some buffers for the mergers - the Treaty's audience) not the freeway (or its design).

But what is blindingly obvious to one reader of the Treaty (me say - admittedly, on my own account, not part of the intended audience) is not so to many others. That's the sort of document the treaty is - it both says too much and also too little and much of its signifcance depends on filling in various back-stories, all of which can be told in various ways. Putting the ToW front and center of anything now therefore asks for trouble and in a sense just gets its logical category wrong.... but, who knows, maybe the "healing our history"/general contrition/reparation benefits that i/s bangs on about really are substantial so maybe that's a mistake worth making/risk worth taking. (Neil may be wrong.)

Posted by Anonymous : 7/20/2006 09:49:00 PM

Neil: this isn't about what you swear by; it's what you swear to do. And I think that in modern New Zealand (as opposed to Bill Massey's or Rob Muldoon's or Don Brash's New Zealand), having those wanting to hold public office as MPs, cabinet ministers, judges, work in the armed forces or the police, or become citizens swear to uphold the Treaty (in addition to doing whatever job they're doing, and/or respecting the democratic values of New Zealand - see the Oaths And Declarations Act 1957 and Oaths Modernisation Bill for the details) seems entirely appropriate.

As for "discrimination", how do you feel about having to swear to serve the monarch? Or doesn't that count?

Posted by Idiot/Savant : 7/21/2006 12:24:00 AM

Which text (Maori or English) would they be swearing to, would they be swearing to the letter of the treaty, or its "living" (i.e. changing) interpretations, and who in their right minds swears allegiance to a piece of paper anyway? It's not even a document filled with ideals, it's a governance arrangement.


Posted by Anonymous : 7/21/2006 01:32:00 PM

M'lud: I assumed that Sharples and i/s were talking about the Maori version together with its transltion back into english.... that's all activists in the area really rate and, from my perspective, it has the advantage of confirming the audience for and sectarian character of the document. And while you're right that the ToW contains no ideals (at least not without some serious tea-leaf reading), you're wrong about it containing a governance arrangement...It doesn't any more than a simple "for sale" sign contains the thing sold. It really is just an on-ramp to the British empire addressed to the natives and giving them some basic assurances. i/s's question about "What/who are you gonna swear to? The Queen?" is a good one for Brits too who want to step away from the archaisms of monarchy, but they don't have a written constitution either so it's as difficult for them to answer as it is for us. The ToW is no answer for us to that question, indeed it's absolutely the wrong *sort* of thing to answer that question... but NZ-ers have never shown much interest in or talent for getting things like this right before, so the smart money says they won't now either.

Posted by Anonymous : 7/21/2006 08:34:00 PM