Happy Waitangi Day

The following commentary is provided by Dr Carwyn Jones (Ngāti Kahungunu and Te Aitanga-a-Māhaki), a senior lecturer at Victoria University of Wellington's Faculty of Law.

A profile image of Dr Carwyn Jones.

A few years ago, then-Labour leader David Shearer decided he wanted to encourage people to think more positively about Waitangi Day by wishing everyone 'Happy Waitangi Day'. It never really caught on, to be honest.

But I think David might have been on to something. I don't mean that repeating a glib phrase will make people feel better about our national day, or the Treaty, or the state of race relations in this country. Obviously that's not going to get you very far. But we can do things that make a real and positive difference to the way we celebrate our national day, improve our race-relations, and better realise the partnership embodied in the Treaty. And we can do this precisely because of what happened at Waitangi on 6 February 1840.

Not all of us will be happy with the way Māori rights have been dealt with over the life of the Treaty. Few people now deny that there were serious historical breaches of the Treaty, with significant impact on Māori communities. And many New Zealanders, myself amongst them, would argue that we are still a long way from giving effect to the guarantees made to Māori in the Treaty.

I also know that there are some people who feel like the Treaty has been used to unfairly promote Māori interests. Well, I disagree, but you know what? The great thing about the Treaty is that it gives us a starting point to discuss these issues.

The Treaty of Waitangi provides a framework for us to engage on important issues of indigenous rights and the constitutional legitimacy of our government. For example, one of the more politically contentious issues of the last couple of years has been the Trans-Pacific Partnership Agreement. Although it now seems unlikely to proceed at all, one of the issues with the TPPA was a question about how it would affect Māori rights. Would it erode them? The government argued that there were sufficient protections—based on the Treaty of Waitangi. Fortunately, in the Treaty, we have a principled framework for resolving questions like these. The Treaty establishes a partnership in which public power will be shared. So, discussion around the TPPA, or any future agreement, could be based on questions like: Would entering into this agreement in the way the government proposes be consistent with the kind of good faith envisaged by the Treaty? Would it respect the rights and autonomy of Māori, government, and all New Zealanders?

Without that this kind of framework we could end up in a situation where things are determined by who can yell the loudest, or who has the political power to force their own way. No matter what your view on the particular issue, that approach cannot be preferable to a principled and respectful debate. Funnily enough, the most frequent complaint about the events that take place at Waitangi is that they don’t engender respectful debate. If you want to change that, reach for the Treaty.

If there is one thing we all ought to celebrate, it’s the imagination, courage, and trust our ancestors demonstrated in envisaging a system of constitutional government that recognised the rights of the indigenous population and all those who came later. They imagined a world in which treaty partners, each exercising their own self-determination, could live on the same set of islands and come together to address matters of mutual interest.

Some people might say this is idealistic. Well, maybe it is. But it‘s not about pretending we have always lived in perfect fulfilment of a harmonious treaty partnership, and will effortlessly do so forever more. There have been, and will continue to be, challenges. But part of the beauty of the Treaty of Waitangi is that it gives us a roadmap to overcoming those challenges in a principled way. And I'm betting that there are more than enough New Zealanders today who can show the same sort of imagination, courage and trust in one another that our ancestors demonstrated 177 years ago.

Not all countries have such a moment of consent upon which a partnership can be built. Other places, such as some states in Australia, are at this very moment pursuing treaty relationships with Indigenous Peoples because they see the value in having an agreed framework for engagement.

So, whatever you think about the Treaty, there is no need to cringe about Waitangi Day—just be part of making it work and perfecting the Treaty partnership. Be inspired by the example of our ancestors. Be encouraged by the progress that has been made. Be energised by the challenge of the future.

And have a happy Waitangi Day.