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Putting te Tiriti at the centre of Aotearoa New Zealand’s public policy can strengthen democracy – here’s how

ACT party leader David Seymour’s demand that a referendum on Māori co-governance be a bottom line in any coalition agreement with the National Party was, if nothing else, well timed.

With the prime minister confirming public consultation on co-governance will begin this year, the place of te Tiriti o Waitangi (Treaty of Waitangi) in the nation’s life is front and centre once more.

Specifically, Seymour says successive governments’ interpretations of the English language version of te Tiriti – which differs in important ways from the Māori text negotiated at Waitangi in 1840 – is creating an “ethno-state”. He was later reported as saying:

[The government] believes there are two types of New Zealanders. Tangata whenua, who are here by right, and Tangata Tiriti who are lucky to be here.

ACT’s referendum would ask voters to agree that the Treaty means:

  • all citizens of New Zealand have the same political rights and duties

  • all political authority comes from the people by democratic means including universal suffrage, regular and free elections with a secret ballot

  • New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal.

Government ministers, the Māori Party and others have argued Seymour’s policy is itself divisive, and National Party leader Christopher Luxon has ruled out a referendum if he forms a government. But away from the electoral front line, important work on how te Tiriti can be applied at a policy level is already going on.

In 2020, we developed a policy evaluation method called “Critical Tiriti Analysis” (CTA) to address the problem of policy failure by ensuring distinctive Māori voices are heard. We recently explained these ideas to over 300 people at a public seminar.

CTA could be used by co-governance entities, but it doesn’t require them. It is especially relevant at the policy evaluation level, and is being used in government departments and elsewhere to help give Māori people – and their values and expectations – a fair chance of influencing policy decisions.

Read more: The Crown is Māori too - citizenship, sovereignty and the Treaty of Waitangi

How CTA works

CTA uses five indicators to evaluate policy against te Tiriti’s main elements: the preamble, three written articles and the oral commitment to protect “wairuatanga” (an expression of custom, spirituality and psychological well-being):

Part of the original Tiriti o Waitangi. Wikimedia Commons, CC BY-SA
  1. The preamble creates an expectation of good government, so CTA asks how policy has been informed by substantive Māori values and expectations, and seeks evidence that Māori are equal or lead parties in the policy process

  2. Article 1 granted the British Crown “kāwanatanga” over non-Māori people in Aotearoa. CTA requires the demonstration of equitable Māori engagement or leadership in prioritising, resourcing, implementing and evaluating policy

  3. Tino rangatiratanga” was promised in Article 2, so CTA requires evidence of meaningful and expert Māori involvement in policy drafting, and measures the influence and authority of Māori values in the policy process

  4. Article 3 of te Tiriti confers the right of Māori to actively engage in and influence policy development, implementation and evaluation. CTA involves evidence of Māori exercising their citizenship as Māori in policy development

  5. And finally, in terms of wairuatanga, CTA seeks policy acknowledgement of the importance of wairua, rongoā and wellness.

Read more: From Parihaka to He Puapua: it’s time Pākehā New Zealanders faced their personal connections to the past

CTA in practice

In 2020 we used CTA to review the New Zealand Primary Healthcare Strategy. It has since been used to evaluate government policies and practices including cancer control plans and disability strategies.

In 2019, Cabinet published a Te Tiriti o Waitangi/Treaty of Waitangi Guidance which set out questions policy advisers should consider in their advice to ministers. Our CTA review of the guidance suggested te Tiriti might also require asking the following questions:

  • what contributions have Māori people and ideas made to the drafting of this advice?

  • what do Māori say are the issues to consider and their interests in this issue?

  • what evidence is there that this policy preserves Māori authority, peace and good order?

  • could this policy disadvantage Māori in ways that it does not disadvantage others?

  • why is the government (or local government) presuming to make this decision?

  • why does the decision not, in part or whole, belong to the sphere of tino rangatiratanga?

Te Tiriti and liberal democracy

Ultimately, CTA could strengthen the pillars of liberal democracy, which developed precisely because people bring different values, experiences and aspirations to public life. Societies need to find fair and orderly ways of managing those differences. Suppressing them is not liberal and it’s not democratic.

When the ACT party formed a confidence and supply agreement to support a National minority government in 2010, the government agreed that New Zealand would accept the United Nations Declaration on the Rights of Indigenous Peoples.

Read more: Two inquiries find unfair treatment and healthcare for Māori. This is how we fix it

The declaration says treaties such as te Tiriti (the Māori text) should be honoured and that Indigenous democratic rights are no less important than anybody else’s. It explains how culture, language and resource rights have implications for what freedom and equality actually mean.

However, democracy doesn’t always meet these ideals. Māori have long been excluded from policy-making, leading to poor outcomes in areas like health.

CTA is intended as a mana-enhancing process based on the intent and actual wording of te Tiriti. This focus can help ensure government policies reflect Māori understandings, expectations and aspirations. Because if policy making doesn’t reflect these things, Māori are not politically equal – and that’s not liberal or democratic.

Read more: Indigenous recognition is more than a Voice to Government - it's a matter of political equality

Ensuring a Māori voice

These are first steps. Further development of CTA would consider how policy processes could be strengthened and how examples of effective policy making may be replicated.

We particularly want to see an active presence of Māori and Māori values in policy processes. This reflects our belief that effective public policy requires robust, critically and culturally informed engagement with the diversity of Māori policy thought and aspirations.

The CTA rationale involves meaningful Māori input throughout but also calls for a “final word” from Māori in the overall policy evaluation process, which should carry considerable weight.

At the same time, CTA does not diminish anyone else’s right to be well served by government policy. It doesn’t interpret te Tiriti to make anyone else feel “lucky to be here”. But it does provide protections against some people using policy to cause harm to others.

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