So I’ve been invited as a Tiriti advocate to many different forums – boardrooms, court hearings, mediations, workshops, research projects, lectures… across both public and private sectors, in philanthropy, education, media, I.T., science – suffice to say I’ve seen and heard te Tiriti spoken about in many different ways and settings. After a while, you hear very similar arguments coming up about why people “shouldn’t” or “don’t feel it’s necessary to” honour te Tiriti.
As common as some of these arguments are, I also often hear people fudging their responses, getting flustered, or not quite nailing it as neatly as they could. It has struck me sometimes, that we are much more powerful at talking about why te Tiriti should be honoured, than we are deconstructing arguments against it. So here, I thought I’d compile a list of the top 5 arguments I hear, along with some options for how you respond.
- “We don’t have a legislated responsibility to honour Te Tiriti”
I’ve heard this one come from universities, polytechnics, schools and even councils. It’s generally arising from the fact that the Act which they have to operate under (eg the Education Act or the Local Government Act). In some spaces it’s called “the statutory silence” argument (our legislation is silent on it so we have no responsibility).
Legally, it’s wrong. Te Tiriti is the constitutional backdrop of all legislation, whether it is mentioned explicitly in their specific act or not, and in part this is because parliament draws its existence from te Tiriti (even though its current form of existence is in violation of te Tiriti). So the legislation, and institutions created through that legislation, arguably wouldn’t exist were it not for te Tiriti.
The legal reality in Aotearoa is that all public institutions who draw funding from the Crown and operate under Crown legislation, carry enduring Tiriti responsibilities unless it is explicitly stated that they do not.
This has been reaffirmed through the courts multiple times, including:
- NZ Māori Council v Attorney-General (1987)
- Huakina Development Trust v Waikato Valley Authority (1987)
- NZ Māori Council v Attorney-General (Broadcasting Assets) (1994)
- Attorney-General v Ngāti Apa (2003)
There is an enduring discussion on whether te Tiriti should be made more enforceable, sure, but that doesn’t depend on whether it is explicitly mentioned in legislation or not. More importantly the question on whether it is constitutionally relevant to ALL legislation has been thoroughly dealt with in law.
Finally, if your moral standard is determined by the bare legal minimum, you’re underserving yourself, and the greater population.
- “We aren’t a government agency, so te Tiriti doesn’t apply to us”
Usually heard from NGOs, charities, and the private sector. It sounds legally tidy, or at least more legally tidy than the earlier argument, but it rests on a very narrow reading of Te Tiriti and of how power actually works.
It helps to be very succinct and clear here:
Te Tiriti obligations don’t come from being a government agency.
They come from operating within a Treaty-based society and benefiting from Crown authority.
Te Tiriti o Waitangi is a constitutional reality, not a legal technicality. The organisation in question may not be the Crown — but it’s inarguable that they operate because of the Crown’s authority, within a system created through Te Tiriti, and often using powers, assets, or legitimacy that flow from it.
Are responsibilities different for the public sector? Somewhat – the public sector have direct legal duties, but Tiriti expectations and responsibilities exist for everyone in the “nation-state” of New Zealand, because te Tiriti is the basis of the “nation-state” of New Zealand.
Let’s also not forget that the Crown regularly out-sources their work to NGOs and the private sector, and often rely upon private companies for carrying out governmental duties. If none of these groups had any Tiriti responsibilities, the Crown could evade all of its own Tiriti obligations by simply outsourcing everything. Unsurprisingly, the Courts have also repeatedly dismissed this argument, and the arguments in point 2 absolutely apply here.
But even if your business is not dealing with duties that were delegated by the Crown, te Tiriti is a social contract, it is the foundation of our nation, and it is absolutely intended to guide how power operates in Aotearoa.
- “We treat everyone the same”
And similar variations such as “Māori are a stakeholder, alongside many others” or “We believe in equality” or “We don’t single out any one group” or “We apply the same rules to everyone” or “We don’t do identity politics”.
This argument is a big old red-flag that you’re probably dealing with someone who harbours anti-Māori hostility. Don’t get angry, that will just reaffirm to them their own biases. Instead, you’re going to unpick their argument to expose it for what it is, by pointing out the following:
- This argument is based on the assumption that te Tiriti is about special benefits to Māori – that is a commonly held assumption (and is often why we see “Treaty matters” placed in the corner under “Māori issues”) – and it is wrong. Te Tiriti is not a “Māori” issue – it is the basis of this entire country. The only people who received new benefits from te Tiriti was (and still is) Non-Māori. Te Tiriti is what allowed non-Māori to call this place home, and it outlined the conditions for their ability to do that.
- New Zealand, as a nation-state, has been built off of the economic and political dispossession of Māori, and not only does that drive enduring reality today, but it is also not a historical artifact – much of what was taken illegitimately, still remains taken. New Zealand systems, by default, provide much less opportunity for Māori to thrive in the same way as Non-Māori (and particularly pākehā) do. Equality as a moral principle and human rights standard is never meant to mean “keep treating oppressed people the same as unoppressed people, to maintain the oppression” – in fact Human Rights authorities say exactly the opposite: in instances where a history (or enduring reality) of oppression exists, you must treat groups differently, in order to attain equality.
- Te Tiriti is also not a moral argument to be pitted against human rights standards such as equality. It is a constitutional document which provides the basis of non-Māori existence in Aotearoa-New Zealand. Te Tiriti was put in place precisely to protect the human rights of Māori from the harms of colonial greed and imperial expansion. The story of human rights abuses against Māori can be told very accurately through the story of Tiriti violations, which is available to read through the Waitangi Tribunal reports. For these reasons and more, numerous human rights bodies and organisations acknowledge te Tiriti o Waitangi as a human rights document, and the United Nations Human Rights Council has repeatedly called for it to be understood and honoured throughout Aotearoa. If you are interested in human rights such as equality, you would enthusiastically embrace the honouring of te Tiriti.
- “We don’t deal with Māori”
Heard this one from a lab one time: “But we deal with specimens and bacteria we don’t deal with Māori, we don’t even deal with humans”. Ok but apart from the fact that this was a Crown funded lab (so straight to point 1) – that science will inevitably be used in a way that impacts upon Māori, if it is in Aotearoa-New Zealand. Whether it’s science for curing cancer (and who do you think is the most likely group to have cancer), or measuring water samples (taken from which awa?) – questions of where you got the sample from, and how, and for what purpose, and whose benefit, will inevitably lead you back to your Treaty responsibilities. But that’s just one context. Other versions of this colonial logic include:
- “Our work isn’t Māori-facing.”
- “We don’t deliver services to iwi/hapū.”
- “We work with the whole population.”
In which case, I recommend you refer them back to point 3a, as this is clearly a case of people misunderstanding who Te Tiriti is for. Te Tiriti is not just about delivering Māori programs and services – it is about how power is managed in Aotearoa. It is about governance, decision-making, participation in power, and protection of taonga. It doesn’t matter if its in a lab, or with animals, or with “all of New Zealand, or even specifically with non-Māori groups, it doesn’t matter if it’s publicly or privately funded – To be crystal clear: If your work is in Aotearoa-New Zealand, or for Aotearoa-New Zealand, you have Tiriti responsibilities.
- “But look we have these other “tanga” principles”
A common practice, particularly in the private sector, is to contract Māori consultants to develop principle documents, usually laden with tikanga-based terms like “manaakitanga”; “aroha” etc etc, and then present that as a supplement for a Tiriti statement, or real analysis and response towards their Tiriti responsibilities. It’s like they feel that they can use tikanga and good intentions to make te Tiriti redundant. Yeah, nah.
Look, nobody is going to argue against being tikanga-led, but that doesn’t not replace your Tiriti responsibilities. One of the issues with replacing Tiriti responsibilities with tikanga statements is that tikanga can be very amorphous and interpretive, and there is no system for accountability in how it is interpreted or applied. People can, and do, often make it up their own broad interpretation that operates as a costume, while they go about violating Tiriti-affirmed rights such self-determination, protection of taonga, or equity. Te Tiriti o Waitangi is a promise – if you are at all interested in honouring tikanga, start with honouring te Tiriti. Honouring promises is a very basic tikanga that applies to everyone, and ignoring that promise violates most, if not all tikanga Māori. Start with honouring te Tiriti, and that will frame all other tikanga that you may wish to also honour. Ignore and violate te Tiriti, and your other tikanga become at best superficial, and at worst, forms of exploitation of te reo and Mātauranga Maōri.
There are more arguments, but these are a handy top 5. Feel free to drop me a line on Patreon if you have other fictitious anti-Tiriti arguments you’d like deconstructed.
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